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Rodriguez v. Holder

Under Title 8 of the Code of Federal Regulations � 1003.1(d)(3)(I), the Board of Immigration Appeals cannot engage in de novo review of findings of fact determined by an immigration judge. Instead, the BIA reviews those facts, including credibility determinations, only to determine whether they are clearly erroneous. Here, the BIA has obviously engaged in a de novo review of the IJ's findings of fact and credibility determinations. 5th U.S. Circuit Court of Appeals, No. 08-60585, 10-09-2009

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Published opinion

Before DAVIS, OWEN, and HAYNES, Circuit Judges.

Esperanza Alvarado de Rodriguez (“Alvarado”) appeals the Board of Immigration Appeals’ (“BIA”) decision, which overturned an Immigration Judge’s order granting her a good-faith hardship waiver of the joint filing requirement of section 216(c)(4)(A) of the Immigration and Nationality Act (“INA”). Such a hardship waiver was required to remove the conditional nature of Alvarado’s status, and the BIA’s denial of the waiver meant she would be removed to Mexico. In her petition for review, Alvarado claims that (1) this Court has jurisdiction to consider her appeal; (2) the BIA incorrectly reviewed the Immigration Judge’s findings of fact de novo; (3) the BIA’s consideration of a government-sponsored affidavit was improper; and (4) the BIA’s eventual holding — that the marriage was not entered into in good faith — was erroneous. Because the BIA applied the incorrect legal standard to conclude that the marriage was not entered into in good faith, we REVERSE the order of the BIA and REMAND for further proceedings not inconsistent with this opinion.*fn1

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