Immigration Case Appeals

The Board of Immigration Appeals ("the board" or the "BIA") reviews fact determinations by Immigration Judge's under a "clearly erroneous" standard, while questions of law are reviewed pursuant to a de novo standard. 8 C.F.R. §1003.1(d)(3)(i),(ii).

In situations where the IJ factual determinations are found to be clearly erroneous and where there is the need to reverse the decision, 8 CFR 1003.1(e)(6)(v) states that a case may be referred to a three-member panel. Review by a three member panel is also appropriate under 8 CFR 1003.1(e)(6)(iii) because the IJ's decision is not in conformity with existing Board precedent, precedent of the Third Circuit Court of Appeals, and other relevant law. In the instant case, Respondents argues that review by a three-member panel is appropriate because of the clearly erroneous factual determinations made by the IJ.
Even if single Board member review is found to be appropriate, an affirmance without opinion pursuant to 8 CFR 1003.1(e)(4) is not appropriate in this matter, because the Immigration Judge's errors were neither harmless nor immaterial. The single Board member should reverse the decision of the IJ as plainly inconsistent with Board and judicial precedent, remand to the IJ, or refer the case for decision by a three-member panel. 8 CFR 1003.1(e)(5).

The INA does not contain a statutory definition of the term "persecution." However, the Third Circuit has adopted the Board of Immigration Appeals' definition of persecution as acts of extreme behavior, including "threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom." Fatin v. INS, 12 F.3d. 1233, 1240 (3rd Cir. 1993). The Third Circuit has emphasized that it saw no intent of Congress to depart from an ordinary definition of "persecution." Id. Moreover, authoritative interpretations of the United Nations Convention and Protocol recognize that the concept of persecution refers to extreme conduct. Id. Threats of sexual assault, intrusion into the home, physical restraint, and threats of beatings constitute persecution. Alarcon Marcilla v. INS, 1998 U.S. App. Lexis 10758, (9th Cir. 1998).

In its interpretation of persecution, the Board of Immigration Appeals has found that mental suffering such as repeated shaming, and humiliation, especially when inflicted on a child, is a form of extreme persecutory harm. Matter of Chen, 20 I. & N Dec.16, 18-19 (BIA, 1989). It has been noted that that even a single beating can constitute persecution if the beating results in significant physical injury. In a case where the Respondent's face was bruised and a finger broken on account of political beliefs, the court found that the Respondent had shown past persecution. Vaduva v. INS, 131 F.3d 689, 690 (7th Cir. 1997), (cited in Voci v. Gonzalez, 409 F. 3d. 607, 616 (3rd Cir. 2005)). Where a Respondent who was detained, beaten, and had two teeth knocked out, the court found that he had met his burden of proof for persecution. Asani v. INS, 154 F.3d 719, 722-23 (7th Cir. 1998). (cited in Voci v. Gonzalez, 409 F. 3d. 607, 616 (3rd Cir. 2005)). In Voci, the Third Circuit disagreed with the BIA's conclusion that the respondent Voci did not meet the burden of proving persecution. The Court found that the respondent who experienced multiple beatings that caused severe injury, "bleeding, scars, and health problems" by plain clothed men who the Respondent thought were police officers combined with anonymous threats to the respondent and his family reached the level of harm to constitute persecution. Voci at 615. Voci points to BIA precedent which has held that the aggregation of various instances of harm, including "multiple beatings, repeated and personalized threats delivered to the Respondent's home, the vandalization and destruction of property, and the intimidation and humiliation...inflicted on account of...nationality, constitutes past persecution. Matter of O-Z & I-Z-. 22 I. & N. Dec. 23, (BIA 1998).