Russell Abrutyn

Abrutyn Law PLLC

3765 12 Mile Road

Berkley, MI 48072


Monday, January 9, 2012

Board unclear as to legal standard, Sixth Circuit remands

Lin v. Holder, No. 11-3262 (6th Cir. Jan. 4, 2012) (unpublished)

The Board's application of legal principles to undisputed facts, rather than its underlying determination of those facts or its interpretation of governing statutes is reviewed de novo, not under the substantial evidence standard.

In this case, the IJ granted asylum to this Chinese national on his political persecution claim.  The Board sustained ICE's appeal and ordered him removed.

On de novo review, the Court remanded because the Board appeared to have applied the higher withholding of removal standard to the review of the asylum claim, since it cited to A-M-, which was decided on withholding, not asylum, grounds.

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