THE ERROR OF THEIR WAYS
The Standards of Review Used by the Board of Immigration Appeals
By Ben Winograd1
No two cases before the Board of Immigration Appeals are exactly alike. But there is one
issue that attorneys must always confront when challenging a decision of an immigration judge:
the standard of review the Board will apply. The standard of review is much more than a
“technicality.” Just as the burden of proof can determine which party will prevail in court, the
standard of review can determine the outcome of an appeal. As importantly, application of the
wrong standard of review can itself provide grounds for an appeal to a federal circuit court. By
understanding when a specific standard of review applies—and framing issues to obtain a more
favorable standard of review—attorneys can increase the odds of prevailing at each level.
I.
BACKGROUND
A. The 2002 Regulations
The“standard of review”refers to the level of deference a higher courtaffords to
thedeterminations of a lower court.When applying a deferential standard of review, higher
courtspresume the lower court’s determinationsare correct and will overrule the lower court only
if it is readily apparent that an error took place. When applying a non-deferential standard of
review, higher courtsapproach the question as if they were considering it in the first instance.
Under regulations promulgated as part of the Justice Department’s streamlining efforts in
2002,2 the Board employs two standards of review for all questions arising in appeals of
decisions of immigration judges.3The Board reviews factual and credibility determinations only
to determine whether the immigration judge’s finding was clearly erroneous.4The Board
reviews all other issues—including questions of law, discretion, and judgment—de novo.5
According to the Federal Register notice that accompanied the 2002 regulations, the Justice
Department believed that subjecting factual and credibility determinations to clear error review,
and all other issues to de novo review, reflected the respective responsibilities of immigration
judges and the Board. For example, the Justice Department noted that immigration judges are
empowered by statute to receive evidence and question witnesses, and are in a better position to
make credibility determinations because they can observe the demeanor of those who testify
before them.6Thus, if a question arises as to whether a particular determination is factual in
nature, practitioners should ask whether an immigration judge would be better positioned to
resolve the question than a member of the Board.
1
Ben Winograd is an attorney at the Immigration & Refugee Appellate Center, LLC, in Alexandria, Virginia.
Board of Immigration Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg. 54878 (Aug. 26,
2002).
3
In appeals of decisions of U.S. Citizenship and Immigration Services (USCIS), the Board reviews all questions de
novo.
4
8 C.F.R. 1003.1(d)(3)(i).
5
8 C.F.R. 1003.1(d)(3)(ii).
6
67 Fed. Reg. at 54889 .
2
1
B. The Difference Between Clear Error and De Novo Review
The difference between clear error and de novo review could not be greater, as they
represent the least and most deferential standards of review that appellate courts apply.
Under clear error review, an immigration judge’s determination “may not beoverturned
simply because the Boardwould have weighed the evidencedifferently or decided the
factsdifferently had it been the factfinder.”7Rather, a determinationis only “clearly erroneous” if,
“although there is evidence tosupport it, the reviewing Board memberor panel is left with the
definite andfirm conviction that a mistake has beencommitted.”8See also BLACK’S LAW
DICTIONARY622 (9th ed. 2009) (defining “clear error” as a “trial judge’s decision or action that
appears to a reviewing court to have been unquestionably erroneous”).9
By contrast, higher courts afford no deference when reviewing a matter de novo.(De novo is
Latin for “anew.”) Instead, they approach the question as if they were considering it in the first
instance. Thus, when considering any issue other than a factual or credibility determination—
including question of law, judgment, or discretion—the Board’s ruling may be based purely on
what the panel members believe to be the correct outcome. Although federal courts may afford
deference to the Board’s construction of ambiguous statutes under Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Board does not afford deference to
immigration judges’ interpretation of such (or any) statutes.
C. Distinguishing Factual Determinations from Other Issues
The difference between clear error and de novo review is rather simple. The more difficult
task is distinguishing between factual determinations, which are reviewed for clear error, and
questions of law and discretion, which are reviewed de novo.
1.
Questions of Fact
A question of fact is an “issue that has not been predetermined and authoritatively answered
by the law,” or one “that does not involve what the law is on a given point.”10 In criminal and
civil trials, questions of fact are typically resolved by a jury rather than a judge. According to the
Board, examples of questions of fact include:
7
Matter of R-S-H-, 23 I&N Dec. 629, 637 (BIA 2003) (citing 67 Fed. Reg. at 54889) (citing Anderson v. City of
Bessemer, 470 U.S. 564, 573 (1985)).
