"The Board of Immigration Appeals’ (BIA or Board) governing regulations limit its scope of review of an immigration judge’s (IJ) factual findings. Under 8 C.F.R. § 1003.1(d)(3)(i), (iv), the BIA may only review findings of fact for clear error, and is prohibited from making its own factual determinations. In this petition for review, which arises in the context of allegations of drug smuggling, we consider whether the Board exceeded these limitations when it reversed the IJ’s determination that petitioner Rene Lopez-Rodriguez was admissible and concluded instead that Lopez-Rodriguez was inadmissible under 8 U.S.C. § 1182(a)(2)(C). Because we conclude that the Board committed legal error by making its own factual determination and engaging in de novo review of the IJ’s factual findings, we grant the petition and remand for further proceedings." - Lopez Rodriguez v. Holder, June 27, 2012.
[This was a pro bono case I accepted from the EOIR Pro Bono Project at the BIA level many years ago; when we lost at the BIA, I was so irritated I took it to the 9th on my own nickle. - DMK]