PUBLISH 

UNITED STATES COURT 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 Urquhart & Sullivan, LLP, 

Chicago, Illinois (Andrew H. Schapiro, Quinn Emanuel Urquhart & 

Sullivan, LLP, Chicago, Illinois, and Keren Zwick and Tania Linares 

Garcia, National Immigrant Justice Center, Chicago, Illinois, 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 Keith I. McManus, Assistant Director, 

U.S. Department of Justice, 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

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Simon A. Steel, DENTONS US LLP, Washington, D.C., and Grace M. 

Dickson, DENTONS US LLP, Dallas, Texas, filed a brief for Amici Curiae, 

on behalf of Petitioner. 

_________________________________ 

Before BACHARACH, KELLY, and CARSON, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

Mr. Gabriel Villegas-Castro is a Mexican citizen who entered the 

United States without being admitted or paroled. 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 judge’s authority when the Board 

orders a remand. The first issue involves the immigration judge’s 

authority when the Board of Immigration Appeals orders a remand. Mr. 

Villegas-Castro initially lost his bid for asylum but obtained cancellation 

of removal. The Board remanded to the immigration judge to reconsider the 

cancellation of removal. On remand, Mr. Villegas-Castro filed a new 

asylum application and obtained relief. The government appealed and the 

Board reversed, concluding that the second application was not new and 

Mr. Villegas-Castro hadn’t shown a change in circumstances. We conclude 

that 

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 the immigration judge properly considered the second 

application for asylum and 

 the Board’s reasoning doesn’t support its denial of asylum. 

The Board’s failure to apply the clear-error standard to the 

immigration judge’s factual findings. The second issue involves the 

Board’s standard when reviewing an immigration judge’s findings on 

credibility. 

Under federal law, a noncitizen loses eligibility for 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). Invoking the bar for persons convicted of a particularly 

serious crime, the government argued that Mr. Villegas-Castro had lost 

eligibility when he was convicted of sexual battery. To resolve this 

argument, the immigration judge 

 considered the underlying facts and the credibility of Mr. 

Villegas-Castro’s account and 

 found that the crime was not 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 apply the clear-error standard. 

The immigration judge’s discretion to reconsider eligibility for 

withholding of removal and deferral of removal under the Convention 

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Against Torture. The third issue involves Mr. Villegas-Castro’s 

applications for withholding of removal and deferral of removal under the 

Convention Against Torture. The immigration judge abated consideration 

of these applications. But the Board sua sponte rejected the applications, 

concluding that Mr. Villegas-Castro couldn’t obtain relief because the 

immigration judge had earlier deemed Mr. Villegas-Castro ineligible for 

withholding of removal under federal law and the Convention Against 

Torture. But the immigration judge had discretion to revisit these 

conclusions. Until the immigration judge entered a final decision on 

removal, the Board had no basis to sua sponte deny withholding of removal 

or deferral of removal under the 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 decision, we apply the de novo standard to the Board’s legal 

determinations. Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). 

These legal determinations 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 the new asylum application as 

clarification of the earlier application. 

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Mr. Villegas-Castro filed two applications for asylum. This petition 

for judicial review stems from the second application. 

The immigration judge denied the first application but granted 

cancellation of removal. The Board overturned the grant of cancellation of 

removal and remanded to the immigration judge. On remand Mr. VillegasCastro obtained permission to apply a second time for asylum, and the 

immigration judge granted 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 challenges this reasoning. 

A. We have jurisdiction to review the legal question of Mr. 

Villegas-Castro’s eligibility for asylum. 

The government challenges our jurisdiction, 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 jurisdiction. 8 U.S.C. § 1158(a)(3). 

But we do have jurisdiction over questions of law. 8 U.S.C. 

§ 1252(a)(2)(D). Given this jurisdiction, we can review legal questions 

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arising from the Board’s determination of ineligibility for asylum. See 

Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006). 

Mr. Villegas-Castro argues that the Board’s reasoning 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 involve legal questions. See Galeano-Romero v. Barr, 968 

F.3d 1176, 1184 (10th Cir. 2020) (concluding that jurisdiction existed over 

the legal question of whether the Board had departed from its precedent); 

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068–70 (2020) (concluding 

that jurisdiction existed to consider the application of a legal standard to 

established facts). 

