F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J A V I E R B E R

M U D E Z -A R

I Z A , P etitioner ,

v

.

J E F F E R S O N B

. S E S S I O N S I I I , Attorney General, Respondent. N o. 15-72572

Ag ency No. A079-812-296

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Arg ued and Submitted J une 4, 2018 Seattle, W a shing ton

F iled J une 25, 2018

B efore: J a

y S. B y bee and N. Randy

Smith, Circuit J udg es, and J ohn Antoon I I
, * District J udg e.
Opinion by

J udg e B y bee

* T h e Ho n o rab le J o h n A n to o n II, Un i ted S tates District J u d g e f o r th e Mid dle District o f

Flo rid a, sittin g b y

d esig n atio n

.B E R M U D E Z -A R

I Z A V

. S E S S I O N S 2

SUMMARY * *

Im m igration

The panel g ranted a petition for review o f the B oard o f I mmig r a tion Appeals’ d ecision vacating an immig r ation judg e’s g r ant of asy

lum relief.

The B oard in this case remanded to the immig ration judg e t o reconsider the denial of Convention Ag ainst Tortu r e protection in lig ht o f recent caselaw. The B o ard’s r e mand order di d n ot mention any thing about retaining jurisdiction

over any matters, including the I J ’s denial of asy lum relief on adverse credibility g rounds. On remand, the I J reconsidered and rever sed his prior adverse credibility determination a nd g ranted B ermudez -Ariz a asy lum r elief. T h e B oard vacated the g rant of asy lum, holding that the remand was lim i t e d t o reconsideration of CAT protection a nd that the I J ex ceeded the scope of his jurisdiction by reconsidering th e denial o f asy lum relief.

The panel e x plained that for the B oard to retain jurisdiction w hen remanding to a n I J
, its opinion in M

atter of Patel, 16 I . & N . Dec. 6 00 (B I A 1978), requires it to do two thing s: (1) e x pressly retain jurisdiction, and (2) qualify o r limit the scope of r emand. I f the B oard fails to do either o f these thing s, the scop e of the remand is g e neral and the I J may r e consider any of his or h er prior d ecisions. B e cause the B oard did not ex pressly retain jurisdiction when it remanded
to the I J
, the panel h eld that the I J had jurisdiction to

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B E R M U D E Z -A R

I Z A V

. S E S S I O N S 3

reconsider his initial denial of B e rmudez -Ariz a’s a pplication for asy lum. T he panel r emanded f or the B oard to address the I J ’s g r ant of asy

lum on its merits.

COUNSEL

Cawood K. B ebout (arg

ued), Mount Vernon, W ashing ton, for Petitioner.

J ohn B eadle Holt ( arg ued) and Saba t ino F

. L eo, Trial Attorney s; Anthony P. Nicastro, Acting Assistant Director; Office of I mmig ration L itig ation, Civil Division, United States Department of J ustice, W ashing ton, D .C.; for Respondent.

OP INION

B YB EE, Circuit J udg e:

T h is c ase requires us to address the scope of a n I mmig r a tion J udg e’s ( “I J ’s”) jurisdiction on remand from the B oard of I mmig r ation Appeal s (“B I A”). J avier B ermudez

Ariz a applied for asy lum, withholding of removal, a nd protection under th e C o n vention Ag ainst Torture (“CAT”). The I J initially denie d a l l relief but, on subsequent remand from the B I A, reconsidered and g ranted asy lum. T h e BI A

v a c a ted the I J ’s decision, holding that the I J lacked ju r i s d iction to reconsider asy lum o n remand. B ermudez

Ariz a now petitions our court for review.

F or the B I A to r e t a in jurisdiction when remanding to an I J
, its opinion in Matter of Patel requires it to d o two thing s:B E R M U D E Z -A R

I Z A V

. S E S S I O N S 4

(1) ex pressly retain j u r isdiction, and (2) qualify or limit the

s c o p e o f remand. 16 I

. & N. D ec. 6 00, 601 (B I A 1978). I f the B I A fails to do either of these thing s, the scope of the remand is g eneral and the I J may reconsider any of h is o r her prior decisions. See 8 C.F .R. § 1003.23(b)(1). B ecause t he B I A d id not e x pressly retain jurisdiction when it remanded to the I J in this case, the I J had jurisdiction to reconsider his initial denial of B ermudez -Ariz a’s application for asy lum. W e therefore g rant the petition for r eview and remand to the B I A for it to address the I J ’s g rant of asy lum on its merits.

