Administrative – Immigration – Deferral of Removal Petition – Fear of Torture – Standard of Review

Turkson v. Holder (Lawyers Weekly No. 12-01-0118, 14 pp.) (Gibney, J.) No. 10-1984, Jan. 26, 2012; On Petition for Review. 4th Cir.

Holding: In deciding this petition for deferral of removal based on petitioner’s fear of torture if he is returned to his native Ghana, the 4th Circuit says the Board of Immigration should have applied the “clearly erroneous” standard instead of the de novo review standard, and it grants the petition, vacates the BIA’s decision in favor of the Department of Homeland Security and remands the case for further proceedings.

Petitioner James Turkson was subjected to violence in Ghana while distributing pamphlets for the political party his father led. Turkson came to the U.S. on a false passport in 1995. He later married a U.S. citizen and became a permanent legal resident. Turkson committed a number of crimes in the U.S., including a recent conviction for marijuana possession, and DHS initiated removal proceedings. Turkson applied for asylum under the UN Convention Against Torture. The Immigration Judge found that political violence continues to this day in Ghana, and that it was more likely than not that Turkson would again face torture if he returned to Ghana.

The IJ ordered deferral of removal. The DHS appealed, and under a de novo standard, the BIA vacated the IJ ruling, and Turkson was removed to Ghana.

The BIA applied the wrong standard of review to the IJ’s factual findings. In doing so, the BIA failed to follow its own regulations as well as the case law interpreting those regulations. The BIA is the highest administrative tribunal on immigration and nationality matters. Before 2002, the BIA reviewed all aspects of an IJ’s decision de novo. In 2002, however, the applicable regulations were amended, which changed the scope of review as to the factual findings of an IJ. Now, facts determined by the IJ, including findings as to credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.

In Turkson’s case, the IJ made both factual determinations and legal judgments. The BIA failed to follow the scope of review as established by 8 C.F.R. § 1003.1(d)(1) and subjected the IJ’s entire decision to de novo review and redetermined the facts found by the IJ.

We hold a decision regarding a petitioner’s likely future mistreatment is a factual determination, subject to BIA review under the clearly erroneous standard. The BIA’s decision to subject the IJ’s factual findings to de novo review is contrary to the plain language of the governing regulation and is therefore not controlling.

Petition for review granted, vacated and remanded.