Monday, August 02, 2010

Kaplun: Assessment Of What Will Happen Is A Fact That An IJ Finds

Kaplun v. Holder
April 9, 2010
Judges Ambro, Smith, and Paul R. Michel (Chief Judge of the Federal Circuit). Opinion by Judge Ambro.

For Mr. Kaplun, Thomas E. Moseley of Newark, NJ. For the government, Manuel A. Palau (argued), Terri J. Scadron, Gregory G. Katsas, Paul F. Stone.

Overturning the BIA in a case decided by IJ Charles M. Honeyman. IJ Honeyman granted withholding of removal and protection under CAT (Convention Against Torture) but the BIA overturned it through de novo review.

The Third Circuit overturned the BIA for using the wrong standard of review when analyzing the IJ's finding about the probability Mr. Kaplun would be tortured in the future. The BIA should have reviewed the IJ's ruling de novo as opposed to the clearly erroneous standard (where the BIA will only overturn the IJ if its ruling is clearly erroneous).

The Third Circuit explained that the probability something would happen in the future can be a factual finding. For example, whether it likely will take less than 3 hours next week to drive 100 miles from one house to another. Its likelihood can be established through evidence of the distance, traffic patterns, and typical traffic conditions.

In deciding whether someone is likely to be tortured, there are two issues -- (1) what is likely to happen and (2) does what is likely to happen amount to the legal definition of torture.

This second question -- whether what likely will happen is something that amounts legally to torture -- is a legal question that the BIA must consider de novo. But the first question is a factual finding and the BIA erred in this case by conducting de novo review.


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