BIA Applied The Wrong Standard, Court Rules

     DENVER (CN) – The 10th Circuit reversed a deportation order against a diamond miner from Sierra Leone, saying the Board of Immigration Appeals applied the wrong standard of review when determining his credibility.




     The BIA was supposed to review the immigration judge’s ruling for Essa Kabba for clear error, not engage in its own fact finding, Judge Lucero wrote.
     But the BIA, focusing on the evidence instead of the judge’s ruling, reversed the finding that Kabba was a credible witness in his case for political asylum.
     Kabba claimed that members of the opposition group Revolutionary United Front raped his wife, held a gun to his head, threatened to kill him, and kidnapped his wife and children. He attributed the persecution to his and his family’s support of then-President Tijan Kabbah, whom the rebels violently opposed.
     The Department of Homeland Security appealed the immigration judge’s ruling for Kabba, calling it “clearly erroneous.” The BIA agreed, but not because the ruling contained a clear error, but because it reevaluated the evidence against Kabba. The BIA found that he was not credible because his testimony changed from one hearing to the next, and because he had forged papers to get into the United States. The board also noted that political changes in Sierra Leone weakened his fear of future persecution.
     But when explaining its reversal, the board cited reasons that the immigration judge never mentioned, such as Kabba’s allegedly general, confusing answers to questions about the forged documents.
     “It is thus apparent that the BIA actually reweighed the evidence submitted, which is not permitted to do on clear error review, and that it simply substituted its own judgment for that of the (immigration judge),” Lucero concluded.
     The court vacated the BIA’s ruling and remanded, but denied Kabba’s petition for review on his Convention Against Torture request.

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