FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAVIER BERMUDEZ-ARIZA,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent.

No. 15-72572

Agency No.

A079-812-296

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted June 4, 2018

Seattle, Washington

Filed June 25, 2018

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,

and John Antoon II,

*

 District Judge.

Opinion by Judge Bybee

* The Honorable John Antoon II, United States District Judge for the

Middle District of Florida, sitting by designation.
2 BERMUDEZ-ARIZA V. SESSIONS

SUMMARY**

Immigration

The panel granted a petition for review of the Board of

Immigration Appeals’ decision vacating an immigration

judge’s grant of asylum relief. 

The Board in this case remanded to the immigration judge

to reconsider the denial of Convention Against Torture

protection in light of recent caselaw. The Board’s remand

order did not mention anything about retaining jurisdiction

over any matters, including the IJ’s denial of asylum relief on

adverse credibility grounds. On remand, the IJ reconsidered

and reversed his prior adverse credibility determination and

granted Bermudez-Ariza asylum relief. The Board vacated

the grant of asylum, holding that the remand was limited to

reconsideration of CAT protection and that the IJ exceeded

the scope of his jurisdiction by reconsidering the denial of

asylum relief.

The panel explained that for the Board to retain

jurisdiction when remanding to an IJ, its opinion in Matter of

Patel, 16 I. & N. Dec. 600 (BIA 1978), requires it to do two

things: (1) expressly retain jurisdiction, and (2) qualify or

limit the scope of remand. If the Board fails to do either of

these things, the scope of the remand is general and the IJ

may reconsider any of his or her prior decisions. Because the

Board did not expressly retain jurisdiction when it remanded

to the IJ, the panel held that the IJ had jurisdiction to

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BERMUDEZ-ARIZA V. SESSIONS 3

reconsider his initial denial of Bermudez-Ariza’s application

for asylum. The panel remanded for the Board to address the

IJ’s grant of asylum on its merits.

COUNSEL

Cawood K. Bebout (argued), Mount Vernon, Washington, for

Petitioner.

John Beadle Holt (argued) and Sabatino F. Leo, Trial

Attorneys; Anthony P. Nicastro, Acting Assistant Director;

Office of Immigration Litigation, Civil Division, United

States Department of Justice, Washington, D.C.; for

Respondent.

OPINION

BYBEE, Circuit Judge:

This case requires us to address the scope of an

Immigration Judge’s (“IJ’s”) jurisdiction on remand from the

Board of Immigration Appeals (“BIA”). Javier BermudezAriza applied for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). 

The IJ initially denied all relief but, on subsequent remand

from the BIA, reconsidered and granted asylum. The BIA

vacated the IJ’s decision, holding that the IJ lacked

jurisdiction to reconsider asylum on remand. BermudezAriza now petitions our court for review.

For the BIA to retain jurisdiction when remanding to an

IJ, its opinion in Matter of Patel requires it to do two things:
4 BERMUDEZ-ARIZA V. SESSIONS

(1) expressly retain jurisdiction, and (2) qualify or limit the

scope of remand. 16 I. & N. Dec. 600, 601 (BIA 1978). If

the BIA fails to do either of these things, the scope of the

remand is general and the IJ may reconsider any of his or her

prior decisions. See 8 C.F.R. § 1003.23(b)(1). Because the

BIA did not expressly retain jurisdiction when it remanded to

the IJ in this case, the IJ had jurisdiction to reconsider his

initial denial of Bermudez-Ariza’s application for asylum. 

We therefore grant the petition for review and remand to the

BIA for it to address the IJ’s grant of asylum on its merits.

I

Javier Antonio Bermudez-Ariza is a native and citizen of

Colombia. He alleges that he fled Colombia to escape

persecution by the Fuerzas Armadas Revolucionarias de

Colombia (“FARC”) on account of his political opinions. He

entered the United States illegally in March 2002, and the

Department of Homeland Security commenced removal

proceedings against him later the same year. BermudezAriza conceded removability but applied for asylum,

withholding of removal, and protection under CAT.

Bermudez-Ariza testified at a January 2003 hearing

before an IJ, who found him not credible and denied all relief

from removal. The BIA affirmed in May 2004, and

Bermudez-Ariza petitioned our court for review. While his

petition was pending, he also moved the BIA to reopen his

case, alleging ineffective assistance of counsel. The BIA

denied his motion in November 2004, and Bermudez-Ariza

filed a second petition for review in our court. We

consolidated the two petitions, but before they could be fully

briefed, the government moved to remand to the BIA for it to

reconsider Bermudez-Ariza’s CAT claim in light of Reyes-
BERMUDEZ-ARIZA V. SESSIONS 5

Reyes v. Ashcroft, 384 F.3d 782, 787–88 (9th Cir. 2004), and

Zheng v. Ashcroft, 332 F.3d 1186, 1194–96 (9th Cir. 2003). 

