The Board of Immigration Appeals’ Standard of Review: An Argument for Regulatory Reform

39 Pages Posted: 11 Apr 2011

See all articles by Scott Rempell

Scott Rempell

South Texas College of Law Houston

Date Written: February 1, 2011


Immigration judges adjudicate hundreds of thousands of cases each year. A substantial percentage of these cases are then appealed to the Board of Immigration Appeals (“Board”). In 2002, the Attorney General issued regulations that drastically altered how the Board should review decisions rendered by immigration judges. Commentators have been critical of many of these regulatory changes, but they have consistently overlooked one particular aspect of the 2002 reforms: a change to the Board’s standard of review. Prior to 2002, the Board could evaluate de novo all aspects of an immigration judge’s decision, but under the 2002 regulations, the Board could only reverse the immigration judge’s findings of fact if those findings were clearly erroneous. This regulatory change appeared to do nothing more than place the Board on par with other appellate bodies that defer to the factual findings of the initial adjudicator. However, the regulation has left the Board’s scope of review in disarray. The Attorney General provided an interpretation of the regulation that opened the door to divergent applications of the enunciated standards. Subsequently, the Board issued several precedential decisions that contained multiple interpretations of its scope of review authority, creating contradictions between its own opinions, and between its opinions and the Attorney General’s commentary. Reviewing the Board’s decisions, the federal courts of appeals have reached different conclusions on several principal aspects of the Board’s authority under the scope of review regulation. Moreover, the Attorney General’s justifications for amending the Board’s standard of review have not come to fruition. In light of all these problems, the regulation should be amended to again provide the Board with de novo authority to review findings of fact.

Keywords: Immigration, Asylum, Administrative, Administrative Law, Administrative Procedure, Standard of Review, de Novo, Clearly Erroneous, Findings of Fact, Factfinding, Fact-Finding, Regulation, Board of Immigration Appeals, Immigration Judge, Immigration Judges, Question of Law, Clear Error

JEL Classification: K00, K2, K20, K23, K3, K30, K39, K4, K40, K41, K49

Suggested Citation

Rempell, Scott, The Board of Immigration Appeals’ Standard of Review: An Argument for Regulatory Reform (February 1, 2011). Administrative Law Review, Forthcoming, Available at SSRN:

Scott Rempell (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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