B. Under the Board’s reasoning, Mr. Villegas-Castro is eligible 

for asylum. 

The Board reasoned that Mr. Villegas-Castro was just amending his 

original asylum application, not filing a second application. This reasoning 

wouldn’t prevent the immigration judge from granting asylum. 

Generally, a noncitizen can file only one asylum application. 

8 U.S.C. § 1158(a)(2)(C). If that application is denied, the noncitizen can 

file a new asylum application only upon a material change in 

circumstances. 8 U.S.C. § 1158(a)(2)(D). 

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The immigration judge treated the second asylum application as a 

new application and found a material change in circumstances. But the 

Board treated the second asylum application as just a clarification of the 

first application. This treatment relieved Mr. Villegas-Castro of the 

restrictions on a second asylum application. So if the Board were right—

treating the second asylum application as a clarification of the first one—

Mr. Villegas-Castro would not have needed to show a material change in 

circumstances. The Board’s reasoning thus prevented 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 reconsider Mr. Villegas-Castro’s amended 

application for asylum. 

The government argues that Mr. Villegas-Castro couldn’t amend the 

first application because his earlier administrative appeal hadn’t 

challenged the immigration judge’s denial of asylum. We reject this 

argument because the Board had earlier remanded the proceedings to the 

immigration judge. 

When remanding, the Board “divests itself of jurisdiction of that 

case;” and the remand is effective “for consideration of any and all 

matters” that the immigration 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 purpose, but must do so expressly. Id.; see In re 

M-D-, 24 I. & N. Dec. 138, 141 (BIA 2007) (“[W]e have historically 

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treated a remand as effective for consideration of all matters unless it is 

specifically limited to a stated purpose.”). 

The Board here stated that “[t]he record [was] remanded to the 

Immigration Judge for further proceedings consistent 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 published 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) (concluding that the immigration 

judge could consider new applications following a Board’s remand for 

entry of a removal order and designation 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 but didn’t expressly limit discretion to consider 

other issues); Johnson v. Ashcroft, 286 F.3d 696, 701–05 (3d Cir. 2002) 

(concluding that the Board’s remand order, which stated a particular 

purpose, did not limit the immigration judge’s authority to consider other 

matters); Kouambo v. Barr, 943 F.3d 205, 213 (4th Cir. 2019) (concluding 

that the immigration judge could address new issues when the Board 

relinquished jurisdiction); Estrada-Rodriguez v. Lynch, 825 F.3d 397, 403 

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(8th Cir. 2016) (concluding that the immigration judge could consider a 

new issue when the Board didn’t say anything 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 doesn’t expressly retain 

jurisdiction or limit the scope of the remand, the immigration judge “may 

reconsider any of his or her prior decisions”).1

 We join these circuits for 

three reasons. 

First, the Board’s published 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 principled reason to deviate from Patel. Johnson, 286 

F.3d at 700. 

Second, we are generally reluctant to create a circuit split when a 

number of circuits have adopted 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 (10th 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 judge could consider new issues because 

the remand order didn’t expressly limit the matters to be addressed); Abdul 

v. Holder, 326 F. App’x 344, 347 (6th Cir. 2009) (same). 

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Third, we’ve taken a similar approach when interpreting 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 remands without retaining jurisdiction or limiting 

the matters to be addressed. 

When reversing the immigration judge’s grant of cancellation of 

removal, the Board neither retained jurisdiction nor limited the matters to 

be addressed on remand. Instead, the Board instructed the immigration 

judge to (1) reconsider whether Mr. Villegas-Castro had shown good moral 

character for cancellation of removal and (2) allow introduction of 

additional evidence. These instructions did not expressly limit the scope of 

the remand, so the immigration judge could also reconsider Mr. VillegasCastro’s application for asylum. 

