In reviewing the petitioner’s request for withholding of removal under the Convention Against Torture, the Board of Immigration Appeals applied the wrong standard to the question whether the petitioner’s native government will acquiesce in his torture.
Since 2002, the Board reviews findings of fact and credibility determinations only for clear error. With respect to mixed questions of law and fact, the Board must defer to an immigration judge’s factual findings but retain its independent judgment and discretion regarding application of the standard of law to those facts.
Whether the petitioner has established that the government would acquiesce in his torture is a mixed question of law and fact. The “acquiescence” element first requires an essentially factual prediction as to what would likely happen upon removal – here, a factual finding or findings as to how public officials will likely act in response to the harm the petitioner fears.
The immigration judge in this case was required to decide whether “how public officials will likely act” qualifies as “acquiescence” under the relevant regulations. As the 3rd Circuit concluded, that determination amounts to a legal judgment that must be reviewed by the Board de novo. Here, the Board reviewed the immigration judge’s acquiescence determination only for clear error.
Petition granted in part and remanded for review under the correct standard.