BIA Botches Standard of Review: Arreaga-Bravo v. Atty. Gen.

Arreaga-Bravo v. Atty. Gen.

"When an Immigration Judge (“IJ”) makes findings of fact in relation to an individual’s petition for relief under the Convention Against Torture (“CAT”), the Board of Immigration Appeals (“BIA”), in reviewing the IJ’s decision, must defer to the IJ’s factual findings unless they are clearly erroneous. Here, the IJ held that Petitioner Juliana Martirez Arreaga-Bravo demonstrated that she will more likely than not experience torture if she returns to Guatemala, and that the Guatemalan government would acquiesce in such torture. The IJ thus granted her application for CAT relief and ordered withholding of removal. The Department of Homeland Security appealed, and the BIA reversed—instituting a removal order. In coming to its conclusion, the BIA explained that it was not “sufficiently persuade[d]” that Arreaga-Bravo faces a particularized risk of torture and that it was “unable to agree” with the IJ’s conclusions. A.R. 5. Rather than defer to the IJ’s factual findings and review for clear error, the BIA inserted itself into the factfinder role and disagreed with the IJ’s weighing of the evidence. This was error. As a result, we will vacate the BIA’s final order of removal and remand with instructions to reinstate the decision of the IJ."

[Hats off to Brett Tarver and Anthony Vale!]