                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 28 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

VASCO E. RUSELLO, AKA Wafik Ezzat                No. 11-71013
Nassib, AKA Wathick Isac Nasyid,
                                                 Agency No. A097-748-014
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, JR., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                       Argued and Submitted May 15, 2014
                            San Francisco, California

Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.

       Vasco Ezzat Rusello petitions for review of the Board of Immigration

Appeals’ (“BIA”) order sustaining the Department of Homeland Security’s

(“DHS”) appeal from a decision of the immigration judge (“IJ”) granting Rusello’s




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
application for special-rule cancellation of removal under the Violence Against

Women Act of 2000 (“VAWA”), 8 U.S.C. § 1229b(b)(2).

      Pursuant to 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review

questions of law. Whether the BIA applied the correct standard of review is a

question of law. Perez-Palafox v. Holder, 744 F.3d 1138, 1143 (9th Cir. 2014);

Vitug v. Holder, 723 F.3d 1056, 1062–64 (9th Cir. 2013). Here, in concluding that

Rusello did not demonstrate the requisite hardship to be eligible for special-rule

cancellation of removal, the BIA engaged in de novo review of the IJ’s factual

findings and conducted its own factfinding in violation of 8 C.F.R. § 1003.1(d)(3).

      The BIA rejected the IJ’s finding that Rusello’s information technology

(“IT”) experience was outdated, reasoning that Rusello did not offer evidence that

he had inquired into job opportunities abroad for someone with his qualifications.

The BIA, however, did not conclude that the IJ’s factual finding that Rusello’s IT

experience was outdated, was clearly erroneous, as it must do before rejecting it.

See Ridore v. Holder, 696 F.3d 907, 917 (9th Cir. 2012); Brezilien v. Holder, 569

F.3d 403, 414 (9th Cir. 2009). The BIA also did not acknowledge the IJ’s factual

findings about the emotional, physical, and financial difficulties Rusello

experienced as a result of the abuse. Under a clear error standard of review, the




                                          2
BIA cannot ignore the IJ’s factual findings. See Vitug, 723 F.3d at 1064; Ridore,

696 F.3d at 917.

      Rather than reviewing the IJ’s factual findings, the BIA conducted its own

review of the record, expressing doubt that Rusello’s IT experience was outdated

in light of the lack of evidence concerning the opportunities available to someone

with his qualifications overseas and finding that Rusello “has other transferable job

skills.” Moreover, despite acknowledging that the IJ made no factual findings as to

the hardship Rusello’s parents would suffer, the BIA also made factual findings on

this point. The BIA has no authority to make such factual findings under 8 C.F.R.

§ 1003.1(d)(3). If the BIA determines that additional factfinding is necessary, the

proper course of action is to remand to the IJ to make further factual findings.

Ridore, 696 F.3d at 919; Rodriguez v. Holder, 683 F.3d 1164, 1173 (9th Cir.

2012).

      Because the BIA applied an incorrect standard of review, we need not reach

the remainder of Rusello’s arguments. See Brezilien, 569 F.3d at 414.



      PETITION GRANTED AND REMANDED.




                                          3
