Immigration Law

CA9 on Withholding, Philippines, Sexual Orientation, Clear Error: Vitug v. Holder

"Dennis Vitug, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) order vacating an immigration judge’s (“IJ”) grant of withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. The evidence compels the conclusion that Vitug will more likely than not be persecuted if he is removed to the Philippines. We therefore grant the petition in part,reversing the BIA’s denial of withholding of removal. ... We conclude that the BIA failed to apply the clear error standard of review to the IJ’s factual findings, and also abused its discretion by ignoring factual findings of the IJ. In similar situations, we typically remand so that the BIA may apply the correct standard of review and properly consider the IJ’s factual findings. See, e.g., Ridore, 696 F.3d at 922; Rodriguez, 683 F.3d at 1177; Brezilien v. Holder, 569 F.3d 403, 415 (9th Cir. 2009). However, we need not do so here because, as we explain below, substantial evidence does not support the BIA’s denial of withholding of removal." - Vitug v. Holdeer, July 24, 2013.

[Hats off to (pro bono?) counsel, Joanna S. McCallum (argued) and Brad W. Seiling of Manatt, Phelps & Phillips, LLP.]