Saturday, October 25, 2008

Marinescu (not precedential): BIA Wrongly Overturned IJ Factual Findings For No Stated Reason

Marinescu v. Mukasey
Not Precedential
No. 05-2797
June 26, 2008

For the respondent, Anthony R. Holtzman (argued) and David R. Fine of Kirkpatrick & Lockhart Preston Gates Ellis in Harrisburg, PA.  For the government, Mary C. Frye of the US Attorney in Philadelphia, PA.

Judges McKee, Stapleton, and Nygaard -- opinion by Judge Nygaard.  Dissent by Judge Stapleton.

Immigration Judge Walt Durling made numerous factual findings in favor of a Roma man who feared persecution and granted relief.  The government appealed and the BIA overturned IJ Durling's decision and in the course of its decision, it overruled IJ Durling's factual findings but the BIA offered no reason for its action.  Overturning factual findings without offering any explanation violates the law, because the BIA can only overturn factual findings if they are clearly erroneous -- and the BIA must explain how they were so clearly erroneous.

The IJ concluded that the Romanian government's efforts to protect the Roma were essentially a sham.  The BIA offered no explanation for overturning the finding and ruling the opposite -- that the Romanian government's efforts are effective.

The IJ concluded that 95% of Roma in Romania live in overt fear of violence.  The BIA essentially overturned this factual finding by analyzing what it referred to as cases of unjustified violence.

The regulations that cover the BIA prohibit the BIA from engaging in de novo review by substituting its interpretation of the facts for the IJ's interpretation.  Therefore, the Third Circuit overturned the BIA.

In a dissent, Judge Stapleton argues that the BIA's discussion about whether the Romanian government's efforts were effective were irrelevant because the BIA prefaced its commentary with the phrase "furthermore, we note."  Judge Stapleton views the BIA's conclusion that there was not a clear probability of persecution to be a legal conclusion, not a factual issue.


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