I

J avier Antonio B ermudez -Ariz a is a native and citiz en o f Colombia. He alle g es that he fled Colombia to escape persecution by the F uerz as Armadas Revolucionarias de Colombia ( “F A RC”) on account of his political opinions. He entered the United States illeg ally in M a r c h 2002, and the Depa rtment of Homeland Security commenced removal proceeding s a g ainst him later the same y ear. Be rm u d ez

Ariz a conceded removability but applied for a sy lu m, withholding of removal, and protection under CAT.

B e rmudez -Ari z a t estified at a J anuary 2003 h earing before an I J
, who found him not c redible and denied all relief from removal

. T he B I A a ffirmed in May 2004, a nd B ermudez -Ariz a petitioned o ur c o u rt f or review. W h ile his petition was pending
, he also moved the B I A to r e o p e n h is
case, alleg ing ineffective as s istance o f counsel. The B I A denied his motio n i n November 2004, and B ermudez -Ariz a filed a second petition f or review in o u r court. W e consolidated the two petitions, but before they could be f ully briefed, the g overnment moved to remand to the B I A for it to reconsider B ermudez -Ariz a’s CAT claim in lig ht of Reyes-B E R M U D E Z -A R

I Z A V

. S E S S I O N S 5

Reyes v. Ashcroft
, 384 F .3d 782, 787–88 (9th Cir. 2004), a nd Z h e n g v. Ashcroft
, 3 32 F .3d 1186, 1194–96 (9th Cir. 2003 ). The g overnment stipula t e d t hat, if the case w as remanded, B ermudez -Ariz a would be able to reassert all issue s i n a subsequent petition for review.

W e g ranted the g overnment’s motion and remanded to the B I A “for c onsideration of p e titioner’s Convention Ag ainst Torture claim.” Th e BI A, in turn, “remand[ ed] to the I mmig r a tion J udg e in order for him to r eassess his decision taking into consideration t he c ases noted [ i.e., Reyes-Reyes and Zheng ] and a

ny other recent p r ecedent decisions which would affect the respondent’s claim for protection under the Convention A g ainst T orture.” The B I A’s remand order concluded: “The re co rd of proceeding s is remanded for further consideration of the respon d e n t’s claim under the Convention Ag ainst Torture.” The or der did not, however, mention any

thing about retaining jurisdiction.

The case c a m e b e fore the same I J a s before. I n March 2 0 1 0
, the I J reversed his prior adverse credibili t y determination and g ranted as y l u m

. The I J g a ve little

e x p l a n a t i o n f

o r r e v e r s i n g t h e a d v e r s e c r e d i b i l i t y determination aside f

rom st at i n g that “recent Ninth Circuit

case law has repeatedly been reve r s i ng adverse credibility finding s in Pre REAL I D ACT cases such as this,” and citing Chawla v

. Holder
, 599 F .3d 998 (9 t h Cir. 2010), a nd Tijani

v. Holder
, 598 F .3d 647 (9th C i r

. 2010). I n May 2012, the B I A vacat e d t h e g rant of asy lum in a non-precedential, sing le-member decision, holding that the I J “ex ceeded the
scope of his jurisdiction on remand.” B ecause t h e I J ’s decision contained “ only one, conclusory s e n tence addressing CAT r elief,” the B I A rema n d e d t o the I J for entry of a new order on just the CAT claim. The I J rendered an oral decisionB E R M U D E Z -A R

I Z A V

. S E S S I O N S 6

deny ing CAT relief in J anuary 2013, and the B I A affirmed in J uly 2015.