8
Id. (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
9
In addition to creating a bifurcated standard of review, the 2002 streamlining regulations also limited the Board’s
ability to engage in fact-finding in deciding appeals. If the Board finds an immigration judge’s factual
determination(s) to be clearly erroneous, a question may arise as to whether the Board should remand to the
immigration judge for further factual findings. Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002) (“If incomplete
findings of fact are entered and the Immigration Judge’s decision ultimately cannot be affirmed on the basis that he
or she decided the case, a remand of the case for further fact-finding may be unavoidable.”).
10
Black’s Law Dictionary 1366 (9th ed. 2009).
2



Whether a respondent was “waved through” a port of entry by an immigration officer.11
Why a persecutor targeted an asylum applicant (i.e. the persecutor’s motive).12
Whether the respondent knowingly and deliberately fabricated elements of an asylum
claim.13
While what happened in the past is indisputably a question of fact, the Board has held that
predictions of future occurrences are not factual determinations because “it is impossible to
declare as ‘fact’ things thathave not yet occurred.”14 As is discussed later in the article, however,
numerous circuit courts, including the Fourth Circuit, have disagreed with the Board’s position.
2.
Questions of Law
A question of law is an issue “that the law itself has authoritatively answered, so that the
court may not answer it as a matter of discretion.”15 In criminal and civil trials, questions of law
are typically resolved by a judge rather than a jury. A “pure” question of law is one whose
resolution does not depend in any part on the facts of the case. Examples of “pure” questions of
law include:



Whether the aggravated felony bar in INA 212(h) applies to all lawful permanent
residents or only those who were admitted in LPR status at a port of entry.16
Whether a group is a “particular social group” for purposes of asylum and withholding.17
Whether an immigration judge may consider an application for relief abandoned when
supporting documents are not timely submitted in support of the application.18
3.
Mixed Questions of Fact and Law (or “Questions of Judgment”):
A mixed question of fact and law is an “issue that is neither a pure question of fact nor a
pure question of law.”19 Rather, it is a question that involves the application of a legal standard to
a set of facts. The Board sometimes refers to mixed questions of law and fact as a “question of
judgment.”20Examples of mixed questions of fact and law include:

Whether the facts support a determination that mistreatment rose to the level of
“persecution,”21or that a fear of future persecution is “well-founded.”22
11
Matter of Quilantan, 25 I&N Dec. 285, 293 (BIA 2010).
Matter of N-M-, 25 I&N Dec. 526, 532 (BIA 2011) (“A persecutor’s actual motive is a matter of fact to be
determined by the Immigration Judge and reviewed by us for clear error.”).
13
Matter of Y-L-, 24 I&N Dec. 151, 159 (BIA 2007). By contrast, whether the fabrication was “material” is a mixed
question of fact and law. Id.
14
Matter of A-S-B-, 24 I&N Dec. 493, 498 (BIA 2008).
15
Black’s Law Dictionary 1366 (9th ed. 2009).
16
Matter of Koljenovic, 25 I&N Dec. 219, 220 n.1 (BIA 2010).
17
Matter of A-R-G-C-, 26 I&N Dec. 388, 390 (BIA 2014).
18
Matter of Interiano-Rosa, 25 I&N Dec. 264, 264 (BIA 2010).
19
Black’s Law Dictionary 1094 (9th ed. 2009).
20
Matter of V-K-, 24 I&N Dec. 500, 502 (BIA 2008).
21
Matter of A-S-B-, 24 I&N Dec. 493, 497 (BIA 2008).
22
Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 212 (BIA 2010).
12
3


4.
Whether the facts support a determination that the respondent’s qualifying relative(s)
would suffer “exceptional and extremely unusual hardship.”23
Whether the facts support a determination that an asylum applicant was “firmly
resettled.”24
Questions of Discretion:
A question of discretion involves the “exercise of judgment by a judge or court based on
what is fair under the circumstances,” or a “court’s power to act or not act when a litigant is not
entitled to demand the act as a matter of right.”25Examples of discretionary determinations
include:



Whether a respondent merits a grant of adjustment of status,26 cancellation of removal,27
or voluntary departure.28
Whether to grant a motion to change venue.29
Whether to grant a motion to continue.30
As all of the above examples demonstrate, many (if not most) issues that arise in the course
of removal proceedings involve both factual and legal determinations. When crafting their
appeals, practitioners should thus consider what standard of review to apply for not only the
major issues but also for the sub-issues involved in the case.
