NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABLO ANTONIO NAVARRETE No. 18-72020
NAVAS,
Agency No. A072-398-795
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 12, 2021**
San Francisco, California
Before: BYBEE and R. NELSON, Circuit Judges, and WHALEY,*** District
Judge.
Pablo Antonio Navarrete Navas (“Navarrete”), a native and citizen of El
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
Salvador, petitions for review of the Board of Immigration Appeals (“BIA”)
decision reversing the 2017 Immigration Judge (“IJ”) decision granting his
application for adjustment of status. Navarrete claims that the BIA applied the
wrong standard of review. Our jurisdiction is governed by 8 U.S.C.
§ 1252(a)(2)(D). See Rodriguez v. Holder, 683 F.3d 1164, 1169 (9th Cir. 2012).
We grant the petition and remand.
Because the parties are familiar with the facts, we do not recite them here.
Generally, this Court cannot review the BIA’s discretionary decision to deny a
noncitizen adjustment of status under 8 U.S.C. § 1255. Torres-Valdivias v. Lynch,
786 F.3d 1147, 1151 (9th Cir. 2015). However, this Court retains jurisdiction over
constitutional questions and questions of law. Id. And whether the BIA applied the
correct standard of review to the IJ’s decision is a question of law this Court
reviews de novo. Vitug v. Holder, 723 F.3d 1056, 1062–63 (9th Cir. 2013).
The BIA may not engage in de novo review of the IJ’s findings of fact. Id. at 1063;
8 C.F.R. § 1003.1(d)(3)(i). Instead, the BIA shall review the IJ’s factual findings
for clear error. Vitug, 723 F.3d at 1063.
The BIA engaged in de novo fact-finding by contradicting the IJ’s findings
with respect to the family’s medical and financial needs without rejecting those
findings as clearly erroneous. The BIA found that Navarrete’s son’s dental
problems had been corrected. This is contrary to the IJ’s finding that Navarrete’s
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son “continues to need orthodontic care to fully correct [his dental issues].”
Similarly, the BIA characterized Navarrete’s wife’s health problems as “relatively
minor,” even though the IJ found that Navarrete’s wife feels ill on a weekly basis
and depends on Navarrete for her care and to pay for her medical expenses. Lastly,
the BIA’s finding that Navarrete’s children and wife could stay in the home that
Navarrete “owns” contradicts the IJ’s finding that the family would lose the home.
Additionally, the BIA made factual findings that the IJ never made: (1) that
Navarrete’s father-in-law’s transfer to a nursing home decreased Navarrete’s
responsibility; and (2) that Navarrete could find employment in El Salvador.
For these reasons, we conclude that the BIA failed to apply the clear error
standard of review to the IJ’s factual findings. See 8 C.F.R. § 1003.1(d)(3)(i)
(“Facts determined by the [IJ] . . . shall be reviewed only to determine whether the
findings of the [IJ] are clearly erroneous.”); see Vitug, 723 F.3d at 1064; see also
Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA 2015) (“[A]n [IJ]’s predictive
findings of what may or may not occur in the future are findings of fact . . .”). We
therefore grant the petition and remand for the BIA to review the IJ’s findings of
fact for clear error.
PETITION FOR REVIEW GRANTED; REMANDED.
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