PUBLISH
UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ GABRIEL VILLEGAS-CASTRO, a/k/a Gabreil Villegas, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent.

__________________ ______________ PROFESSOR JUAN E. MÉNDEZ; DISABILITY RIGHTS INTERNATIONAL, Amici Curiae. No. 20-9593

________________ _________________ PETITION FOR REVIEW OF AN ORDER FROM THE BOARD OF IMMIGRATION APPEALS

________________ _________________ Harry Larson, formerly of Quinn Emanuel Ur quhart & Sullivan, LLP, Chicago, Illinois (Andrew H. Sc hapiro, Quinn Emanuel Urquhart & Sullivan, LLP, Chicago, Illinois, and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Cent er, Chicago, Illino is, with him on the briefs), on behalf of the Petitioner. Rachel Browning, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C. (Brian Boynton, Acting Assistant Attorney General, and Keit h I. McManus, A ssistant Director, U.S. Department of Jus tice, with her on the brief), on behalf of the Respondent. FILED United States Court of Appeals Tenth Circuit 

### December 2, 2021 Christopher M. Wolpert Clerk of Court Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 12 Simon A. Steel, DENTONS US LLP, Washington, D.C., and Grace M. Dickson, DENTONS US LLP, Dallas, Texa s, filed a brief for Amici Curiae, on behalf of Petitioner.

________________ _________________ Before BACHARACH , KELLY , and CARSON , Circuit Judges.

________________ _________________ BACHARACH , Circuit Judge.

________________ _________________ Mr. Gabriel Villega s-Castro is a Mexican citizen who entered the United States without be ing admitted or parole d. The government sought removal, and Mr. Villegas-Castro requested asylum , cancellation of removal, withholding of removal, and protection under the Convention Against Torture. The Board of Immigration Appeals ordered removal and rejected all of Mr. Villegas-Castro’s requests. We address three issues. The scope of the immigration j udge’s authority when the Board
orders a remand. The first issue i nvolves the immigration judge’s authority when the Board of Immigration Appeals orders a remand. Mr. Villegas-Castro initially lost his bid for asylum but obtaine d cancellation of removal. The Board rema nded to the immigration judge to reconsider the cancellation of removal. On remand, Mr. Villeg as-Castro fi led a new asylum application and obtained reli ef. The government appealed and the Board reversed, concludi ng that the second applic ation was not new and Mr. Villegas-Castro hadn’t shown a change in circ umstances. We conclude that Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 23  the immigration judge proper ly considered the second application for asylum and

 the Board’s reasonin g doesn’t support its denial of asylum. The Board’s failure to apply th e clear-error standard to the immigration judge’s factual findings. The second issu e involves the Board’s standard when reviewing an immigrat ion judge’s findings on credibility. Under federal law, a noncitizen lo ses eligibility fo r asylum and withholding of removal when convicted of a particularly serious crime. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B),(ii); 8 C.F.R. § 1208.16(d)(2). Invok ing the bar for persons conv icted of a particularly serious crime, the governm ent argued that Mr. V illegas-Castro had lost eligibility when he was convicted of sexual ba ttery. To resolve this argument, the immigration judge

 considered the underlying fact s and the credib ility of Mr. Villegas-Castro’s account and

 found that the crime was no t particularly serious. The Board had to review this finding under the clear-error standard. But the Board jettisoned this standard, relying on its own disagreement with the immigration judge’s findings on credibility. We conclude that the Board erred in failing to a pply the clear-error standard. The immigration judge’ s discretion to recon sider eligibility for withholding of removal and deferral of removal under the Convention Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 34 Against Torture. The third issue involves Mr. Villegas-Castro’s applications for withholding of removal and deferral of removal under the Convention Against Tortur e. The immigration judge abated consideration of these applications. But the Board sua sponte rejected the applications, concluding that Mr. Villegas-Castro couldn’t obtain re lief because the immigration judge had ear lier deemed Mr. Villegas -Castro ineligible for withholding of removal under federal law and th e Convention Against Torture. But the immigr ation judge had discre tion to revisit these conclusions. Until the immigration judge entered a fi nal decision on removal, the Board had no basis to sua sponte deny withholding of removal or deferral of removal under th e Convention Against Torture.
1. Standard of Review We review the Board’s decision rather than the immigration judge’s. See Sidabutar v. Gonzales , 503 F.3d 1116, 1123 ( 10th Cir. 2007). In reviewing this deci sion, we apply the de novo stan dard to the Board’s legal determinations. Elzour v. Ashcroft , 378 F.3d 1143, 1150 (10th Cir. 2004). These legal determinatio ns include the Board’s application of its own precedents and the standard of review. See Kabba v. Mukasey , 530 F.3d 1239, 1245 (10th Cir. 2008); Galeano-Romero v. Barr , 968 F.3d 1176, 1184 (10th Cir. 2020).
2. The Board erroneously required a material change in circumstances after treating th e new asylum application as clarification of the ea rlier application. Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 45 Mr. Villegas-Castro file d two applications for asylum. This petition for judicial review stems from the second application. The immigration judge denied th e first application but granted cancellation of removal. The Board overturne d the grant of cancellation of removal and remanded to the immigr ation judge. On re mand Mr. VillegasCastro obtained permission to apply a second ti me for asylum, and the immigration judge grante d the second application. The Board overturned this grant of asylum , reasoning that