II. POTENTIAL STANDARD OF REVIEW PROBLEMS
A. Likelihood of a Future Occurrence—A Question of Fact, Law, or Both?
One issue that has divided the Board and numerous federal circuit courtsis whether the
likelihood that a future event will transpire is a factual determination reviewed for clear error, or
question of judgment (i.e. mixed question of law and fact) reviewed de novo. The Board has held
that predictions of future events require de novoreview for the (perhaps too) simple reason that
“it is impossible to declare as ‘fact’ things thathave not yet occurred.”31Under this rationale, the
Board has held that whether an asylum applicant has a well-founded fear of persecution, and the
likelihood that a respondent would be tortured, are questions of judgment reviewed de novo.32
23
Matter of V-K-, 24 I&N Dec. 500, 501-02 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493, 497 (BIA 2008).
Matter of A-G-G-, 25 I&N Dec. 486, 488 (BIA 2011).
25
Black’s Law Dictionary 534 (9th ed. 2009).
26
Matter of Arai, 13 I&N Dec. 494, 495-96 (BIA 1970).
27
Matter of C-V-T-, 22 I&N Dec. 7, 8-9 (BIA 1999).
28
Matter of Pinzon, 26 I&N Dec. 189, 195 n.2 (BIA 2013).
29
Matter of Rivera, 19 I&N Dec. 688, 690 (BIA 1988).
30
Matter of Rajah, 25 I&N Dec. 127, 129-130 (BIA 2009).
31
Matter of A-S-B-, 24 I&N Dec. 493, 498 (BIA 2008).
32
Id.; Matter of V-K-, 24 I&N Dec. 500, 501 (BIA 2008).See alsoMatter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 212
(BIA 2010).
24
4
Numerous circuit courts, including the Fourth Circuit, have criticized this approachfor
improperly collapsing two separate inquiriesinto one. In the view of these circuits, the first
inquiry—what would happen to the respondent in the event of removal—is a factual
determination reviewed for clear error, while the second inquiry—whether what would happen
entitles the respondent to relief—is a legal determination reviewed de novo. As the Third Circuit
aptly put it, “[g]lueing the two questions together … does not entitle the BIA to review the first
question, the factual one, de novo.”33 Instead, the Board “must break down the inquiry into its
parts and apply the correct standard of review to the respective components.”34
The Fourth Circuit’s decision in Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012),
demonstrates how this bifurcated inquiry should apply in practice. The petitioner in Turkson was
granted deferral of removal under the Convention Against Torture after an immigration judge
determined that authorities would imprison and brutally beat him in his native country. The
government appealed, and the Board reversed after applying de novo review.The Fourth Circuit
granted the petition for review because the Board improperly conflated two separate issues: what
would happen to the petitioner if he was removed—a question of fact reviewed for clear error—
and whether his mistreatment satisfied the definition of “torture”—a question of law reviewed de
novo. The Fourth Circuit remanded the record to permit the Board review the immigration
judge’s factual findings for clear error.
In this author’s view, the Board’s belief that the likelihood of future events cannot be
regarded as factual findings is mistaken. Even though a future event has yet to transpire, the
probability that it will occur involves the weighing of evidence, not legal principles or equitable
considerations. At the same time, whether a set of facts found by an immigration judge (and
deemed not to be clearly erroneous by the Board) entitle the respondent to relief requires the
application of a legal standard. This much is clear from an example provided in the Federal
Register accompanying the 2002 regulations. The Justice Department explained that when the
Board reviews appeals involving applications for non-LPR cancellation of removal:
[T]hose facts that a respondent claims make up “exceptional and extremely
unusual hardship” to a respondent’sputative qualifying relative … will
bereviewed by the Board only todetermine if the immigration
judge’sdetermination was clearly erroneous.Whether those facts, as determined
bythe immigration judge and found not tobe clearly erroneous, amount to
“exceptional and extremely unusualhardship” under the Act may bereviewed by
the Board de novo.35
As this example makes clear, the instances of hardship that would befall a respondent’s
qualifying relative(s) is a factual determination reviewed for clear error. Because such hardship
would (by definition) occur in the future, it follows that the Justice Department intended the
likelihood of future events to be treated as factual determinations. However, whether those
facts—as determined by the immigration judge—amount to “exceptional and extremely unusual
hardship” is a question of judgment reviewed de novo.
Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010).
Id.