The government stipulated that, if the case was remanded,

Bermudez-Ariza would be able to reassert all issues in a

subsequent petition for review.

We granted the government’s motion and remanded to the

BIA “for consideration of petitioner’s Convention Against

Torture claim.” The BIA, in turn, “remand[ed] to the

Immigration Judge in order for him to reassess his decision

taking into consideration the cases noted [i.e., Reyes-Reyes

and Zheng] and any other recent precedent decisions which

would affect the respondent’s claim for protection under the

Convention Against Torture.” The BIA’s remand order

concluded: “The record of proceedings is remanded for

further consideration of the respondent’s claim under the

Convention Against Torture.” The order did not, however,

mention anything about retaining jurisdiction.

The case came before the same IJ as before. In March

2010, the IJ reversed his prior adverse credibility

determination and granted asylum. The IJ gave little

explanation for reversing the adverse credibility

determination aside from stating that “recent Ninth Circuit

case law has repeatedly been reversing adverse credibility

findings in Pre REAL ID ACT cases such as this,” and citing

Chawla v. Holder, 599 F.3d 998 (9th Cir. 2010), and Tijani

v. Holder, 598 F.3d 647 (9th Cir. 2010). In May 2012, the

BIA vacated the grant of asylum in a non-precedential,

single-member decision, holding that the IJ “exceeded the

scope of his jurisdiction on remand.” Because the IJ’s

decision contained “onlyone, conclusorysentence addressing

CAT relief,” the BIA remanded to the IJ for entry of a new

order on just the CAT claim. The IJrendered an oral decision
6 BERMUDEZ-ARIZA V. SESSIONS

denying CAT relief in January 2013, and the BIA affirmed in

July 2015.

Bermudez-Ariza now petitions our court for review of the

BIA’s July 2015 decision affirming denial of CAT relief, the

May 2012 decision vacating the grant of asylum, and—in

accordance with the stipulation—the May and November

2004 decisions affirming the initial denial of all relief and

denying the motion to reopen. Specifically, he makes four

alternative arguments: (1) the IJ had jurisdiction to reconsider

and grant asylum; (2) substantial evidence does not support

the IJ’s initial denial of relief from removal; (3) the BIA

abused its discretion in denying the motion to reopen; and

(4) we should remand to the BIA for it to decide whether to

grant humanitarian asylum. Because we agree that the IJ had

jurisdiction to reconsider and grant asylum, we need not

consider Bermudez-Ariza’s remaining arguments.

II

In general, an IJ may “upon his or her own motion at any

time . . . reopen or reconsider any case in which he or she has

made a decision, unless jurisdiction is vested with the Board

of Immigration Appeals.” 8 C.F.R. § 1003.23(b)(1). The

question here is whether the BIA retained jurisdiction when

remanding to the IJ “for further consideration of the

respondent’s claim under the Convention Against Torture.” 

We review this question of law de novo. See De Martinez v.

Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004).

The BIA has itself explained the circumstances under

which it retains jurisdiction when remanding to an IJ. In

Patel, an IJ found two respondent aliens deportable, and the

BIA affirmed. 16 I. & N. Dec. at 601. The respondents then
BERMUDEZ-ARIZA V. SESSIONS 7

moved the BIA to reopen. Id. at 600–01. The BIA denied the

motion as to the male respondent, but granted it as to the

female respondent and remanded her case to the IJ. Id. at

601. While the female respondent’s case was pending before

the IJ, both respondents once again moved the BIA to reopen

proceedings. Id. at 600. The BIA denied the motion as to the

male respondent but held that it lacked jurisdiction to

adjudicate the motion as to the female respondent:

[W]hen the Board remands a case to an

immigration judge for further proceedings, it

divests itself of jurisdiction of that case unless

jurisdiction is expressly retained. Further,

when this is done, unless the Board qualifies

or limits the remand for a specific purpose,

the remand is effective for the stated purpose

and for consideration of any and all matters

which the Service officer deems appropriate

in the exercise of his administrative discretion

or which are brought to his attention in

compliance with the appropriate regulations.

Id. at 601; see also In Re M-D-, 24 I. & N. Dec. 138, 141–42

(BIA 2007) (reaffirming Patel and holding that the IJ

reacquired jurisdiction on remand).