* * * 

The Board concluded that the immigration judge had “erred in 

considering the application anew.” R. vol. 1, at 25. But this reasoning did 

not support the Board’s conclusion. The Board reasoned that Mr. VillegasCastro had just clarified his original asylum application and hadn’t filed a 

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new one. But if he hadn’t filed a new application, he wouldn’t have needed 

to show a material change in circumstances. See In re M-A-F-, 26 I. & N. 

Dec. 651, 654–55 (BIA 2015) (distinguishing between a “new” asylum 

application and “supplement” or “amendment” of the initial application).

As a result, the Board’s reasoning 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 immigration judge’s findings on credibility. 

On remand, the immigration judge reconsidered Mr. VillegasCastro’s eligibility for both asylum and withholding of removal. When the 

immigration judge reconsidered eligibility, the government pointed out that 

Mr. Villegas-Castro had been convicted of sexual battery. If sexual battery 

were considered a particularly serious 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 particularly serious 

crime, the immigration judge considers whether the crime constitutes an 

aggravated felony resulting in a sentence of at least 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 argues in the alternative that (1) the Board erred 

in failing to find a material change in circumstances and (2) the existence 

of extraordinary circumstances would avoid the restriction on successive 

asylum applications. We need not address these arguments. 

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review denied, 587 F.3d 1052 (10th Cir. 2009). If the crime doesn’t 

constitute an aggravated felony or yield a sentence of five years or more, 

the immigration judge would consider whether the elements bring the crime 

within the realm of particular seriousness. Id. If the crime falls within this 

realm, the immigration judge would consider the facts underlying the 

conviction to determine whether the crime is particularly serious. Id. 

The government didn’t characterize sexual battery as an aggravated 

felony, and Mr. Villegas-Castro didn’t deny that the elements would bring 

the crime within the realm of particular seriousness. So the immigration 

judge had to examine 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 two pieces 

of evidence to make this determination: (1) Mr. Villegas-Castro’s 

testimony about the events underlying the conviction and (2) an affidavit 

of probable cause prepared by the police. Based on these pieces of 

evidence, the immigration judge found that 

 Mr. Villegas-Castro was credible when he testified that the 

encounter had been consensual and 

 the probable-cause affidavit was less persuasive than Mr. 

Villegas-Castro’s account. 

Based on these credibility findings, the immigration judge decided that the 

crime was not particularly serious. The Board “disagreed” with the 

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immigration judge’s findings on credibility. R. vol. 1, at 26. Unlike the 

immigration judge, the Board regarded Mr. Villegas-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 recognized that it had to evaluate the immigration judge’s 

credibility findings under the clear-error standard. See 8 C.F.R. 

§ 1003.1(d)(3)(i) (“Facts determined by the immigration judge, including 

findings as to the credibility of testimony, shall be reviewed only to 

determine whether the findings of the immigration judge are clearly 

erroneous.”). “[W]here an [immigration judge] makes factual credibility 

determinations which the [Board] in turn rejects,” “we must consider de 

novo whether the [Board], in making its own factual findings, actually 

reviewed the [immigration judge’s] decision only for clear error.” Kabba v. 

Mukasey, 530 F.3d 1239, 1245 (10th Cir. 2008). 

Conducting de novo review, we conclude that the Board did not apply 

the clear-error standard. The Board never said that the immigration judge 

had clearly erred in finding Mr. Villegas-Castro credible; the Board said 

only that it disagreed with the immigration judge’s finding. 

In its brief, the government denies that the Board based its decision 

on a factual assessment of Mr. Villegas-Castro’s credibility, arguing 

instead that the Board “determined that the Petitioner’s testimony was 

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‘significantly less probative and persuasive’ than the information 

contained in the probable cause affidavit.” Appellee’s Resp. Br. at 41 

(emphasis in original). But the government’s characterization still falls 

within the domain of “credibility,” which refers to an evaluation of 

someone’s believability. See Credibility, Black’s Law Dictionary (9th ed. 

2009). So the Board erred in “reweighing” the evidence rather than 

applying the clear-error standard. Kabba, 530 F.3d at 1246; see Ting Xue v. 

