Cite as 24 I&N Dec. 500 (BIA 2008) Interim Decision #3609
1 We note that this case involved additional proceedings relating to questions of the
respondent’s removability that are not relevant to the issues discussed in this decision.
Matter of V-K-, Respondent
Decided May 8, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
The Board of Immigration Appeals reviews de novo an Immigration Judge’s prediction or
finding regarding the likelihood that an alien will be tortured, because it relates to whether
the ultimate statutory requirement for establishing eligibility for relief from removal has been
met and is therefore a mixed question of law and fact, or a question of judgment.
FOR RESPONDENT: Thomas E. Moseley, Esquire, Newark, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Bruce B. Dizengoff, Assistant
BEFORE: Board Panel: FILPPU, COLE, and PAULEY, Board Members.
PAULEY, Board Member:
In a decision dated April 27, 2004, an Immigration Judge granted the
respondent’s request for deferral of removal under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N.
GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into
force June 26, 1987; for the United States Apr. 18, 1988) (“Convention
Against Torture”). The Department of Homeland Security (“DHS”) appealed
the decision of the Immigration Judge.1
On August 4, 2006, we sustained the
DHS’s appeal and ordered the respondent removed from the United States to
Ukraine. The respondent appealed our decision to the United States Court of
Appeals for the Third Circuit, in whose jurisdiction this case arises.
On September 10, 2007, the Third Circuit granted the Government’s
unopposed motion to remand proceedings to the Board. In its remand, the
Third Circuit instructed us to specify whether we had the authority under
8 C.F.R. § 1003.1(d)(3) to reverse the Immigration Judge’s determination
that “‘there [was] a preponderance of evidence in the record leading to a
justification for a clear probability finding that this particular respondent, asCite as 24 I&N Dec. 500 (BIA 2008) Interim Decision #3609
a Jewish refugee from the former Soviet Union generally, and the Ukraine
specifically, is likely to be targeted at least in part, by both governmental and
non-governmental entities within the Ukraine should he be removed to
that country . . . [and that such mistreatment will rise to the level of torture].’”
In addition, the court asked us to specify whether we had authority to
affirmatively find that the petitioner had failed to show a clear probability that
he would be tortured if he returned to Ukraine or that the torture would occur
by or with the acquiescence of government officials.
In his decision, the Immigration Judge credited the testimony of the
respondent’s expert witness that the respondent “is likely to need to come into
contact with governmental entities and is likely to be a target for extortion and
mistreatment that is likely to rise to the level of torture.” We now clarify that
while we reviewed the Immigration Judge’s factual rulings for clear error, we
do not consider a prediction of the probability of future torture to be a ruling
of “fact.” Although predictions of future events may in part be derived from
“facts,” they are not the sort of “[f]acts determined by the Immigration Judge”
that can only be reviewed for clear error. 8 C.F.R. § 1003.1(d)(3)(i) (2008).
According to the regulations prescribing the Board’s scope of review, facts
found by an Immigration Judge can be reviewed only to determine if they are
“clearly erroneous,” but the Board “may review questions of law, discretion,
and judgment and all other issues in appeals from decisions of immigration
judges de novo.” 8 C.F.R. §§ 1003.1(d)(3)(i)-(ii). Furthermore, the regulatory
history surrounding the regulations, which were promulgated in 2002,
indicates that there was no intent to apply the restrictive “clearly erroneous”
test to mixed questions of fact and law where the so-called “fact” consists of
a finding as to the degree of possibility of a result occurring that is necessary
to sustain a statutory basis for eligibility (e.g., the extent of hardship or the
chance of persecution or torture if the alien is removed). Board of
Immigration Appeals: Procedural Reforms To Improve Case Management,
67 Fed. Reg. 54,878 (Aug. 26, 2002). The comments accompanying the
regulations explain, for example, that “[t]he ‘clearly erroneous’ standard
does not apply to determinations of matters of law, nor to the application of
legal standards, in the exercise of judgment or discretion. This includes
judgments as to whether the facts established by a particular alien amount to
‘past persecution’ or a ‘well founded fear of persecution.’” Id. at 54,890
(Supplementary Information). Accordingly, we conclude that an Immigration
Judge’s prediction or finding regarding the likelihood that an alien will be
tortured may be reviewed de novo because, like a conclusion relating to
whether a statutorily prescribed chance of persecution or level of hardshipCite as 24 I&N Dec. 500 (BIA 2008) Interim Decision #3609
2 The fact that the Immigration Judge’s prediction derived from his acceptance of an expert
witness’s testimony does not affect its nature as a prediction relating to whether an ultimate
legal standard, here the likelihood of torture, has been met. Indeed, our conclusion that a de
novo standard applies here is supported by the nature of expert witness opinion evidence
itself. As reflected in Rule 702 of the Federal Rules of Evidence, such expert opinion
testimony, while undoubtedly a form of evidence, does not purport to be evidence as to
“fact” but rather is admissible only if “it will assist the trier of fact to understand the
evidence or to determine a fact in issue.”
exists, it relates to whether the ultimate statutory requirement for establishing
eligibility for relief was met and is therefore a mixed question of fact and law,
or a question of “judgment.” 8 C.F.R. § 1003.1(d)(3)(ii).2
In reviewing the record, we disagreed with the Immigration Judge’s mixed
factual and legal determination that a preponderance of the evidence showed
that it was more likely than not that the respondent would be tortured in the
Ukraine, as that term has been interpreted by Board and Third Circuit case law.
In so doing, we did not find any facts ourselves but only assessed the facts as
found by the Immigration Judge and established by the evidence entered into
the record, determining that they were insufficient to meet the respondent’s
burden of proof for protection under the Convention Against Torture. We
believe that we acted in accordance with the relevant regulations and our role
as an appellate body. 8 C.F.R. § 1003.1(d)(3). Indeed, it would appear
essential to the performance of our appellate function as contemplated by the
Attorney General that we possess the authority to review de novo findings
deemed by an Immigration Judge to satisfy an ultimate statutory standard.
Accordingly, upon clarification of our prior decision, we will again sustain
the DHS’s appeal, dismiss the respondent’s appeal, and order the respondent
removed from the United States.
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The respondent’s appeal is dismissed.
FURTHER ORDER: The respondent is ordered removed from the
United States to Ukraine.
Cite as 24 I&N Dec. 500 (BIA 2008) Interim Decision #3609