 the second application was simply a clarification of the first one and

 the immigration judge couldn’t revisit the first application. Mr. Villegas-Castro cha llenges this reasoning.
A. We have jurisdiction to revi ew the legal question of Mr. Villegas-Castro’s elig ibility for asylum. The government challenges our juri sdiction, arguing that the Board made only a discretionary determination of Mr. Villegas-Castro’s eligibility for asylum. We disagree. The Board has discretion when considering the sufficiency of a change in circumstances. So that determination would ordinarily fall outside our jurisd iction. 8 U.S.C. § 1158(a)(3). But we do have juri sdiction over questions of law. 8 U.S.C. § 1252(a)(2)(D). Given this jurisdicti on, we can review legal questions Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 56 arising from the Board’s determinat ion of ineligibility for asylum. See Diallo v. Gonzales , 447 F.3d 1274, 1281 (10th Cir. 2006). Mr. Villegas-Castro argues that the Board’s reas oning would not render Mr. Villegas-Castro ineligible for asylum. This argument addresses

 the correctness of the Board’s application of its precedent, see In re Patel , 16 I. & N. Dec. 600 (BIA 1978), and

 the applicability of statutory restrictions on successive applications for asylum, see 8 U.S.C. §§ 1158 (a)(2)(C)–(D). These inquiries invo lve legal questions. See Galeano-Romero v. Barr , 968 F.3d 1176, 1184 (10th Cir. 2020) (concluding that jurisdictio n existed over the legal question of whet her the Board had departed from its precedent); Guerrero-Lasprilla v. Barr , 140 S. Ct. 1062, 1068–70 (2020) (concluding that jurisdiction existed to consider th e application of a legal standard to established facts).
B. Under the Board’s reas oning, Mr. Villegas-Ca stro is eligible for asylum. The Board reasoned that Mr. Villeg as-Castro was just amending his original asylum applicatio n, not filing a second ap plication. This reasoning wouldn’t prevent the immigration judge from gran ting asylum. Generally, a noncitizen can file only one asylum application. 8 U.S.C. § 1158(a)(2)(C). If that application is denied, the nonc itizen can file a new asylum application on ly upon a material change in circumstances. 8 U.S. C. § 1158(a)(2)(D). Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 67 The immigration judge treated the second asylum ap plication as a new application and found a material change in circumstances. But the Board treated the second as ylum application as just a clarification of the first application. This treatment re lieved Mr. Villegas-Castro of the restrictions on a second asylum appl ication. So if the Board were right— treating the second asylum application as a clarification of the first one— Mr. Villegas-Castro would not have need ed to show a mate rial change in circumstances. The Board’ s reasoning thus preven ted rejection of the second asylum application on the ground that it was successive.
C. Under the Board’s precedents , the immigration judge had discretion to rec onsider Mr. Villegas -Castro’s amended application for asylum. The government argues that Mr. Vi llegas-Castro couldn’t amend the first application because his earlier administrative appeal hadn’t challenged the immigrati on judge’s denial of as ylum. We reject this argument because the Board had earlier remanded the pro ceedings to the immigration judge. When remanding, the Bo ard “divests itself of jurisdiction of that case;” and the remand is effective “for consideration of any and all matters” that the immigratio n judge deems appropriate. In re Patel , 16 I. & N. Dec. 600, 601 (BIA 1978) . The Board may retain jurisdiction or limit the remand to a particular purpo se, but must do so expressly. Id. ; see In re
M-D- , 24 I. & N. Dec. 138 , 141 (BIA 2007) (“[W]e have historically Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 78 treated a remand as effective for consid eration of all matters unless it is specifically limited to a stated purpose.”). The Board here stated that “[t]he record [w as] remanded to the Immigration Judge for furt her proceedings consiste nt with the foregoing opinion and for the entry of a new decision.” R. vol. 4, at 1221. Because the Board did not limit what the immigration judge could decide, the remand was general. Six circuits have stated in publis hed opinions that when the Board doesn’t expressly retain jurisdiction or limit the scope of its remand, the immigration judge can consider new issues. See Cano-Sadarriaga v. Holder , 729 F.3d 25, 28 (1st Cir. 2013) (c oncluding that the immigration judge could consider ne w applications following a Board’s remand for entry of a removal order and design ation of the country of removal);
Linares-Urrutia v. Sessions , 850 F.3d 477, 482 (2d Cir. 2017) (concluding that the immigration judge could address new issues when the Board stated the purpose of the remand bu t didn’t expressly limit di scretion to consider other issues); Johnson v. Ashcroft , 286 F.3d 696, 701–05 (3d Cir. 2002) (concluding that the Boar d’s remand order, which stated a particular purpose, did not limit th e immigration judge’s auth ority to consider other matters); Kouambo v. Barr , 943 F.3d 205, 213 (4th Cir. 2019) (concluding that the immigration j udge could address new i ssues when the Board relinquished jurisdiction); Estrada-Rodriguez v. Lynch , 825 F.3d 397, 403 Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 89 (8th Cir. 2016) (con cluding that the immigratio n judge could consider a new issue when the Board didn’t say an ything to prevent consideration of new issues on remand); Bermudez-Ariza v. Sessions , 893 F.3d 685, 686 (9th Cir. 2018) (stating that if the Board does n’t expressly retain jurisdiction or limit th e scope of the remand, th e immigration judge “may reconsider any of his or her prior decisions”). 1 We join these circuits for three reasons. First, the Board’s pub lished opinions serve as precedent in all proceedings involving the same issue. 8 C.F.R. § 3.1(g). As a result, the Board would need a principl ed reason to deviate from Patel

