VASCO E. RUSELLO, AKA Wafik Ezzat Nassib, AKA Wathick Isac Nasyid v. ERIC H. HOLDER, JR., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VASCO E. RUSELLO, AKA Wafik Ezzat
Nassib, AKA Wathick Isac Nasyid,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 11-71013
Agency No. A097-748-014
MEMORANDUM*
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
FILED
MAY 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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(“IT”) experience was outdated, reasoning that Rusello did not offer evidence that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experience was outdated, was clearly erroneous, as it must do before rejecting it.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
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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.
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