2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-16-2002

Jimmy Johnson v. Atty Gen USA

Precedential or Non-Precedential:

Docket No. 01-1331

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Jimmy Johnson v. Atty Gen USA" (2002). 2002 Decisions. Paper 280.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/280
PRECEDENTIAL 

 Filed April 16, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 01-1331 

JIMMY JOHNSON, 

 Petitioner 

v. 

JOHN ASHCROFT, Attorney General 

of the United States 

On Petition for Review of an Order 

of the Board of Immigration Appeals 

(No. A73 149 183) 

Argued November 7, 2001 

Before: BECKER, Chief Judge, and McKEE 

and RENDELL, Circuit Judges 

(Filed April 16, 2002) 

 Visuvanthan Rudrakumaran 

 [ARGUED] 

 Suite 2309 

 875 Avenue of the Americas 

 New York, NY 10001 

 Counsel for Petitioner 

 Jimmy Johnson 

 

 William C. Minick [ARGUED] 

 Michael P. Lindemann 

 Christopher C. Fuller 

 Alison M. Igoe 

 Office of Immigration Litigation 

 Civil Division, Department of Justice 

 P. O. Box 878 

 Ben Franklin Station 

 Washington, DC 20044 

 Counsel for Respondent 

OPINION OF THE COURT 

RENDELL, Circuit Judge. 

Jimmy Johnson petitions for review of a Board of 

Immigration Appeals ("BIA" or "Board") order reversing a 

grant of asylum and withholding of deportation based on 

changed country conditions. 
The BIA held that the Immigration Judge did not have 

jurisdiction over these claims at the time he considered 

Johnson’s application for relief under the Convention 

Against Torture and Other Cruel, Inhuman or Degrading 

Treatment or Punishment ("CAT")1 because the case had 

been reopened and remanded for the "sole purpose" of 

considering the CAT claim. The question before us is 

whether on remand the Immigration Judge’s jurisdiction 

was limited to the CAT issue. For the reasons below, we 

conclude that, in deciding that it was limited, the Board 

departed without reasonable explanation from its own 

policy that it established in Matter of Patel , 16 I. & N. Dec. 

600 (BIA 1978). Accordingly, the Petition for Review will be 

granted and we will vacate the Board’s order and remand 

for further proceedings consistent with this opinion. 

_________________________________________________________________ 

1. G.A. Res. 39/46 (annex), U.N. GAOR, 39th Sess., Supp. No. 51, at 

197, U.N. Doc. A/39/51 (1984). 

 2 

 

I. 

When Johnson entered the United States from Liberia in 

1994 without a valid visa or travel documents, he was 

placed in exclusion proceedings and taken into custody by 

the Immigration and Naturalization Service ("INS"). His 

initial application for asylum under Immigration and 

Naturalization Act ("INA") S 208, 8 U.S.C. S 1158, and 

withholding of deportation under former INA S 243(h), 8 

U.S.C. S 1253(h) (1995), was denied and he was ordered 

excluded. The Board affirmed on appeal. 

Johnson then filed a motion with the Board to reopen 

and/or reconsider asylum and withholding of deportation in 

1996. In a published opinion, the Board denied the motion 

as untimely, holding that the motion to reconsider was 

more than 60 days late, that the motion to reopen was 2 

days late, and that a motion is "filed" when it is received 

rather than when an applicant in custody sends it. See In 

re J-J-, 21 I. & N. Dec. 976 (BIA 1997). The Board 

considered the exception to the timeliness requirements for 

motions to apply for asylum based on changed 

circumstances in the applicant’s country of nationality, see 

8 C.F.R. S 3.2(c)(3)(ii), but concluded that the exception did 

not apply because Johnson failed to provide material 

evidence of changed conditions that was unavailable at 

prior hearings. See In re J-J-, 21 I. & N. Dec. at 981-82. 

In 1999, Johnson filed a motion with the Board to reopen 

for consideration of relief under CAT, which the Board 

granted. The Board’s order provided that 

 [W]e . . . remand this matter to the Immigration Court 

 for consideration of the respondent’s claim pursuant to 
 [CAT] regulations. 