. Johnson , 286 F.3d at 700. Second, we are generall y reluctant to create a circuit split when a number of circuits have a dopted a particular position. See United States v. Thomas , 939 F.3d 1121, 1130 ( 10th Cir. 2019). For example, we have opted to follow six circuits after they ’d adopted similar interpretations of the Americans with Disabilities Act. Exby-Stolley v. Bd. of Cty. Comm’rs , 979 F.3d 784, 804–05, 810 (10t h Cir. 2020) (en banc).

1 Two other circuits have done the same in unpublished opinions. Mung v. Barr , 773 F. App’x 229, 229 (5th Cir. 2019) (unpublished) (concluding that the immigration judg e could consider new issues because the remand order di dn’t expressly li mit the matters to be addressed); Abdul v. Holder , 326 F. App’x 344, 347 (6 th Cir. 2009) (same). Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 910 Third, we’ve taken a similar appr oach when interp reting our own remands. For example, when we remand without limiting the scope of matters to be considered, we ordinarily allow the district court to “exercise discretion on what may be heard.” United States v. West , 646 F.3d 745, 749 (10th Cir. 2011). For these three reasons, we follow the approach of the six other circuits, recognizing discretion of the immigration judge to address new matters when the Board re mands without retaining jurisdiction or limiting the matters to be addressed. When reversing the immigration j udge’s grant of cancellation of removal, the Board neither retained ju risdiction nor limited the matters to be addressed on remand. Instead, the Board instructed the immigration judge to (1) recons ider whether Mr. Villegas-Ca stro had shown good moral character for cancellati on of removal and (2) allow introduction of additional evidence. These instructions did not expr essly limit the scope of the remand, so the immigration judge could also reconsider Mr. VillegasCastro’s application for asylum.
* * * The Board concluded that the im migration judge had “erred in considering the application anew.” R. vo l. 1, at 25. But this reasoning did not support the Boar d’s conclusion. Th e Board reasoned that Mr. VillegasCastro had just clarified his original asylum application and hadn’t filed a Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 1011 new one. But if he hadn’t filed a new application, he woul dn’t have needed to show a material cha nge in circumstances. See In re M-A-F- , 26 I. & N. Dec. 651, 654–55 (B IA 2015) (distingu ishing between a “new” asylum application and “supplement ” or “amendment” of th e initial application). As a result, the Board’s reasonin g didn’t undermine the immigration judge’s decision to grant asylum. 2
3. The Board also erred by failing to apply the clear-error standard to the immigratio n judge’s findings on credibility. On remand, the immigration judg e reconsidered Mr. VillegasCastro’s eligibility for both asylum an d withholding of re moval. When the immigration judge reconsidered eligib ility, the government pointed out that Mr. Villegas-Castro had been convicte d of sexual battery. If sexual battery were considered a particularly seri ous crime, Mr. Villegas-Castro would lose eligibility for asylum and withholding of removal. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C. F.R. § 1208.16(d)(2). To determine whether a conviction involves a partic ularly serious crime, the immigration judge consider s whether the crime constitutes an aggravated felony resulting in a se ntence of at l east five years. In re N-A-M- , 24 I. & N. Dec. 336, 341–42 (B.I.A. 2007), pet. for judicial

