STANDARDS OF REVIEW FOR PETITIONS FOR REVIEW

The proper standard of review in immigration proceedings depends on the nature of the decision being reviewed. Your attorney, after reviewing the BIA or Agency decision must make a determination regarding the standard of review applicable to the case. There are several standards of review applicable to Petitions for Review:

1. De Novo Review

• a. Chevron Deference

2. Substantial Evidence Review

3. Abuse of Discretion Review

• a. Failure to Provide Reasoned Explanation
• b. Failure to Consider Arguments or Evidence
• c. Boilerplate Decisions

Questions of law are reviewed de novo. De novo review occurs when a court decides an issue without regard or deference to a previous courts decision. This means that the Appeals Court is called upon to review the case anew. In this case, the Appeals Court must decide whether the BIA has applied the correct standard of review. This is a question of law that is reviewed de novo. The Appeals Court reviews de novo the BIA’s determination of questions of law, except to the extent that deference is owed to its interpretation of the governing statutes and regulations. Whether particular acts constitute persecution for asylum purposes is a legal question reviewed de novo. There are many potential legal questions presented in any particular case and the appellate attorney must review the whole case and identify them.

Although the BIA’s interpretation of immigration laws is entitled to deference, the court is not obligated to accept an interpretation clearly contrary to the plain and sensible meaning of the statute. The BIA’s interpretation of an immigration statute is entitled to deference where it is based on a permissible construction of the statute. Additionally, the court “will not defer to BIA decisions that conflict with circuit precedent.

The court only owes the BIA’s interpretation Chevron deference, when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency nterpretation claiming deference was promulgated in the exercise of that authority.

The court will not defer to the BIA’s interpretation of statutes that it does not administer. See Rodriguez-Castellon v. Holder, 733 F.3d 847, 852 (9th Cir. 2013) (explaining the court does “not defer to the BIA’s interpretation of state or federal criminal statutes, because the BIA does not administer such statutes or have any special expertise regarding their meaning.”). “Deference is not due the agency in

construing state law.” Tijani v. Holder, 628 F.3d 1071, 1079 (9th Cir. 2010).

A mixed question of law and fact is one that has both factual and legal elements. Mixed questions of law and fact are also reviewed de novo.

Agency’s factual findings are reviewed under the substantial evidence standard. Substantial evidence means more than a mere scintilla but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The standard, however, is “extremely deferential” and a reviewing court must uphold the agency’s findings “unless the evidence presented would compel a reasonable factfinder to reach a contrary result. The substantial evidence standard requires the appellate court to review the administrative record as a whole, weighing both the evidence that supports the agency’s determination as well as the evidence that detracts from it.

The question for the court is whether the agency decision was supported by substantial evidence.

An appeals court will only overturn a conclusion under the reasonableness standard if the appeals court finds that no “reasonable” trier of fact could have made the conclusion based on the evidence it saw. Again, because the appeals judges were not there to see the initial presentation of facts, it’s a high bar

to overturn an agency’s factual conclusion.

The Court may review an immigration proceeding for an abuse of discretion, under which it will determine only whether the BIA exercised its discretion arbitrarily or capriciously. The BIA abuses its discretion when it misapplies the law in reaching its decision, or when it fails to follow its own precedents without providing a reasoned explanation for doing so. The appellant bears a heavy burden in proving arbitrariness or capriciousness. This is why your choice of attorney for your appellate proceeding is crucial.