B e rmudez -Ariz a n ow petitions our court f or review o f the B I A’s J u ly 2015 decision affirming denial o f CAT relief, the May 2012 d e c i sion vacating the g rant of asy lum, a nd—in accordance with the stipulation—the M a y and N ovember 2004 decisions affirming the initial denial of all relief a nd deny ing the motion to reopen. Specifically
, he makes four alternative arg u ments: (1) the I J had jurisdiction to reconsider and g ra n t a sy lum; ( 2) substantial e vidence does not support the I J ’s initial denial of r elief from removal; (3) the B I A abused its discretion in deny ing the motion t o r eopen; a nd (4) we should remand to the B I A for it to decide whether to g rant humanitarian asy lum. B ecause we ag ree that the I J h ad jurisdiction to reconsider and g rant asy lum, we need not consider B ermudez -Ariz a’s remaining arg uments.

I I

I n g eneral, an I J may “upon h is or her own motion a t any time

. . . reopen o r reconsider any case in which h e or she has made a decision, unless jurisdiction is vested with the B oard

o f I m m ig ration Appeals.” 8 C.F .R. § 1003.23(b)(1). T h e question h ere is whether the B I A r etained jurisdiction when remanding t o the I J “for further consideration o f the respondent’s claim u n der the Convention A g ainst Torture.” W e review this question of law d e novo. See De Martinez v

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

The B I A has itself e x plained the c ircum s t ances under which it retains jurisdict i o n w h en remanding to an I J

. I n Patel
, an I J found two respondent aliens deportable, and the B I A affirmed. 16 I

. & N

. D ec. at 601. The respondents thenB E R M U D E Z -A R

I Z A V

. S E S S I O N S 7

moved the B I A to reopen. I d. at 600–01. The B I A d enied the

m o tion as to the male respondent, but g ranted it a s to t h e f e m ale respondent and remanded her case to the I J

. Id. at 601. W hile the female respondent’s case was p ending before the I J
, both respondents o nce ag ain moved the B I A to r eopen proceeding s. Id. at 600. The B I A denied the motion as to the male respondent but held that it lack e d jurisdiction to adjudicate the motion as to the female respondent:

[ W ] hen the B oard remands a case t o an immig ration judg e for further proceeding s, it divests itself of

jurisdiction of that case unless jurisdiction is e x p r essly retained. F urther,

w h en this is done, unless the B oard qualif i e s

or l i m its the remand for a specific purpose, the r emand is effective for the stated purpose and for consi d eration of any a nd all matters which the Service officer d eems appropriate in the ex ercise of his administrative discretion

or w hich are broug ht t o h i s attention in compliance with the appropriate reg ulations.

Id. at 601; see also In Re M-D-
, 24 I

. & N. Dec. 138, 141–42 (B I A 2007) (reaffirming Patel and h olding that t h e I J reacquired jurisdiction on remand).

I n Johnson v. Ashcroft
, the T h i r d Circuit relied on the B I A’s decision in Patel to address a situation s t r i k i ng ly similar to the instant case. 286 F .3d 696 (3d Cir. 2 0 02). The B I A had affirmed denial of J immy J ohnson’s a pplication for asy lum a nd withholding of removal. Id. at 698. J ohnson then

m o ved the B I A to reopen for consideration of relief u n d e r CAT. Id. The B I A g ranted his motion and remanded to the I J “for consideration of the respondent’s claim pursuant toB E R M U D E Z -A R

I Z A V

. S E S S I O N S 8

[ C A T] r eg ulations.” Id. at 699. On remand, the I J denie d CAT relief but g ranted asy lum a nd w ithholding of removal. Id. The B I A
, however, vacated the g rant of asy lum a nd wi t h h o l ding on the g round that the I J lacked jurisdiction to consider those forms of relief. Id.

