Ryan Damion COULBOURNE, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent, 372 F. App'x 156

SUMMARY ORDER 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. [ AXXX XXX XXX ] (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 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. 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. For the foregoing reasons, the petition for review is GRANTED and the case is REMANDED for further proceedings consistent with this order. . We also note that the BIA incorrectly characterized Keith's arrests as “convictions.” .

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.