Lynch, 846 F.3d 1099, 1106 (10th Cir. 2017) (“The failure of the [Board] 

to apply the correct standard of review on appeal from the decision of an 

[immigration judge] is, itself, 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 immigration judge denied Mr. VillegasCastro’s applications for (1) withholding of removal and (2) deferral of 

removal under the Convention Against Torture. After the Board remanded 

3

 Mr. Villegas-Castro also argues that 

 his sexual battery would not constitute a particularly serious 

crime because it was a misdemeanor and 

 the immigration judge’s credibility assessment was not clearly 

erroneous. 

Consideration of these arguments should take place only after the Board 

applies the clear-error standard in the first instance. 

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the case to the immigration judge, Mr. Villegas-Castro renewed these 

applications. Each was abated. 

The government appealed only the grant of asylum and requested 

remand of the abated applications. Though neither party addressed the 

merits of these applications, the Board decided sua sponte that Mr. 

Villegas-Castro was ineligible for withholding of removal and deferral of 

removal under the Convention Against Torture. 

The Board rejected the applications for withholding of removal under 

federal law and the Convention Against Torture, reasoning that Mr. 

Villegas-Castro had been convicted of a particularly serious crime. The 

Board acknowledged that someone convicted of a particularly serious 

crime could still seek deferral of removal under the Convention Against 

Torture. 

But the Board concluded that the immigration judge’s first decision 

had barred deferral of removal under the Convention. From the 

immigration judge’s first decision, the Board drew two implications. First, 

the Board concluded that the first decision had prevented fresh 

consideration of whether to withhold removal. Second, the Board 

concluded that Mr. Villegas-Castro couldn’t seek deferral of removal 

because 

 the same standard governs withholding and deferral of removal 

under the Convention Against Torture and 

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 the immigration judge had already denied withholding of 

removal under that standard.4 

The Board’s reasoning stemmed from a mistaken assumption that its 

earlier remand had prevented further consideration of the applications for 

withholding of removal under federal law or the Convention Against 

Torture. But the Board didn’t retain jurisdiction or limit the scope of its 

earlier remand. See Part 2(C), above. The immigration judge was thus free 

to revisit the application for withholding of removal, and he did. 

Because the scope of the remand was not limited to reconsideration 

of the application for withholding of removal, the immigration judge could 

also revisit his earlier decision disallowing deferral of removal under the 

Convention Against Torture.5

 As a result, the Board 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 application for withholding of removal under the 

Convention Against Torture. The parties disagree over a noncitizen’s right 

to pursue successive applications for withholding of removal under the 

Convention. But this disagreement is academic because Mr. VillegasCastro didn’t file a second application for withholding of removal. He filed 

only one, and the immigration judge was free to revisit this application 

when the Board entered a general remand without retaining jurisdiction. 

See Part 2(C), above. 

5

 The government points out that restrictions exist on reopening of 

decisions that have already become final. Appellee’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.

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 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 overturning the grant of asylum. The Board 

decided that Mr. Villegas-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 circumstances. And with the remand, the immigration judge 

enjoyed discretion to reconsider the availability of asylum. 

Second, the Board erred in rejecting the immigration judge’s 

credibility findings without applying the clear-error standard. The 

immigration judge concluded that Mr. Villegas-Castro’s conviction had not 

involved a particularly serious crime. For this conclusion, the immigration 

judge considered the underlying facts and found Mr. Villegas-Castro’s 

account credible. The Board disagreed with the immigration judge’s 

credibility findings but didn’t apply the clear-error standard. By failing to 

apply that standard, the Board erred. 

Third, the Board erred in sua sponte deciding that Mr. VillegasCastro was ineligible for (1) withholding of removal or (2) deferral of 

removal under the Convention Against Torture. The Board reasoned that 

the immigration judge had already denied withholding of removal under 

federal law and the Convention. But the Board’s general remand didn’t 

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prevent fresh consideration of Mr. Villegas-Castro’s earlier applications. 

So the Board erred in sua sponte rejecting the applications for withholding 

of removal and deferral of removal under 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 immigration judge’s credibility findings, and 

to reconsider the applications for withholding of removal and deferral of 

removal under the Convention Against Torture. 

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