. . . 

 FURTHER ORDER: The record is remanded to the 

 Immigration Judge for further proceedings consistent 

 with the foregoing opinion and for the entry of a new 

 decision. 

The effect of this remand order is at issue here. 

While the case was on remand, Johnson made a written 

motion before the Immigration Judge urging the court"to 

 3 

 

consider the respondent’s eligibility for asylum in the 

proceedings based on changed country conditions." The 

Immigration Judge considered this motion as well as the 

motion to withhold deportation under CAT, ultimately 

granting both. 

In his decision, the Immigration Judge addressed 

whether his jurisdiction was limited to the CAT claim. While 

acknowledging that the Board and the Supreme Court have 

set a high standard for reopening immigration proceedings 

because of the interest in finality, see, e.g. , INS v. Abudu, 

485 U.S. 94, 107 (1988); In re A-G-, 19 I. & N. Dec. 502, 

503-04 (BIA 1987), he reasoned that the decision was no 

longer final once the case had been reopened, so that this 

interest was not implicated. Moreover, he made the point -- 

uncontested by the INS -- that if Johnson had become 

eligible for adjustment of status in the meantime, that 

matter could have been entertained by him on remand. 

This, he stated, supported his view that "issues besides 

that for which the Board specifically reopened the case" 

could be heard on remand. He found that application of 

this principle was particularly appropriate in these 

circumstances, where so much of the evidence of the CAT 

claim was relevant to the asylum claim as well. 

The INS appealed the Immigration Judge’s decision to the 

Board, which affirmed the grant of withholding relief under 

CAT, but vacated the grant of asylum and withholding of 

deportation. The Board did not address the merits of the 

asylum claim, but rather vacated on the ground that the 

Immigration Judge had lacked jurisdiction to consider the 

motion because the Board’s remand referred jurisdiction 

back to the Immigration Judge only as to the CAT motion. 

In its opinion, the Board began by citing the general rule 

that "a remand, unless the Board qualifies or limits it for a 

specific purpose, is effective for the stated purpose and for 

consideration of any and all matters which the Immigration 

Judge deems appropriate in the exercise of his 

administrative discretion or which are brought to his 

attention in compliance with the appropriate regulations." 

Citing Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978)) 

(Board’s emphasis). It then pointed out that the standards 
 4 

 

to reopen for relief under CAT are more easily satisfied than 

those to reopen for other purposes. 

Finally, the Board looked to the background regulations 

and the relief sought in Johnson’s motion to reopen for 

consideration under CAT, reasoning that both indicated 

that "the applicant’s motion was filed to pursue this limited 

form of relief and, thus, was granted and remanded to the 

Immigration Judge for the limited purpose of entertaining 

his application for relief pursuant to [CAT]." Specifically, the 

Board pointed to the regulation providing that an alien 

under final order of exclusion "may move to reopen 

proceedings for the sole purpose of seeking" withholding of 

removal under CAT. 8 C.F.R. S 208.18(b)(2). 2 For all of these 

reasons, it concluded that the Immigration Judge’s 

jurisdiction on remand was limited to the CAT claim. 

Johnson filed a timely appeal of the portion of the 

Board’s order vacating the Immigration Judge’s grant of 

asylum and withholding of deportation. 

II. 

We have jurisdiction under INA S 106, 8 U.S.C. 

S 1105a(a), as modified by the Illegal Immigration Reform 

and Immigrant Responsibility Act of 1996 ("IIRIRA").3 While 

we will often defer to agency interpretations in the 

immigration context, see Chevron, U.S.A., Inc. v. Natural 

Res. Def. Council, 467 U.S. 837 (1984); Abdille v. Ashcroft, 

242 F.3d 477, 484-85 (3d Cir. 2001) (citing INS v. AguirreAguirre, 526 U.S. 415, 424-25 (1999)), this case concerns 

the scope of jurisdiction of the Immigration Judge and the 

BIA as it has been interpreted in the BIA’s own precedent. 

