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Immigration Law

CA11 on 'Clear Error' - Zhu v. U.S. Attorney General

"At issue in this appeal is whether the BIA erred when it overturned the immigration judge’s (“IJ”) factual findings -- particularly the finding that Zhu would likely be forcibly sterilized upon returning to China -- not through the prism of clear error review, but rather after its own de novo consideration of the evidence.  Under the relevant regulation, 8 C.F.R. § 1003.1(d)(3), the BIA is empowered to review an IJ’s factual findings for clear error only.  After thorough review, we conclude that the BIA committed legal error by making its own de novo factual findings.  We, therefore, vacate the BIA’s decision and remand so that the BIA may review the IJ’s decision under the proper clear error standard." - Zhu v. U.S. Attorney General, Jan. 4, 2013.  [Hats off to Yanfei Shen and Ted Cox!]