35
67 Fed.Reg. at 54889.
33
34
5
B. Credibility Determinations
As noted above, credibility determinations made by an immigration judgeare only reviewed
for clear error.36Overcoming an adverse credibility determination on appeal can thus be quite
difficult. However, simply because the ultimate credibility determination is reviewed for clear
error does not mean that all issues relating to such determinations should necessarilybe reviewed
for clear error. To the contrary, practitioners can raise legalchallengesto both the adequacy of an
adverse credibility determination as well as the underlying findings on which it was based.
For example, adverse credibility determinations must be supported by “specific, cogent”
reasons, as distinct from “speculation, conjecture, or an otherwise unsupported personal
opinion.”37For obvious reasons, the Board need not defer to an immigration judge’s belief as to
whether the reasons given in support of an adverse credibility determination are sufficiently
specific and cogent, for to do so would effectively preclude review of such determinations
altogether. Likewise, the INA lists numerous factors that immigration judges may consider in
making credibility determinations, such as the inherent plausibility of the account and the
consistency between the respondent’s written and oral testimony.38Practitioners can argue that
these underlying determinations should be subject to de novo review because immigration judges
are not better positioned than Board members to make such findings. After all, Board members
are equally capable of determining whether a respondent’s account is inherently plausible, or
whether written and oral testimony is consistent.
C. Failure to Provide Corroborating Evidence
Closely related to credibility determinations is whether a respondent should have provided
corroborating evidence in support of an application for relief. Under the REAL ID Act, when an
immigration judge determines that a respondent should provide corroborating evidence, such
evidence must be provided unless the respondent does not have the evidence and cannot
reasonably obtain the evidence.39
Although the Board has not explicitly addressed the issue, whether a respondentshould
provide corroborating evidence would appear to be a mixed question of law and fact (reviewed
de novo) because it requires consideration of a respondent’s existing testimony relative to the
burden of proof. By contrast, whether a respondent has corroborating evidence would appear to
be a factual determination that the Board would review for clear error, since it hinges merely on
whether the respondent has the evidence in his or her possession. Finally, whether the respondent
can reasonably obtain the obtain evidence would appear to involve two inquires: what steps
would be required to obtain the evidence (a factual determination reviewed for clear error), and
whether those steps would be reasonable (a legal determination reviewed de novo).
36
8 C.F.R. 1003.1(d)(i).
Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006).
38
INA 240(c)(4)(C).
39
INA 240(c)(4)(B).
37
6
D.
CrimmigrationIssues
Whether a criminal conviction makes a noncitizen subject to removal from the country (or
ineligible for relief from removal) is typically a question of law. For example, whether an
offense qualifies as a “crime involving moral turpitude” or as an aggravated felony “theft”
offense or “crime of violence,” are questions that the Board reviews de novo.40 In many cases,
however, criminal grounds of removability can require immigration judges to make factual
determinations that are reviewed only for clear error.
To begin with, whether a respondent was convicted under the particular statute alleged in the
Notice to Appear is a factual determination requiring a review of conviction records submitted
by the DHS.41 Grounds of removability subject to a “circumstance-specific” inquiry also require
factual determinations—such as whether a respondent possessed 30 grams or less or marijuana
for personal use,42 or whether the loss to the victim of fraud or deceit exceeded
$10,000.43Likewise, immigration judges must make factual determinations to determine whether
a respondent is an illicit trafficker in a controlled substance,44human trafficker,45 or money
launderer,46or in determining the underlying circumstances of an offense alleged to be a
“particularly serious crime.”47
Even application of the categorical approach—a quintessentially legal inquiry—can involve
factual determinations. If the statute is divisible, the immigration judge may review “Shepard
documents”48 to determine the precise offense to which the respondent pleaded guilty. If a
respondent contends that the statute of conviction is overbroad, immigration judges must also
determine whether a “realistic probability” exists that a state would prosecute conduct falling
outside the generic definition of a removable offense.49(One could argue, however, that “realistic
probability” determinations are legal in nature because they require a review of state case law
which immigration judges are no more qualified to conduct than members of the Board.).
Likewise, whether a state crime is an offense “relating to” a ground of removability is a question of law reviewed
de novo. Matter of Valenzuela Gallardo, 25 I&N Dec. 838, 838 (BIA 2012).
41
By contrast, whether a state court’s adjudication qualifies as a “conviction” under INA 101(a)(48)(A) is a question
of law meriting de novo review. Matter of Cabrera, 24 I&N Dec. 459, 461 (BIA 2008).
42
INA 237(a)(2)(B)(i); Matter of Dominquez-Rodriguez, 26 I&N Dec. 408, 413 n.9 (BIA 2014).
