Rodriguez v. Holder, 683 F.3d 1164, *1170 (9th Cir. Jun. 27, 2012) (BIA erred by making its own factual determination and engaging in de novo review of the IJ's factual findings; 8 C.F.R. 1003.1(d)(3)(i), (iv), allow it to review findings of fact only for clear error, and prohibit it from making its own factual determinations).

The court described the correct standard of review as follows:

The BIA may find an IJ's factual finding to be clearly erroneous if it is illogical or implausible, or without support in inferences that may be drawn from the facts in the record. Anderson v. Bessemer City, 470 U.S. 564, 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.2009) (en banc).(Footnote omitted.)

The Supreme Court's opinion in Anderson is extremely helpful to our understanding of the limits on the BIA when it reviews the IJ's factual findings for clear error. In fact, the Department of Justice cited Anderson in the explanatory comments that it issued to accompany the new regulations adopting the clear error standard of review, and concluded that [a] factfinding may not be overturned simply because the Board would have weighed the evidence differently or decided the facts differently had it been the factfinder. Board of Immigration Appeals: Procedural Reforms to Improve Case Management, 67 Fed.Reg. 54,878, 54,889 (Aug. 26, 2002) (citing Anderson, 470 U.S. at 573, 105 S.Ct. 1504).

Anderson provides important guidance on the purpose and limits of the clear error standard:

Th[e clear error] standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty ... if it undertakes to duplicate the role of the lower court.... If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.

470 U.S. at 573"74, 105 S.Ct. 1504 (emphasis added); see also Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 857"58, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982) (An appellate court cannot substitute its interpretation of the evidence for that of the trial court simply because the reviewing court might give the facts another construction, resolve the ambiguities differently, and find a more sinister cast to actions which the District Court apparently deemed innocent. (quoting United States v. Real Estate Boards, 339 U.S. 485, 495, 70 S.Ct. 711, 94 L.Ed. 1007 (1950))).

In particular, where credibility determinations are at issue, Anderson counsels that even greater deference must be afforded to the IJ's factual findings, for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said. Id. at 575, 105 S.Ct. 1504 (citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)). Similarly, the Fourth Circuit very recently noted that IJs hear witnesses and determine the credibility of evidence. The BIA reviews a paper record, devoid of the nuances of weighing evidence first hand. The IJ is thus in a better position to make factual determinations than the BIA acting in an appellate capacity. Turkson, 667 F.3d at 527.

Of course, as the Anderson Court rightly pointed out, [t]his is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. 470 U.S. at 575, 105 S.Ct. 1504. In certain circumstances, Anderson explains, the weight of the record may overcome a positive credibility determination:

Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination.

Id. (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 396, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). However, the Anderson court concluded by explaining that

when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.

Id. (emphasis added).

In the context of this case, it would be error for the BIA to hold that the IJ's findings of fact and credibility determinations were clearly erroneous if those findings and determinations were not illogical or implausible and had support in inferences that may be drawn from the record, and if Lopez"Rodriguez's testimony is uncontradicted by objective evidence and internally consistent.

(Id. at ___.)