(CN) – The Board of Immigration Appeals improperly concluded that an immigrant was not eligible for asylum because he had committed a sex crime, the 2nd Circuit ruled. The court said this determination violated federal laws prohibiting the board from “engaging in its own factfinding.”
The immigration judge had ruled that the pre-sentence report does not “conclusively establish” whether petitioner Esperanza Guzman had committed the sex crime. Guzman claimed he was innocent and pleaded guilty to a lesser crime.
Guzman appealed his case to the BIA, which must defer to the immigration judge’s factual findings and may only overturn them if they are “clearly erroneous.”
But the board, on a 2-1 vote, found that the “serious criminal conviction, failure to accept responsibility for his actions, and failure to provide evidence of rehabilitation outweigh the favorable factors presented in this case.”
The New York-based appeals court noted that there were competing accounts of the crime as originally charged.
“The BIA, in contrast with the [immigration judge], relied on one of these accounts, thereby essentially making its own finding as to the nature of the crime,” the court concluded.
It granted the petition for review and remanded.