In Johnson v. Ashcroft, the Third Circuit relied on the

BIA’s decision in Patel to address a situation strikingly

similar to the instant case. 286 F.3d 696 (3d Cir. 2002). The

BIA had affirmed denial of Jimmy Johnson’s application for

asylum and withholding of removal. Id. at 698. Johnson then

moved the BIA to reopen for consideration of relief under

CAT. Id. The BIA granted his motion and remanded to the

IJ “for consideration of the respondent’s claim pursuant to
8 BERMUDEZ-ARIZA V. SESSIONS

[CAT] regulations.” Id. at 699. On remand, the IJ denied

CAT relief but granted asylum and withholding of removal. 

Id. The BIA, however, vacated the grant of asylum and

withholding on the ground that the IJ lacked jurisdiction to

consider those forms of relief. Id.

The Third Circuit granted Johnson’s petition for review,

holding that the BIA acted arbitrarily in departing from Patel. 

According to the Third Circuit, Patel required that the BIA do

“two things” in its remand order to retain jurisdiction:

(1) “expressly retain jurisdiction,” and (2) “limit the remand

to a specific purpose.” Id. at 701. The Third Circuit held that

the BIA did neither of those things in Johnson’s case and

therefore vacated the BIA’s decision and remanded for

further proceedings. Id. at 705; see also Linares-Urrutia v.

Sessions, 850 F.3d 477, 482 (2d Cir. 2017) (“The government

is correct that the initial BIA order set forth a purpose for the

remand; but the order did not expressly limit the IJ’s ability

to revisit other issues. In the absence of any such limiting

language or other indicia, the scope of a remand is general.”

(citing Patel, 161 I. & N. Dec. at 601, and Johnson, 286 F.3d

at 703)).

We cited Johnson with approval in Fernandes v. Holder,

619 F.3d 1069, 1074 (9th Cir. 2010). There, an IJ denied

Jacinto Pascoul Fernandes’s application for asylum. Id. at

1071. The BIA reversed, holding that Fernandes had proven

past persecution, and remanding for the IJ to decide whether

the resulting presumption of future persecution was rebutted. 

Id. at 1072. On remand, the government filed a motion to

reopen in light of new evidence that Fernandes had

knowingly filed his asylum application through an individual

who routinely filed fraudulent applications. Id. at 1072–73. 

The IJ granted the motion and found that Fernandes’s asylum
BERMUDEZ-ARIZA V. SESSIONS 9

application was frivolous. Id. at 1073. The BIA affirmed,

holding that the IJ had properly considered the government’s

motion. Id.

Fernandes petitioned our court for review, and we denied

the petition. Id. at 1076. Relying on the BIA’s decision in

Patel and the Third Circuit’s decision in Johnson, we held

that “the IJ’s jurisdiction on remand from the BIA is limited

onlywhen the BIA expressly retains jurisdiction and qualifies

or limits the scope of the remand to a specific purpose.” Id.

at 1074. Because the BIA’s “remand order did not limit or

qualify the IJ’s ability to consider new evidence or motions”

but “simply directed the IJ to conduct further proceedings

‘consistent with’ the Board’s opinion,” we concluded that the

IJ had properly considered the government’s motion to

reopen on remand. Id.

Whereas the government in Fernandes argued that the

scope of remand from the BIA was general, here the shoe is

on the other foot, and the government now argues that the

scope of remand from the BIA was limited. The government,

however, must play by the same rules. Whether it is the

government or the petitioner who has an interest in the IJ’s

jurisdiction on remand, the BIA must follow the procedure it

outlined in Patel. Unless and until it overrules Patel, the BIA

only retains jurisdiction when remanding to an IJ if its

remand order expressly retains jurisdiction and qualifies or

limits the scope of remand to a specific purpose. See Patel,

16 I. & N. Dec. at 601.

We think it likely that the BIA limited the scope of

remand to a specific purpose in this case by stating that it was

remanding “for further consideration of the respondent’s

claim under the Convention Against Torture.” That said, the
10 BERMUDEZ-ARIZA V. SESSIONS

BIA’s remand order nowhere mentioned jurisdiction, much

less expressly retained it. Thus, irrespective of whether the

BIA qualified or limited the scope of remand, the IJ had

jurisdiction to reconsider his earlier decisions under 8 C.F.R.

§ 1003.23. Indeed, this result is consistent with our policy of

“encourag[ing] remand on an open record” to “allow[ ] prior

decision-makers to cure an error.” Padilla-Martinez v.

Holder, 770 F.3d 825, 831 (9th Cir. 2014).

III

In sum, the BIA did not expressly retain jurisdiction when

it remanded to the IJ, and therefore the scope of its remand

was general under Patel. As such, the IJ had jurisdiction to

reconsider and grant Bermudez-Ariza’s application for

asylum. The petition for review is GRANTED and the case

remanded to the BIA for it to address the IJ’s grant of asylum

on its merits and for any further proceedings consistent with

this opinion.