09-1865-ag
Coulbourne v. Holder

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER
FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE
P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A
DOCUM ENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 20th day
of April, two thousand ten.

Present:
         ROBERT A. KATZMANN,
         PETER W. HALL,
                Circuit Judges,
         JED S. RAKOFF,
                District Judge.*
________________________________________________

RYAN DAMION COULBOURNE,

             Petitioner,

                     v.                                           No. 09-1865-ag

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

         Respondent.**
________________________________________________




       *
       The Honorable Jed S. Rakoff, United States District Judge for the Southern District of
New York, sitting by designation.
       **
            The Clerk of the Court is directed to amend the caption as set forth above.
 For Petitioner:                            NANCY E. MARTIN , Collins & Martin, P.C.,
                                            Wethersfield, CT


 For Respondent:                            ZOE J. HELLER , Trial Attorney (Tony West, Assistant
                                            Attorney General, Lyle D. Jentzer, Senior Litigation
                                            Counsel, of counsel), Office of Immigration
                                            Litigation, U.S. Department of Justice, Washington,
                                            DC


       UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and DECREED that the

petition for review is GRANTED.

       Ryan Coulbourne, a native and citizen of Jamaica, seeks review of an April 3, 2009 order

of the BIA affirming the December 17, 2008 decision of Immigration Judge (“IJ”) Michael W.

Straus, which denied Coulbourne’s motion to terminate removal proceedings against him and

ordered that he be removed to Jamaica. In re Ryan Damion Coulbourne, No. A041 457 839

(BIA Apr. 3, 2009). We assume the parties’ familiarity with the underlying facts and procedural

history of the case.

       In Poole v. Mukasey, 522 F.3d 259 (2d Cir. 2008), under circumstances almost identical

to those presented in this case, we remanded the petitioner’s case to the BIA “for consideration

of what relief, if any, might be accorded to Poole with respect to his claim for derivative

citizenship.” Id. at 266. In this case, the BIA distinguished Poole, finding that the record

indicates the reason for the delay in processing the naturalization application of the petitioner’s

father, Keith, whereas in Poole no such information was available. In doing so, however, the

BIA engaged in improper fact-finding. “For appeals filed with the BIA after September 25,

2002, the BIA may only review the IJ’s factual findings to determine whether they are clearly

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erroneous, and may not engage in fact-finding, other than taking administrative notice of

commonly known facts.” Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296 (2d Cir.

2006) (per curiam). Here, the IJ specifically found that he could not determine from the record

whether there was a causal link between Keith’s failure to list his prior arrests on his initial

naturalization application and the agency’s delay in processing his application. The BIA, in

coming to the opposite conclusion, thus went beyond the appropriate scope of its review of the

IJ’s decision.1

        When the BIA fails to apply a deferential standard to the IJ’s findings of fact, it commits

legal error, and remand is appropriate. See Fen Yong Chen v. Bureau of Citizenship &

Immigration Servs., 470 F.3d 509, 515 (2d Cir. 2006). In remanding, we further note that the

BIA’s improper fact-finding was directly relevant to its legal conclusion that the reasoning of

Poole did not apply and that, accordingly, it did not have occasion to consider what relief might

be available to Coulbourne.2

        For the foregoing reasons, the petition for review is GRANTED and the case is

REMANDED for further proceedings consistent with this order.

                                                    FOR THE COURT:
                                                    CATHERINE O’HAGAN WOLFE, CLERK




        1
            We also note that the BIA incorrectly characterized Keith’s arrests as “convictions.”
        2
         We take this opportunity to encourage the BIA to consider, in an appropriate case,
issuing a precedential opinion addressing the concerns we raised in Poole.

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