By Michelle N. Mendez
The Board of Immigration Appeals (BIA) reviews questions of fact and questions of law under different standards. Per 8 CFR § 1003.1(d)(3)(i) questions of law are subject to the “de novo” standard, while 8 CFR § 1003.1(d)(3)(ii) dictates that questions of fact are subject to a “clear error” standard. The “de novo” standard allows the Board to conduct its own independent analysis of any possible misstatements of fact, errors in analysis, flawed reasoning, or improper application of law. In contrast, the “clear error” allows the BIA that level of independent analysis only if the findings of the immigration judge are proven to be “clearly erroneous.” The difference between these two BIA standards of review highlights the importance of determining at the immigration judge level if an issue is one of fact or law. Determining if an issue is one of fact or law, however, is not always obvious or absolute, as the BIA recently reminded us in Matter of Z-Z-O, 26 I&N Dec. 586 (BIA 2015).
In Matter of Z-Z-O, the BIA considered the appeal of a Chinese national whose claim for asylum, withholding of removal, and protection under the Convention Against Torture was based on China’s one-child policy. These forms of relief were denied by the immigration judge. The respondent, a father, claimed past persecution because his wife suffered a miscarriage of their second child after family planning officials at his wife’s work forcibly investigated her pregnancy and caused her to fall down a flight of stairs. Though recognizing the tragedy of the miscarriage, the BIA disagreed that the incident constituted persecution of the father on account of a protected ground.
The BIA found that the miscarriage did not occur with intent by the family planning officials and that the wife was never physically harmed. Since respondent’s experiences in China did not amount to past persecution, the respondent was unable to benefit from a presumption of well-founded fear of persecution. Had the respondent benefitted from this presumption, the burden of proof would have shifted to DHS to rebut the presumption that the respondent had a well-founded fear of persecution. Without the benefit of the presumption, that meant the respondent maintained the burden of establishing that he has a well-founded fear of future persecution on account of a protected ground upon his return to China.
A respondent claiming a well-founded fear of future persecution must show a subjectively genuine and objectively reasonable fear of future persecution. Because the assessment is one of future persecution, that assessment requires predictions and forecasting by the immigration judge. These have traditionally been viewed by the BIA as non-fact finding and thus not liable to the clear error standard of review. See Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008); Matter of V-K-, 24 I&N Dec. 500 (BIA 2008). However, the majority of the U.S. circuit courts have held that an immigration judge’s findings regarding the likelihood of future events is a finding of fact that the BIA must review under the clearly erroneous standard. With this pressure from the U.S. circuit courts, the BIA acquiesced to the view that the immigration judge’s predictive findings are findings of facts to be reviewed only for clear error. The BIA therefore and overruled its prior holdings under Matter of A-S-B, 24 I&N Dec. 493 (BIA 2008) and Matter of V-K, 24 I&N Dec. 500 (BIA 2008).
The BIA then specified that once the immigration judge’s predictive findings withstand clear error review, it would continue to review de novo the “legal determination” of whether an asylum applicant had established an objectively reasonable fear of persecution based on the immigration judge’s findings of what events may occur if the applicant returns to his/her country of origin. Applying this framework to Matter of Z-O-O, the BIA upheld the immigration judge’s factual findings: (1) after the respondent received the purported sterilization notice, he faced no reported harm when he returned to China following a trip abroad; (2) the authorities have not subjected the respondent’s wife in China to forced sterilization; and, (3) the authorities’ focus was the respondent’s wife, not the respondent. The BIA then held that “[b]ased on the Immigration Judge’s factual findings and the existing evidence of record, we conclude that he properly determined that the respondent did not satisfy his burden of showing that his fear of being sterilized by force, or of suffering other persecutory harm upon his return to China, was objectively reasonable.” In other words, the respondent did not meet his burden of showing a well-founded fear of future persecution. The judge had thus properly denied asylum and the BIA consequently denied the appeal.
Matter of Z-O-O reminds us of the importance of establishing a strong factual record of persecution before the immigration judge. The respondent’s testimony, expert testimony, reputable country conditions reports, and other documentary evidence are part of a strong factual record. Otherwise, we face the tough “clear error” standard of review before the BIA.