Immigration Case Appeals

The Board of Immigration Appeals ("the board" or the "BIA") reviews fact determinations by Immigration Judge's under a "clearly erroneous" standard, while questions of law are reviewed pursuant to a de novo standard. 8 C.F.R. §1003.1(d)(3)(i),(ii).

In situations where the IJ factual determinations are found to be clearly erroneous and where there is the need to reverse the decision, 8 CFR 1003.1(e)(6)(v) states that a case may be referred to a three-member panel. Review by a three member panel is also appropriate under 8 CFR 1003.1(e)(6)(iii) because the IJ's decision is not in conformity with existing Board precedent, precedent of the Third Circuit Court of Appeals, and other relevant law. In the instant case, Respondents argues that review by a three-member panel is appropriate because of the clearly erroneous factual determinations made by the IJ.
Even if single Board member review is found to be appropriate, an affirmance without opinion pursuant to 8 CFR 1003.1(e)(4) is not appropriate in this matter, because the Immigration Judge's errors were neither harmless nor immaterial. The single Board member should reverse the decision of the IJ as plainly inconsistent with Board and judicial precedent, remand to the IJ, or refer the case for decision by a three-member panel. 8 CFR 1003.1(e)(5).