facts in the record than to others” to make findings contrary to those of the

3 immigration judge, we “infer that the [Board] applied the wrong standard of

review.” Soto-Soto, 1 F.4th at 659. We therefore grant the petition as to this claim,

and we remand for the Board to reevaluate the immigration judge’s findings under

the correct standard of review.

Costs shall be taxed against the respondent.

PETITION DENIED in part and GRANTED in part; REMANDED.

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FILED

Khan v. Garland, No. 20-72191 JUN 30 2023 BUMATAY, Circuit Judge, dissenting:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I would deny the petition for review here. While the Board of Immigration

Appeals (“BIA”) cannot engage in factfinding, it has clear authority to review the

Immigration Judge’s (“IJ”) factual findings for “clear[] error.” 8 C.F.R.

§ 1003.1(d)(3)(i). And here, the best reading of the BIA’s decision is that it

overturned the IJ’s factual findings under that standard.

The BIA found the IJ’s finding that Naeem Khan was rehabilitated to be hard

to square with the record. And the BIA justified its conclusion: Notwithstanding

Khan’s expression of remorse during his removal proceedings, his egregious and

recent criminal conduct undermines any finding of rehabilitation. Khan repeatedly

violated protection and no-contact orders only one year before the IJ found that he

was rehabilitated. As the BIA pointed out, such actions show contempt for the

criminal justice system and his former spouse and children—the victims of his

crimes. The IJ also seemingly credited Khan for his sobriety and his lack of new

criminal conduct, but Khan was incarcerated during the entire time after his arrest.

That’s a thin reed to hang a rehabilitation finding. Finally, the BIA also observed

that the IJ ignored significant portions of Khan’s testimony when he continued to

minimize and deny his criminal conduct and even blamed his victims for his actions.

So this is not a case in which the BIA “ignored the IJ’s findings” without explaining

why. Ridore v. Holder, 696 F.3d 907, 919 (9th Cir. 2012). Rather, the BIA 1 “grapple[d] with the evidentiary record” before rejecting the IJ’s finding as

implausible. Id.

I thus respectfully dissent.

2