2 Mr. Villegas-Castro ar gues in the alternative that (1) the Board erred in failing to find a material change in circum stances and (2) the existence of extraordinary circumstances would avoid the restriction on successive asylum applications. We need not address thes e arguments. Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 1112 review denied , 587 F.3d 1052 (10th Cir. 2009 ). If the crime doesn’t constitute an aggravated felony or yi eld a sentence of five years or more, the immigration judge would consider whether the elements bring the crime within the realm of pa rticular seriousness. Id. If the crime falls within this realm, the immigration judge would consider th e facts underlying the conviction to de termine whether th e crime is particularly serious. Id. The government didn’t ch aracterize sexual batter y as an aggravated felony, and Mr. Villegas-Ca stro didn’t deny that the elements would bring the crime within the realm of particul ar seriousness. So the immigration judge had to exam ine the actual facts underlying the conviction to determine whether Mr. Villegas-Castro’s sexual battery was particularly serious. In examining the facts, the immigration judge addressed tw o pieces of evidence to make this determin ation: (1) Mr. Villegas-Castro’s testimony about the events underlying the conviction and (2) an affidavit of probable cause prepar ed by the police. Base d on these pieces of evidence, the immigrat ion judge found that

 Mr. Villegas-Castro was credible when he testified that the encounter had been consensual and

 the probable-cause affidavit was less pe rsuasive than Mr. Villegas-Castro’s account. Based on these credibility findings, the immigration judge decided that the crime was not particular ly serious. The Board “disagreed” with the Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 1213 immigration judge’s findin gs on credibility . R. vol. 1, at 26. Unlike the immigration judge, the Boar d regarded Mr. V illegas-Castro as less credible than the account in the affidavit of probable cause. Id. Credibility involves a classic issue of fact. Diallo v. Gonzales , 447 F.3d 1274, 1283 (10th Cir. 2006); 8 C.F.R. § 1003.1(d )(3)(i). So the Board properly recogniz ed that it had to evaluate the immigration judge’s credibility findings under th e clear-error standard. See 8 C.F.R. § 1003.1(d)(3)(i) (“Facts de termined by th e immigration judge, including findings as to th e credibility of testimony, sh all be review ed only to determine whether the fi ndings of the immigra tion judge are clearly erroneous.”). “[W]here an [immigrati on judge] makes fa ctual credibility determinations which the [Board] in tu rn rejects,” “we mu st consider de novo whether the [B oard], in making its own factual findings, actually reviewed the [immigrati on judge’s] decision on ly for clear error.” Kabba v. Mukasey , 530 F.3d 1239, 1245 (10th Cir. 2008). Conducting de novo review , we conclude that th e Board did not apply the clear-error standard. The Board never sa id that the immigration judge had clearly erred in finding Mr. Vill egas-Castro credible ; the Board said only that it disagreed with the immigration judge’s finding. In its brief, the government denies that the Board ba sed its decision on a factual assessment of Mr. Villegas-Castro’s credibility, arguing instead that the Board “determined that the Petitioner’s testimony was Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 1314 ‘significantly less probative and persuasive ’ than the information contained in the probable cause affidav it.” Appellee’s Resp. Br. at 41 (emphasis in original). But the government’s char acterization still falls within the domain of “credibility,” wh ich refers to an evaluation of someone’s believability. See Credibility , Black’s Law Dict ionary (9th ed. 2009). So the Board erred in “rewei ghing” the ev idence rath er than applying the clear-error standard. Kabba , 530 F.3d at 1246; see Ting Xue v. Lynch , 846 F.3d 1099, 1106 (10t h Cir. 2017) (“The fail ure of the [Board] to apply the correct standard of review on appeal from th e decision of an [immigration judge] is, its elf, a legal error.”). 3
4. The Board erred in sua sponte rejecting Mr. Villegas-Castro’s applications for withholding of removal and deferral of removal under the Convention Against Torture. At the first hearing, the immigr ation judge deni ed Mr. VillegasCastro’s applications for (1) withho lding of removal and (2) deferral of removal under the C onvention Against Torture. After the Board remanded

