NAVARRETE NAVAS v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-01-25No. No. 18-72020

Summary · law.co

Holding. The petition for review was granted and the case was remanded because the BIA improperly engaged in de novo fact-finding rather than reviewing the IJ's factual findings for clear error as required by regulation and case law.

Pablo Antonio Navarrete Navas, a Salvadoran citizen, sought review of a Board of Immigration Appeals decision that reversed an Immigration Judge's approval of his adjustment of status application. The central dispute concerned the standard of law that the BIA should have applied when reviewing the IJ's factual conclusions. While courts generally cannot review the BIA's discretionary denial of adjustment of status, they retain jurisdiction to review questions of law, including whether the BIA followed the correct review standard. The BIA is required to review the IJ's factual findings only for clear error—meaning it cannot simply substitute its own fact-finding judgment for the IJ's determinations.

The court found that the BIA violated this standard by engaging in de novo (fresh) fact-finding rather than the required clear error review. Specifically, the BIA contradicted the IJ's findings about the family's medical and financial circumstances—including assertions about the son's ongoing dental needs, the severity of the wife's health problems, and the family's housing situation—without explaining why those IJ findings were clearly erroneous. The BIA also made entirely new factual findings that the IJ had never addressed. Because the BIA failed to apply the proper legal standard, the court granted the petition and remanded the case for the BIA to conduct the correct clear error analysis.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Proper standard of appellate review the BIA must apply to an IJ's factual findings
Whether the BIA violated the clear error standard by substituting its own fact-finding
Scope of federal court jurisdiction over BIA decisions on adjustment of status

Procedural posture

The petitioner sought review of a BIA decision reversing an IJ's approval of his adjustment of status application, challenging the legal standard the BIA applied.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Pablo Antonio Navarrete Navas (“Navarrete”), a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals (“BIA”) decision reversing the 2017 Immigration Judge (“IJ”) decision granting his application for adjustment of status. Navarrete claims that the BIA applied the wrong standard of review. Our jurisdiction is governed by 8 U.S.C. § 1252(a)(2)(D). See Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012). We grant the petition and remand.

Because the parties are familiar with the facts, we do not recite them here. Generally, this Court cannot review the BIAs discretionary decision to deny a noncitizen adjustment of status under 8 U.S.C. § 1255. Torres-Valdivias v. Lynch, 786 F.3d 1147, 1151 (9th Cir. 2015). However, this Court retains jurisdiction over constitutional questions and questions of law. Id. And whether the BIA applied the correct standard of review to the IJs decision is a question of law this Court reviews de novo. Vitug v. Holder, 723 F.3d 1056, 1062–63 (9th Cir. 2013). The BIA may not engage in de novo review of the IJs findings of fact. Id. at 1063; 8 C.F.R. § 1003.1(d)(3)(i). Instead, the BIA shall review the IJs factual findings for clear error. Vitug, 723 F.3d at 1063.

The BIA engaged in de novo fact-finding by contradicting the IJs findings with respect to the familys medical and financial needs without rejecting those findings as clearly erroneous. The BIA found that Navarretes sons dental problems had been corrected. This is contrary to the IJs finding that Navarretes son “continues to need orthodontic care to fully correct [his dental issues].” Similarly, the BIA characterized Navarretes wifes health problems as “relatively minor,” even though the IJ found that Navarretes wife feels ill on a weekly basis and depends on Navarrete for her care and to pay for her medical expenses. Lastly, the BIAs finding that Navarretes children and wife could stay in the home that Navarrete “owns” contradicts the IJs finding that the family would lose the home.

Additionally, the BIA made factual findings that the IJ never made: (1) that Navarretes father-in-laws transfer to a nursing home decreased Navarretes responsibility; and (2) that Navarrete could find employment in El Salvador.

For these reasons, we conclude that the BIA failed to apply the clear error standard of review to the IJs factual findings. See 8 C.F.R. § 1003.1(d)(3)(i) (“Facts determined by the [IJ] ․ shall be reviewed only to determine whether the findings of the [IJ] are clearly erroneous.”); see Vitug, 723 F.3d at 1064; see also Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA 2015) (“[A]n [IJ]’s predictive findings of what may or may not occur in the future are findings of fact ․”). We therefore grant the petition and remand for the BIA to review the IJs findings of fact for clear error.

PETITION FOR REVIEW GRANTED; REMANDED.