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The BIA may never engage in de novo review of an IJ’s factual findings or credibility determinations. It may only review these for clear error, and it is legal error for the BIA to make its own factual determinations. If an IJ has not determined a fact necessary to the resolution of the case, the BIA is required to remand the case to the IJ.

Rene Lopez-Rodriguez (Rodriguez) appeals a Board of Immigration Appeals’ (BIA) reversal of an immigration judge’s (IJ) holding, for making its own factual determinations and employing de novo review of the IJ’s factual findings. The central issue regards BIA coming to different factual conclusions of the case, (mainly driving without having to re-fuel, and Rodriguez’s testimony.) The IJ made no factual findings on these matters, finding “no reason to believe” Rodriguez did re-fuel or was involved in drug trafficking. 8 C.F.R. §1003.1(d)(3)(i) strictly prohibits BIA from engaging in de novo review of an IJ’s fact finding. BIA attempted to approach the situation as a clear error review, pursuant to §1003.1(d)(3)(i), labeling the IJ’s findings as “clearly erroneous.” An IJ’s factual finding is clearly erroneous if “illogical or implausible,” or “without support in inferences” drawn from the facts in record. “Factfinding may not be overturned simply because the [BIA] would have weighed the evidence differently or decided the facts differently had it been the factfinder.” Precedents establish that when an IJ has not determined a fact necessary to the resolution of the case, the BIA is required to remand to the IJ; not conduct its own factfinding. The Court went further saying “credibility determinations” should receive “even greater deference,” “for only a [IJ] can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Objective evidence must be “internally inconsistent or implausible on its face that a reasonable factfinder would not credit it,” for a clear error finding regarding credibility. However, “if not internally inconsistent,” these findings “can virtually never be clear error.” The Court held, “although the BIA invoked clear error standard, it failed to apply this deferential standard of review.” GRANTED and REMANDED.