Thursday, September 10, 2009

Xie (not precedential): BIA Used Wrong Standard To Overturn IJ's Factual Findings That Favored The Asylum-Seeker

Xie v. Holder
August 24, 2009
Not Precedential

Judges Chagares and Hardiman with District Judge Garbis. Opinion by Judge Chagares.

Alan M. Strauss of the law office of Stanley H. Wallenstein in New York, NY for Ms. Xie. James A. Hunolt, Sada Manickam, and David Schor (argued) of the Justice Department's OIL for the government.

Where an IJ makes a finding, the BIA should review those factual determinations under the clearly erroneous standard. 8 CFR 1003.1(d)(3). The BIA overturned some of the IJ's factual findings through an improper de novo review rather than under the proper standard. Same with overturning the IJ's factual finding that Ms. Xie was credible.


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