Cruz v. Holder

Opinion

FILED NOT FOR PUBLICATION MAR 28 2011

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

NEREA OVANDO CRUZ, No. 07-73037

Petitioner, Agency No. A070-784-550

v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted March 7, 2011 Pasadena, California

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

Nerea Ovando Cruz, a native and citizen of Mexico, petitions for review of

the Board of Immigration Appeal’s (BIA) reversal of the Immigration Judge’s (IJ)

grant of Cancellation of Removal for Certain Non-Permanent Residents under INA

§ 240A(b), 8 U.S.C. § 1229b(b). We review questions of law, such as the BIA’s

compliance with its own regulations, de novo. Brezilien v. Holder, 569 F.3d 403,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 406 (9th Cir. 2009). We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), and we

grant the petition for review.

The applicable regulation requires the Board to review an IJ’s factual

findings for clear error. 8 C.F.R. § 1003.1(d)(3)(I) (“Facts determined by the

immigration judge . . . shall be reviewed only to determine whether the findings of

the immigration judge are clearly erroneous.”). The text of the regulation makes

“clear . . . that where the IJ has made a factual finding, the BIA has very limited

authority to revisit that finding.” Brezilien, 569 F.3d at 414. The clearly erroneous

standard of review allows the BIA to reverse the IJ’s findings of fact in very

narrow circumstances. The reviewing court must determine whether the findings

were “(1) illogical, (2) implausible, or (3) without support in inferences that may

be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d 1247,

1262 (9th Cir. 2009) (en banc) (internal quotation marks omitted) (quoting

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 577 (1985)).

Here, the BIA did not engage in a clear error review of the IJ’s factual

findings supporting her conclusion that Cruz’s two U.S. citizen children would

suffer exceptional and extremely unusual hardship if Cruz were removed to

Mexico. The IJ found that Cruz’s fifteen-year old daughter, a full time high school

student in the U.S., would instead be forced “to work full time if she had to return

2 to Mexico to help support her mother.” The IJ noted that this fact distinguished

Cruz’s case from a prior precedent where “the record did not indicate that [the U.S.

citizen children] would [be] deprived of an education altogether.” Id. The BIA

substituted its own factual findings that the daughter would suffer merely

diminished educational opportunity by working while “completing the one year

necessary to obtain her high school diploma.” The BIA did not explain why the

IJ’s finding was clearly erroneous, but simply concluded that the record “did not

support” the IJ’s findings.

The IJ also found that Cruz would be unable to provide her five-year old son

with “special educational circumstances” to address his learning disability if she

were removed to Mexico. The BIA disagreed, again applying the incorrect

standard of review. It concluded that the record did not support the IJ’s

determination that Cruz’s son’s learning disability was “of such severity that it

could not be adequately addressed in Mexico’s school system.”

On remand, the BIA shall apply the appropriate standard of review to the

IJ’s factual findings regarding the exceptional and extremely unusual hardship that

Cruz’s children would suffer if she were removed to Mexico. The BIA itself has

previously recognized that this standard means that an IJ’s “factfinding may not be

overturned simply because the Board would have weighed the evidence differently

3 or decided the facts differently had it been the factfinder.” In re RSH, 23 I. & N.

Dec. 629, 637 (BIA 2003). As dissenting Board Member Cole stated in this case,

if an IJ makes “factual conclusions which, on the face of the record, are not clearly

erroneous, those factual conclusions serve as a boundary under which we operate

in our capacity as an appellate reviewing body.”

Petition GRANTED; REMANDED.