The Third Circuit g ranted J ohnson’s petition for review, holding that the B I A a cted arbitrarily in departing f rom Patel

. According to the Third Circuit, Patel required that the B I A do “two thing s” i n i t s r e mand order to retain jurisdiction: (1) “ex pressly

retain jurisdiction,” and (2) “limit the remand
to a specific p urpose.” Id. a t 701. The Third Circuit held that the B I A did neither of those thi n g s in J ohnson’s case a nd therefore v acated the B I A’s decision and remanded for further proceeding s. I

d

. at 7 05; see also Linares-Urrutia v

. Sessions
, 850 F .3d 477, 482 (2d Cir. 2017) (“The g overnment is correct that the initial B I A order set forth a purpose for the remand; bu t t he order did not ex pressly limit the I J ’s ability
t o revisit other issues. I n the absence of any such l i m i t i n g lang uag e or other indicia, the scope of a remand is g e neral.” (citing Patel
, 161 I

. & N. Dec. at 601, and Johnson
, 286 F .3d at 703)).

W e cited Johnson w ith approval in F ernandes v. H

older
, 619 F .3d 1069, 1074 (9th Cir. 2010). There, an I J denied J acinto Pascoul F erna ndes’s application for asy lum. Id. at 1071. The B I A r eversed, holding that F ernandes h ad proven past persecution, and remanding for the I J to decide whether the r esulting presumption of future persecution was rebutted. I d

. a t 1072. On remand, the g overnment filed a m o t i o n t o reopen in lig ht o f new e v idence that F ernandes h ad knowing ly filed his asy lum application throug h a n individual who routinely fil e d f

r audulent applications. I

d. at 1072–73. The I J g ranted the motion and found that F ernandes’s asy lumB E R M U D E Z -A R

I Z A V

. S E S S I O N S 9

application was frivolous. I d. at 1 0 7 3

. T h e B I A affirmed, holding that the I J had properly considered the g overnment’s motion. Id.

F ernandes petitioned our court for review, and we denied the petition. Id. at 1 0 7 6

. Rely ing on the B I A’s decision in Patel and the Third Circuit’s decision in Johnson
, w e h e ld that “the I J ’s jurisdiction on remand from the B I A is limited only when the B I A ex pressly retains jurisdiction and qualifies

or limits the scope o f the remand to a specific purpose.” Id.
at 1 074. B ecause the B I A’s “ remand order did n o t l i m i t o r qualify the I J ’s ability to consider n ew evidence or motions” but “simply d irected the I J to conduct furthe r proceeding s ‘consistent with’ the B oard’s opinion,” we concluded that the I J had properly c o nsidered the g overnment’s motion to reopen on remand. Id.

W h ereas th e government in Fernandes arg ued that the
scope of remand from the B I A was g enera l
, h e re the shoe is

on the other f

oot, and the g overnment n o w arg ues that the
scope of remand from the B I A w as limited. The g overnment, however, must play by the same r ules. W hether i t i s t he g overnment or the petitioner w ho has an interest in the I J ’s jurisdiction on remand, the B I A must follow the procedure it outlined in Patel

. Unless and until it overrules Patel
, the B I A only r etains jurisdiction w hen remanding to an I J if its remand order ex pressly retains jurisdiction and qualifies o r limits the scope of r emand to a specific purpose. S e e P a t e l
, 16 I . & N. Dec. at 601.

W e think it likely that the B I A limited t h e s cope o f remand to a specific purpose in this case by stating that it was remanding “for further co n sideration of the respondent’s claim under the Convention Ag ainst Torture.” That said, theB E R M U D E Z -A R

I Z A V

. S E S S I O N S 10

B I A’s r e mand order nowhere mentioned jurisdiction, much less ex pressly retained it. T h u s , irrespective of whether the B I A qualified or limited the scope of remand, t h e I J h ad jurisdiction to reconsider his earlier decisions u nder 8 C.F .R. § 1003.23. I ndeed, this result is consistent with our policy o f “encourag [ ing ] remand on an open record” to “allow[ ] prior decision-makers to c u re a n error.” Pa d i l la-Martinez v

. Holder , 770 F

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

I I I

I n sum, the B I A did not ex pressly retain jurisdiction when it remanded to th e I J
, and therefore the scope of its remand

was g eneral under Patel

. As s uch, the I J had jurisdiction to reconsider and g rant B ermudez -Ariz a’s application for asy lum. The petition for review is G RANTED and the case remanded to the B I A for it to address the I J ’s g rant of asy lum on its merits and for any

further proceeding s consistent with this opinion.