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Garcia Rogel v. Garland (unpub.)
"Petitioner ... argues that even if the police report was properly admitted into evidence, the IJ erred by giving the report substantial weight, contrary to In re Arreguin de Rodriguez, 21 I. & N. Dec. 38 (B.I.A. 1995). ... We agree with Petitioner that the IJ in this case did not comply with Arreguin. Arreguin directs that arrest records that did not result in a conviction or are not corroborated should not be given “substantial weight” in the decisionmaking process. 21 I. & N. Dec. at 42; see Sorcia, 643 F.3d at 126 (“[I]nsofar as the BIA declined to give substantial weight to Sorcia’s charge, it was following, rather than contradicting, precedent.”). Although the BIA in Arreguin did not quantify the meaning of “substantial weight,” the term surely encompasses the dispositive weight that the IJ accorded the police report at issue here. ... Because the IJ did not comply with Arreguin, a single member of the BIA was not authorized to hear Petitioner’s appeal of the IJ’s decision. By default, an appeal to the BIA “shall be assigned to a single . . . member for disposition” unless it “meets the standards for assignment to a three-member panel under [8 C.F.R. § 1003.1(e)(6)].” 8 C.F.R. § 1003.1(e). But “if a case does meet the standard for adjudication by a three-member panel, a single member shall not decide it.” Quinteros-Mendoza v. Holder, 556 F.3d 159, 162–63 (4th Cir. 2009) (emphasis in original). One of those circumstances requiring review by a three member panel is when the IJ’s decision “is not in conformity with the law or with applicable precedents.” 8 C.F.R. § 1003.1(e)(6)(iii). Petitioner’s appeal of the IJ’s decision therefore should have been adjudicated by a three member panel of the BIA. ... In conclusion, we grant the petition for review so that the IJ may reconsider the police report in light of In re Arreguin de Rodriguez, 21 I. & N. Dec. 38 (B.I.A. 1995)."
[Hats off to Superlitigator Ben Winograd!]