BIA OVERRULES PRIOR PRECEDENTS, HOLDS THAT IJ’S FINDINGS AS TO FUTURE OCCURENCES ARE FINDINGS OF FACT AND THUS SUBJECT TO A “CLEARLY ERRONEOUS” STANDARD OF REVIEW.
On May 26, 2015, the Board of Immigration Appeals (BIA), in reviewing an application for political asylum denied by the Immigration Judge (IJ), found that the IJ’s factual findings were not clearly erroneous and, as a result, the determination was upheld. In examining the standard of review for predictive findings of fact regarding the possibility of future events, the BIA noted it had already spoken to the matter in two precedent decisions, Matter of A-S-B-, 24 I & N Dec. 493 (BIA 2008) and Matter of V-K-, 24 I & N Dec. 500 (BIA 2008) – both of which held that findings as to future occurrences are not “fact-finding” and are therefore not reviewed for clear error. However, because the vast majority of Federal circuit courts of appeal have disagreed and held that such findings are indeed factual and thus must be reviewed under the clearly erroneous standard, the BIA overruled A-S-B- and V-K- as they relate to this issue and adopted the majority rule, while emphasizing that whether an asylum applicant has a reasonable fear of persecution based on events the IJ found may occur upon return to the country of removal is a legal determination subject to de novo review. Matter of Z-Z-O-, 26 I & N Dec. 586 (BIA 2015).
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