The Board’s power to conduct its own fact-finding is limited by regulation, but the scope of that limitation has been the subject of both BIA precedent decisions and several circuit court decisions. So, what can the Board review?

A new decision from the Seventh Circuit describes very well the limitations on the Board, despite its own stated belief, to reverse an Immigration Judge’s fact-finding related to the risk of harm an asylum applicant will face.

The regulation at 8 C.F.R. §1003.1(d)(3) says

(i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.
(ii) The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.

(iv) Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service.

The Board held in Matter of V– K–, 24 I&N Dec. 500 (2008) that this regulation still allows it to disagree with an Immigration Judge’s prediction about the future harm an asylum applicant will face.

But as the Seventh Circuit pointed out, five circuits have rejected this view.  And now the Seventh Circuit is the sixth court to reject it.  If the Board thinks it can substitute its fact-finding for an IJ’s, that view is not properly grounded in the wording of this regulation.

As Judge Easterbrook wrote, “The problem is that the Board’s arguments would be better as reasons to revise the regulation than as reasons to interpret it differently from the similar language that governs relations between federal trial and appellate courts.”

The Attorney General promulgates the regulations and can re-write them if he pleases.  But without doing so, the Board cannot avoid the plain language of 8 C.F.R. §1003.1 by willing it to say something it does not.

[2015 Update – the BIA has now published a new decision outlining when the Board can review predictive fact-finding as opposed to historical fact-finding. Matter of Z-Z-O-]