The parties and the Board agree that it rests essentially on 

one decision -- Matter of Patel, 16 I. & N. Dec. 600 (BIA 

_________________________________________________________________ 

2. This provision applies only to aliens like Johnson who were "ordered 

removed, or whose removal orders became final, before March 22, 1999." 

8 C.F.R. S 208.18(b)(2). 

3. We note that we do not need to decide which rules apply because this 

matter was reviewable under the old rules, see INA S 106, and is not in 

any of the categories affected by the IIRIRA’s transitional or permanent 

rules, see IIRIRA S 309(c)(4); INAS 242, 8 U.S.C. S 1252. 

 5 

 

1978). Immigration regulations provide that Patel, because 

it is a published opinion, "shall serve as precedent[ ] in all 

proceedings involving the same issue or issues." 8 C.F.R. 

S 3.1(g). The issue before us, therefore, is whether the 

Board departed from its own precedent. 

Although an agency can change or adapt its policies, it 
acts arbitrarily if it departs from its established precedents 

without "announcing a principled reason" for the departure. 

Fertilizer Inst. v. Browner, 163 F.3d 774, 778 (3d Cir. 1998) 

(noting the well-established rule that an agency can depart 

from precedent only with explanation); see also Motor 

Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 41-43 (1983); Chisholm v. Defense Logistics 

Agency, 656 F.2d 42, 47 (3d Cir. 1981) (agencies must 

follow, distinguish, or overrule their own precedent). 

Numerous courts have applied this principle in the 

immigration context,4 as we do here. Further, if it departs 

from an announced rule without explanation or an"avowed 

alteration," such action could be viewed as "arbitrary, 

capricious, [or] an abuse of discretion." INS v. Yang, 519 

U.S. 26, 32 (1996). Here, the Board has not announced an 

alteration of the policy set forth in Patel. Thus, if the Board 

did in fact depart from Patel, it acted arbitrarily and we 

should overturn its ruling. 

III. 

We begin our analysis with a discussion of the Board’s 

opinion in Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978), 

in which the Board established the standard for the scope 

_________________________________________________________________ 

4. See Salameda v. INS, 70 F.3d 447, 450 (7th Cir. 1995) ("An agency 

may not abandon an interpretation without an explanation . . . . 

Agencies do not have the same freedom as courts to change direction 

without acknowledging and justifying the change."); Davila-Bardales v. 

INS, 27 F.3d 1, 5 (1st Cir. 1994) (requiring the BIA to "confront the issue 

squarely and explain why the departure is reasonable" when it departs 

from its own precedents); Israel v. INS, 785 F.2d 738, 740 (9th Cir. 1986) 

(the BIA acts arbitrarily when it disregards its own precedents and 

policies without "reasonable explanation"); Moret v. Karn, 746 F.2d 989, 

992 (3d Cir. 1984) (the INS abused its discretion where it failed to follow 

its own internal procedures). 

 6 

 

of remand orders in immigration proceedings. While few 

cases or Board decisions elaborate on Patel’s standard, and 

its language is often quoted without elaboration, 5 it is 

widely acknowledged to govern this situation. This is not 

disputed here: the parties and the Board simply offer 

competing interpretations of the standard the case sets 

forth. 

Before the Board in Patel was a motion to reopen 

proceedings so that the respondent could apply for relief 

under S 244(a)(1) of the INA, 8 U.S.C. S 1254(a)(1). In a twopage decision, the Board found that it lacked jurisdiction to 

decide this motion because it had previously reopened the 

case for consideration of respondent’s rights under asylum 

provisions and had remanded the case. Accordingly, the 

Immigration Judge, and not the Board, had jurisdiction.6 

Patel set forth the relevant test as follows: 

 [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. 

