In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3512

XUE Y. REN,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A79 573 057

____________

SUBMITTED JANUARY 13, 2006—DECIDED MARCH 9, 2006

____________

Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.

POSNER, Circuit Judge. Xue Ren was ordered removed

from the United States by an immigration judge after the

judge denied her request for asylum and other relief. The

Board of Immigration Appeals affirmed, and later denied

her motion to reopen the proceeding. After she filed a

petition in this court for review of the denial of the motion to reopen, the Justice Department moved us to remand the case to the Board “for further consideration of

Petitioner’s requests for asylum, withholding of deportation

and Convention Against Torture protection in light
2 No. 05-3512

of current country conditions in the People’s Republic of

China.” There was no further elaboration. The petitioner

indicated her agreement with the motion.

The Department’s motion, in part because of its extreme

brevity, raised questions in our mind. It was not a formal

confession of error; nor did it seem to be a motion to

remand for the limited purpose of considering the possible bearing of newly discovered evidence, because the

motion stated that, “if granted, [the motion] brings the

present matter on review to conclusion.” We were concerned that if the Department was attempting to confess error, its attempt was defective because its failure to

give reasons prevented us from evaluating the merits of

the confession. When the Department confesses error on

a federal district court, “our judicial obligations compel

us to examine independently the errors confessed.” Young

v. United States, 315 U.S. 257, 258-59 (1942). See also, e.g.,

Sibron v. New York, 392 U.S. 40, 58 (1968).

To allay our concerns, we invited the parties to file

supplemental memoranda addressing the following questions:

1. Whether the Board of Immigration Appeals has any

policy-making function under current law, or is instead an adjudicatory body only.

2. Whether, if the Board acts as an adjudicator, the court

of appeals must exercise independent judgment in

response to a confession of error or equivalent request

for a remand, as it must in the case of a confession of

error by a district court. See, e.g., Young v. United States,

315 U.S. 257, 258-59 (1942); Sibron v. New York, 392 U.S.

40, 58 (1968).
No. 05-3512 3

3. Whether, if the Attorney General determines that the

Board has made a mistake, he can instruct the Board to

reopen the proceeding, making a remand (or other

judicial action) unnecessary.

4. Whether the motion to remand in this case is a

confession of error.

The parties have filed their memoranda, and we can

now proceed to decide the Department’s motion.

As the Department explains in its memorandum (and the

petitioner agrees), the Board of Immigration Appeals does

not have authority to promulgate rules or policies other than

for its internal operations; it is indeed an adjudicatory body.

But it is an administrative body rather than a federal court,

and is entitled to the usual deference that reviewing courts

give such bodies; it is also entitled to the deference that

executive-branch agencies receive from courts with respect

to matters relating to the nation’s foreign relations. INS v.

Aguirre-Aguirre, 526 U.S. 415, 425 (1999). Deference in turn

implies a greater latitude for reconsideration than in the

case of district courts. Rather than confessing error, the

Department explains, it wants a remand in this case to

enable the Board of Immigration Appeals to conduct an

additional investigation, or attempt a fuller explanation,

concerning issues presented by the petitioner’s request for

relief. Remanding an agency proceeding in lieu of determining the merits of the challenge to it was commended by the

Supreme Court in Lawrence v. Chater, 516 U.S. 163, 165-74

(1996) (per curiam); see also Florida Power & Light Co. v.

Lorion, 470 U.S. 729, 744 (1985); Ford Motor Co. v. NLRB, 305

U.S. 364, 375-76 (1939); Citizens Against the Pellissippi

Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 416-17 (6th

Cir. 2004); Milk Train, Inc. v. Veneman, 310 F.3d 747, 755-56

(D.C. Cir. 2002); SKF USA Inc. v. United States, 254 F.3d 1022,
4 No. 05-3512

1029-30 (Fed. Cir. 2001). An “agency may request a remand

(without confessing error) in order to reconsider its previous

position.” Id. at 1029. The courts of appeals have been

critical of recent decisions by the Board in asylum matters,

e.g., Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005),

and cases cited there; and it is natural that the Department, without necessarily confessing error, should want the

Board to have an opportunity to reconsider some of

its asylum decisions in light of the emerging case law.

A further distinction between confession of error on a

district court and the remand sought here is that, as the

Supreme Court explained in the Sibron case, the principal reason for an appellate court to conduct an independent evaluation of the confessed error is to make

sure that by accepting the confession the court does not

mistakenly wipe out a sound judicial decision, namely

the decision that the appellee has confessed was erroneous. That is not a consideration in our review of a decision by the Board of Immigration Appeals, and not only

because the Board is not a federal district court. As the

Department explains in its supplementary memorandum, if the Attorney General wants to withdraw a decision by the Board, whether thinking it erroneous or on any

other ground, he can direct the Board to refer the case

to him for review, 8 C.F.R. § 1003.1(h)(1)(i); In re N-J-B-,

22 I. & N. Dec. 1057, 1088 (AG 1997), thereby rendering

the Board’s decision nonfinal and hence not judicially

reviewable. In re E-L-H-, 23 I. & N. Dec. 814, 820 (BIA

2005); 8 U.S.C. § 1252(a)(1). That would be a step beyond the

one the Attorney General has taken in this case in asking us

to remand the case. The Board itself, moreover, can reopen

or reconsider any decision even if no party requests it to do

so. 8 C.F.R. § 1003.2(a); In re X-G-W-, 22 I. & N. Dec. 71, 73

(BIA 1998). Again the effect is to render the decision
No. 05-3512 5

nonreviewable. Bronisz v. Ashcroft, 389 F.3d 632, 637 (7th Cir.

2004); Lopez-Ruiz v. Ashcroft, 298 F.3d 886 (9th Cir. 2002) (per

curiam).

The motion to remand the matter to the Board of Immigration Appeals is

GRANTED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-9-06