43
INA 101(a)(43)(M)(i); Nijhawan v. Holder, 557 U.S. 29, 34 (2009).
44
INA 212(a)(2)(C).
45
INA 212(a)(2)(H).
46
INA 212(a)(2)(I).
47
Matter of G-G-S-, 26 I. & N. Dec. 339, 342-43 (BIA 2014).
48
Shepard v. United States, 544 U.S. 13, 26 (2005) (permitting judges to consider “the terms of the charging
document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”).
49
Matter of Ferreira, 26 I&N Dec. 415, 419 (BIA 2014) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007)).
40
7
E.
Discretionary Determinations
Discretionary determinations also can present complicated issues involving the standard of
review.Although the Board may review the ultimate determination de novo, discretionary rulings
may hinge on underlying legal conclusions and factual determinations that must be reviewed
independently.50If an immigration judge’s discretionary determination was based on a flawed
legal conclusion or clearly erroneous factual determination, a remand may be required for further
consideration.
For example, imagine an immigration judge denies an application for LPR cancellation of
removalafter finding your client did not credibly testify regarding the circumstances that led to a
prior criminal conviction. The immigration judge’s determination was based on a discrepancy
between your client’s testimony and allegations in a police report, as well as purportedly
contradictory answers provided during direct examination by the client himself.
To challenge the finding that your client does not merit a favorable exercise of discretion,
you could raise both legal and factual arguments. If the allegations in the police report were
based on multiple levels of hearsay, you could argue that the report was not sufficiently reliable
under the Due Process Clause to be introduced as evidence. Likewise, if the immigration judge
simply misremembered your client’s testimony, you could argue that the adverse credibility
finding was clearly erroneous. If you prevailed on either argument, the Board would arguably
need to remand the case to allow the immigration judge to consider anew whether your client
merits a favorable exercise of discretion.51
III. RELATIONSHIP TO FEDERAL JUDICIAL REVIEW
A. Preserving Questions of Law
When filing an appeal at the Board, framing an issue as a “question of law” or a “question of
discretion” does not affect the standard of review; the Board reviews both types of
determinations de novo. By contrast, when filing a petition for review at a federal circuit court,
casting a determination as legal or discretionary makes a great difference. Unlike the Board,
which can consider virtually all issues on appeal,52 federal circuit courts are prohibited from
reviewing many discretionary determinations,53 as well as cases of noncitizens who are
removable for having committed certain criminal offenses.54 For clients who fall subject to these
Matter of Pinzon, 26 I. & N. Dec. 189, 190 (BIA 2013) (“The Immigration Judge’s factual findings regarding the
positive and negative factors in the respondent's case are not clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i)
(2013). However, upon our de novo review of these facts, we conclude that the adverse factors in this case outweigh
the respondent’s equities and that she therefore does not merit a favorable exercise of discretion. See 8 C.F.R. §
1003.1(d)(3)(ii).”).
51
Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002)
52
Federal regulations prohibit the Board from reviewing the length of a voluntary departure period, 8 C.F.R.
1003.1(b)(3), or an adverse credible fear determination made by an immigration judge. 8 C.F.R. 1003.42(f).
53
INA 242(a)(2)(B)(i)-(ii).
54
INA 242(a)(2)(D).
50
8
jurisdiction-stripping provisions, federal circuit courts are limited to considering constitutional
claims and questions of law.55
Thus, by raising and framing issues as questions of law on appeal to the Board, practitioners
may help preserve issues for further appeal over which federal circuit courts have jurisdiction. If
a practitioner could have raised—but failed to raise—such an issue before the Board, a federal
circuit court may decline to consider the argument because it was not “exhausted.”56
B. A Question of Law or Discretionary Determination?
Just as the Board and federal courts have explicitly disagreed as to whether the likelihood of
a future event is a question of “fact,” so have they implicitly disagreed as to whether certain
determinations are legal or discretionary in nature. Although federal courts are not bound by the
Board’s view on whether an issue is legal or discretionary, arguably the Board’s views are
entitled to some weight—particularly given that courts apply a strong presumption in favor of
judicial review of administrative action.57Listed below are examples of issues that the Board
deems to be questions of law but that federal courts have concluded are discretionary
determinations.
1.