3 Mr. Villegas-Castr o also argues that

 his sexual battery would not constitute a particularly serious crime because it was a misdemeanor and

 the immigration judge’s credibil ity assessment was not clearly erroneous. Consideration of these ar guments should take pl ace only afte r the Board applies the clear-error standa rd in the fi rst instance. Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 1415 the case to the immigra tion judge, Mr. Villegas- Castro renewed these applications. Each was abated. The government appealed only the grant of asylum and requested remand of the abated ap plications. Though neithe r party addressed the merits of these applications, the Board decided sua sponte that Mr. Villegas-Castro was ineligible for wi thholding of removal and deferral of removal under the Conven tion Against Torture. The Board rejected the applications for withholding of removal under federal law and the Conv ention Against Torture, reasoning that Mr. Villegas-Castro had been convicted of a particular ly serious crime. The Board acknowledged that so meone convicted of a particularly serious crime could still seek deferral of removal under the Convention Against
Torture. But the Board concluded that the i mmigration judge’s first decision had barred deferral of removal under the C onvention. From the immigration judge’s first decision, the Board drew two implications. First, the Board concluded that the firs t decision had prevented fresh consideration of whether to wit hhold removal. Se cond, the Board concluded that Mr. Villegas-Castro couldn’t seek deferral of removal because

 the same standard governs wit hholding and deferral of removal under the Conv ention Against Torture and Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 1516  the immigration judge had already denied withholding of removal under th at standard. 4 The Board’s reasoning st emmed from a mistaken assumption that its earlier remand had prevented further co nsideration of the applications for withholding of remova l under federal law or the Convention Against Torture. But the Bo ard didn’t retain ju risdiction or limit the scope of its earlier remand. See Part 2(C), above. The immi gration judge was thus free to revisit the applicati on for withholding of removal, and he did. Because the scope of th e remand was not limited to reconsideration of the application for withholding of removal, the immigration judge could also revisit his earlier decision disa llowing deferral of removal under the Convention Ag ainst Torture. 5 As a result, the Boar d erred in concluding that Mr. Villegas-Castro

 would need to justify a second application for withholding of removal and

4 The Board also reasoned in part that Mr. Villegas-Castro couldn’t pursue a successive ap plication for withholdi ng of removal under the Convention Against Tortur e. The parties disagree ov er a noncitizen’s right to pursue successive ap plications for withhold ing of removal under the Convention. But this di sagreement is academic because Mr. VillegasCastro didn’t file a sec ond application for withholding of removal. He filed only one, and the immigrat ion judge was free to re visit this application when the Board entered a general rema nd without retaining jurisdiction. See Part 2(C), above.

5 The government points out that restrictions exist on reopening of decisions that have alre ady become final. Appell ee’s Resp. Br. at 46. But the Board’s remand prevented consideration of the immigration judge’s first decision as final. See Part 2(C), above. Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 1617  couldn’t obtain fresh consideration of his application for deferral of removal under the Convention Against Torture.
* * * We conclude that the Board erred in three ways. First, the Board erred in overturn ing the grant of asylum. The Board decided that Mr. V illegas-Castro had not filed a new application. But if he hadn’t filed a new asylum application, he wouldn’t need to show a material change in circumstance s. And with the remand, the immigration judge enjoyed discretion to reconsider the ava ilability of asylum. Second, the Board erred in rej ecting the immigration judge’s credibility findings wit hout applying the clear-e rror standard. The immigration judge conclude d that Mr. Villegas-Castr o’s conviction had not involved a particularly se rious crime. For this conclusion, the immigration judge considered the unde rlying facts and found Mr. Villegas-Castro’s account credible. The Bo ard disagreed with th e immigration judge’s credibility findings but didn’ t apply the clear-error st andard. By failing to apply that standard, the Board erred. Third, the Board erred in sua sponte decidi ng that Mr. VillegasCastro was ineligible for (1) withho lding of removal or (2) deferral of removal under the Conven tion Against Torture. The Board reasoned that the immigration judge had already de nied withholding of removal under federal law and the Conv ention. But the Board’s general remand didn’t Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 1718 prevent fresh consideration of Mr. Vi llegas-Castro’s earlier applications. So the Board erred in sua sponte rejecting the app lications for withholding of removal and deferral of removal und er the Convention Against Torture. We thus grant the petition for judicial review, remanding for the Board to reconsider Mr. Villegas-Castro’s application for asylum, to apply the clear-error standard to the immigr ation judge’s credib ility findings, and to reconsider the applicat ions for withholding of removal and deferral of removal under the Convention Agai nst Torture. Appellate Case: 20-9593 Document: 010110613320 Date Filed: 12/02/2021 Page: 18