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"The Board has interpreted §1003.1(d)(3)(i) in a way that it believes makes clauses (i) and (ii) harmonious by relying on the longstanding distinctions between adjudicative and legislative facts, and between historical (case-specific) facts and those aspects of discretion or judgment that concern country-wide conditions—subjects on which the Board thinks that the United States should be able to speak with one voice, rather than through a cacophony of immigration judges. 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. ...
Perhaps the Board’s view that it may make independent decisions about predictions is a consequence of giving itself too little leeway to find IJs’ predictions clearly erroneous. A federal court of appeals would be inclined to think it a clear error, correctible under Rule 52, for a district judge to say that a 1-in-100,000 chance of death meets a more-likely-than not burden of persuasion. But that’s not what the Board did. Instead it claimed a right to substitute its judgment for that of the IJ without finding a clear error. That is a mistake under the regulation. ...
The question for the Board on remand is thus not whether aggregate data imply that Rosiles-Camarena is likely to be killed, but whether the IJ clearly erred in finding that he is more likely than not to be persecuted. That question is for the Board in the first instance; we do not express an opinion on it.The petition for review is granted, and the matter is remanded to the Board for proceedings consistent with this opinion." - Rosiles-Camarena v. Holder, Aug. 21, 2013. [Hats way off to Maria Baldini-Potermin!]