Particularly Serious Crime
Immigration judges are prohibited from granting withholding of removal under the INA or
the Convention Against Torture to noncitizens who have been convicted of a “particularly
serious crime.”58An aggravated felony (or felonies) for which the noncitizen was sentenced to an
aggregate term of imprisonment of five years or more is considered to be a particularly serious
crime per se.59For all other offenses, immigration judges must consider nature of the conviction,
the type of sentence imposed, and the circumstances and underlying facts of the conviction.60
The Board has found that whether an offense qualifies as a “particularly serious crime” is a
question of law.61By contrast, numerous courts have held that “particularly serious crime”
determinations are discretionary in nature.62 Because the Board regards “particularly serious
crime” determinations as a question of law that merits de novo review, practitioners can argue
that federal appellate courts should as well.
2.
Exceptional and Extremely Unusual Hardship
55
INA 242(a)(2)(D).
INA 242(d)(1).
57
Obioha v. Gonzales, 431 F.3d 400, 405 (4th Cir. 2005).
58
INA 241(b)(3)(B)(ii); 8 C.F.R. 1208.16(d)(2).
59
INA 241(b)(3)(B).
60
Matter of G-G-S-, 26 I. & N. Dec. 339, 342-43 (BIA 2014).
61
Matter of R-A-M-, 25 I&N Dec. 657, 658 (BIA 2012) (“The DHS appealed, arguing that theImmigration Judge
erred in finding that the respondent’s conviction was notfor a particularly serious crime. We review this question of
law de novo.”).
62
See, e.g., Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012); Tian v. Holder, 576 F.3d 890, 897 (8th Cir. 2009);
Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006).
56
9
Another determination that is arguably legal in nature is whether a respondent’s removal
would cause “exceptional and extremely unusual hardship” to his or her qualifying relative(s).
To be sure, five circuits have considered whether they have jurisdiction to consider claims that a
respondent’s removal would cause “exceptional and extremely unusual hardship”—andeach has
concluded that it does not.63 The courts found that such hardship claims involve discretionary
determinations that are not subject to review under INA 242(a)(2)(B)(i), not questions of law that
can be reviewed under INA 242(a)(2)(D).
While the legal landscape may appear bleak, substantial arguments exist that federal courts
do, in fact, have authority to review “exceptional and extremely unusual hardship”
determinations. To begin with, all of the aforementioned circuit rulings were decided prior to the
issuance of numerous precedential Board decisions stating that “exceptional and extremely
unusual hardship” determinations are legal, not discretionary.64If the issue of whether hardship is
“exceptional and extremely unusual” is a question of law for purposes of the Board’s standard of
review, so should it be a question of law for purposes of review by federal court of appeal.
Indeed, subsequent to the Board’s decisions, numerous circuits, including the Fourth Circuit—in
which the question remains open—have acknowledged that the Board treats such determinations
as questions of law.65And although the Second Circuit has held that it lacks jurisdiction to review
such determinations, a subsequent panel—which included now Supreme Court Justice Sonia
Sotomayor—stated that if it was “operating on a clean slate, [it] would be inclined to hold that
the question of whether an alien has established ‘exceptional and extremely unusual hardship’ is
a determination that [courts] have jurisdiction to review.”66
CONCLUSION
As the above discussion may demonstrate, much confusion exists regarding when an issue
involves a question of fact that the Board may review for clear error. Practitioners should use this
ambiguity to their advantage. If an immigration judge ruled against your client, portraying the
determinations is legal or discretionary could lead to the use of de novo review. If an
immigration judge ruled for your client, portraying the findings as factual will reduce the odds
that the Board will overturn the decision. And if the immigration judge failed to explain whether
a key determination was factual or legal, such a failure may itself constitute grounds for a
remand.
63
De La Vega v. Gonzales, 436 F.3d 141, 145-46 (2d Cir. 2006); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir.
2004); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003); Romero-Torres v. Ashcroft, 327 F.3d 887,
888 (9th Cir. 2003); Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332-33 (11th Cir. 2003).
64
Matter of V-K-, 24 I&N Dec. 500, 501-02 (BIA 2008); Matter of A-S-B-, 24 I&N Dec. 493, 497 (BIA 2008).
65
Massis v. Mukasey, 549 F.3d 631, 636 n.6 (4th Cir. 2008) (“[A]pplication of the law to those facts—to determine,
for example, whether those facts amount to ‘exceptional and extremely unusual hardship’—may be reviewed de
novo.”); Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010) (“While looking at the hardship necessarily involves
ascertaining the future factual consequences that would result from removal of the alien, it is the degree of hardship
that constitutes a legal question, namely, whether it is ‘exceptional and extremely unusual.”).
66
Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009).
10