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Would You Be A Reasonable Factfinder?

by Joseph P. Whalen

In my routine perusal of the latest cases, big and small, from around the country, I ran upon yet another mention of an all too common theme, which inspired this essay. In the plethora of Petitions For Review challenging denials of asylum and various form of relief from removal, it seems that "Counsel" or the Pro Se petitioners are always crying foul. While usually couched as an argument that the "incorrect legal standard was applied", or that there was a "violation of due process", the vast majority are just hoping against hope to actually run across a Court that will label the IJ or BIA panel as an "unreasonable factfinder". That outcome is extremely rare to say the least. Sure, we see an occasional significant interpretation or reinterpretation of the law, but the vast majority of remands to the BIA tend to be due to highly technical and sometimes convoluted procedural errors, which are merely remanded for the required correction but often still end in a denial of relief to the alien petitioner.

As most folks who are experienced in this realm know, adjudicators often deal with common themes and tend to have some "canned language" that is reused at least as a starting point for their decisions. Yes, I am talking about templates replete with blubs. There is nothing wrong with using templates as a starting point for constructing individualized decisions. Indeed, templates offer a sense of security as well as adding needed efficiency towards the processing a large volume of like cases as swiftly as possible. With that in mind, here is a very nice blurb!

Martin Gutierrez Borrovic v. Atty Gen USA, No. 10-1305 (3rd Cir, 06/05/12) includes the following:

".... We will not disturb the factual findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Immigration and Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks and citation omitted). As the Supreme Court instructed in Elias-Zacarias, the determination by the agency "can be reversed only if the evidence presented . . . was such that a reasonable factfinder would have to conclude" otherwise. Id." at p. 3

Above found at:
Using that blurb as a source, I then turned to that Supreme Court case for greater detail and to brush up on the historical development of the theme. Without further ado, here is the holding (as stated in the syllabus) on this point.

Immigration and Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478 (1992):

"Held: A guerrilla organization's attempt to coerce a person into performing military service does not necessarily constitute "persecution on account of . . . political opinion" under 101(a)(42) of the Immigration and Nationality Act, 8 U. S. C. 1101(a)(42). Even one who supports the political aims of a guerrilla movement might resist military combat and thus become the object of such coercion. Moreover, persecution on account of political opinion is not established by the fact that the coercing guerrillas had "political" motives. In order to satisfy 101(a)(42), the persecution must be on account of the victim's political opinion, not the persecutor's. Since respondent did not produce evidence so compelling that no reasonable factfinder could fail to find the requisite fear of persecution on account of political opinion, the [Ninth Circuit] Court of Appeals had no proper basis to set aside the BIA's determination. See 8 U. S. C. 1105a(a)(4); NLRB v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300. Pp. 481-484.

921 F. 2d 844, reversed." From Syllabus.

Above found at:

Naturally, the Supremes also cited to another case, so, I felt compelled to look at that one also. Here goes.

NLRB v. Columbian Enameling & Stamping Co., 306 U. S. 292 59 S.Ct. 501 83 L.Ed. 660 (Feb. 27, 1939)

"Section 10(e) of the Act provides: '* * * The findings of the Board as to the facts, if supported by evidence, shall be conclusive'. But as has often been pointed out, this, as in the case of other findings by administrative bodies, means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred. Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142, 57 S.Ct. 648, 81 L.Ed. 965; Consolidated Edison Co. of New York v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126; Appalachian Electric Power Co. v. National Labor Relations Board, 4 Cir., 93 F.2d 985, 989; National Labor Relations Board v. Thompson Products Inc., 6 Cir., 97 F.2d 13; Ballston-Stillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F.2d 758, 764. Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. 'It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,' Consolidated Edison Co. of New York v. National Labor Relations Board, supra, 59 S.Ct. 217, and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. See Baltimore & O.R.R. Co. v. Groeger, 266 U.S. 521, 524, 45 S.Ct. 169, 170, 69 L.Ed. 419; Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 233, 74 L.Ed. 720; Appalachian Electric Power Co. v. National Labor Relations Board, supra, page 989 of 93 F.2d.

Judged by these tests or any of them we cannot say that there was substantial evidence ....." at 14-15.

Above found at:

In Elias-Zacharias the Supreme Court also specifically cited to 8 U. S. C. 1105a(a)(4) (presumably the 1992 version or earlier). The statute has been amend since then and now the corresponding sentiment if not exact same language is found in 8 U.S.C. 1252 also shown below. Further along in Elias-Zacharias the Justices included the following on page 481:

"..... The BIA's determination that Elias-Zacarias was not eligible for asylum must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U. S. C. 1105a(a)(4)."

The oldest version of the cited statue that I could lay my hands on was 1994, which reads:

1105a. Judicial review of orders of deportation and exclusion

(a) Exclusiveness of procedure

The procedure prescribed by, and all the provisions of chapter 158 of title 28, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation, heretofore or hereafter made against aliens within the United States pursuant to administrative proceedings under section 1252(b) of this title or pursuant to section 1252a of this title or comparable provisions of any prior Act, except that-

* * * * *

(4) Determination upon administrative record

except as provided in clause (B) of paragraph (5) of this subsection, the petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive;

8 USC 1252. Judicial review of orders of removal (2011)

(a) Applicable provisions

(1) General orders of removal Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of title 28, except as provided in subsection (b) of this section and except that the court may not order the taking of additional evidence under section 2347(c) of such title.

* * * * *

(b) Requirements for review of orders of removal With respect to review of an order of removal under subsection (a)(1) of this section, the following requirements apply:

* * * * *

(4) Scope and standard for review Except as provided in paragraph (5)(B)-

(A) the court of appeals shall decide the petition only on the administrative record on which the order of removal is based,

(B) the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,

(C) a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and

(D) the Attorney General's discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion.

No court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence, as described in section 1158(b)(1)(B), 1229a(c)(4)(B), or 1231(b)(3)(C) of this title, unless the court finds, pursuant to subsection (b)(4)(B) of this section, that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable.

* * * * *

From the foregoing, it seems clear that the findings of fact determined below are given a huge amount of weight and are heavily shielded from review. There must be gross prejudicial error and blatant injustice clearly evident in the record of proceeding for the decision below to be overturned as to any finding of fact. Even if a particular finding is questionable, in the opinion of the reviewer, if it is merely a "difference of opinion" then that is insufficient to overrule it. The findings below must be upheld if supported by substantial evidence from which the adjudicator's conclusion may have been reasonably inferred. I ask both the adjudicators in government during evaluation of a case as well as immigration practitioners during preparation and presentation of a case: "Are YOU a Reasonable Factfinder?" That's my two-cents, for now.

About The Author

Joseph P. Whalen is not an attorney. He is a former government employee who is familiar with the INA. His education is in Anthroplogy with a concentration in Archaeology and has both a BA (from SUNY Buffalo) and an MA (from San Francisco State University) in Anthroplogogy. He previously worked as an Archaeologist for the U.S. Forest Service before becoming an Adjudicator with INS which became USCIS.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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