Under this formulation, the Board will have no 

continuing jurisdiction if remand is ordered, unless the 

_________________________________________________________________ 

5. E.g., In re L-V-K-, Int. Dec. 3409, 1999 WL 607159 (BIA Aug. 10, 1999) 

(dissent) (citing Patel for the proposition that "[o]nce a case is remanded, 

such a remand, unless specifically limited, is for any appropriate 

purpose"); CHARLES GORDON ET AL., 1 IMMIGRATION LAW AND PROCEDURE 

S 3.05[5][b], at 3-55 (Dec. 2000) (citing Patel). 

6. In the same decision, the Board denied another respondent’s motion 

to reopen for relief under S 244 because he failed to make out a prima 

facie case of eligibility, but this portion of the decision is not relevant 

here. 

 7 

 

Board has "expressly retained" jurisdiction. And, even if it 

has expressly retained jurisdiction,7 the Immigration Judge 

on remand can consider the stated purpose and other 

appropriate matters unless the remand is qualified or 

limited to a specific purpose. That is, for the Board to retain 

jurisdiction over all but a narrow issue, generally it must do 

two things in the text of its remand order: expressly retain 

jurisdiction, and limit the remand to a specific purpose. 

The Board did not do either here. 

1. Express retention of jurisdiction 

The government argues that the Board limited the 

Immigration Judge’s jurisdiction by stating that"we . . . 

remand this matter to the Immigration Court for 

consideration of the respondent’s claim pursuant to[CAT] 

regulations" and citing the relevant regulations. It proposes 

that this same language both expressly retained Board 

jurisdiction over everything but Johnson’s CAT claims, and 

qualified and limited the remand to this specific purpose. 

By reaching this conclusion without considering separately 

the "express retention" and "qualifying or limiting" 

requirements, it ignores the fact that Patel implies that 

there are at least some circumstances in which language 

could expressly retain jurisdiction without qualifying or 

limiting the remand. Otherwise, Patel’s second sentence -- 

"Further, when this is done . . ." -- would be superfluous. 

Accordingly, we examine each of Patel’s requirements in 

turn, beginning with its statement that the Board generally 
no longer has jurisdiction when it has remanded a case, 

except when it "expressly retains" jurisdiction over it. 

Patel itself does not elaborate on the concept of "express 

retention" of jurisdiction. After setting forth the test, it 

simply states that the remand order at issue was"not 

limited or qualified," bypassing analysis of"express 

retention." And, there is no caselaw discussing how we 

should interpret this language in this context. We thus turn 

_________________________________________________________________ 

7. Linguistically Patel’s phrase "when this is done" could refer either to 

"when the case is remanded" or to "when jurisdiction is expressly 

retained," but logically it refers to the latter. If the Board simply remands 

without retaining any jurisdiction, it makes no sense to define the scope 

of its un-retained jurisdiction. 

 8 

 

for guidance to the common definition of "express" as 

"explicit," in contrast to implicit or inferred. Black’s Law 

Dictionary, for instance, defines "express" as "[c]lear; 

definite; explicit; plain . . . . Made known distinctly and 

explicitly, and not left to inference." BLACK’S LAW DICTIONARY 

580 (6th ed. 1990). Other dictionaries give substantially 

similar definitions. See, e.g., WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY 803 (1993) (defining "express" as 

"directly and distinctly stated or expressed rather than 

implied or left to inference . . . definite, clear, explicit, 

unmistakable"). 

The most obvious way for a tribunal to "expressly retain 

jurisdiction" is by stating that it is doing precisely that. In 

In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 

F.3d 355, 367 (3d Cir. 2001), we characterized the district 

court as having "expressly retained exclusive jurisdiction" 

over certain settlement proceedings where its order simply 

stated that it "retain[ed] exclusive jurisdiction as to all 

matters relating to [settlement] administration." In re 

Prudential Ins. Co. of Am. Sales Practice Litig., 962 F. Supp. 

450, 566 P 10 (D.N.J. 1997). And in other situations where 

the adjective "express" is used, we have viewed it as 

requiring an actual, stated reference or mention. In 

Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 141 (3d 

Cir. 2001), for instance, we found no "express 

determination" that there was no just reason for delay 

where the district court’s order did not use the phrase ‘no 

just cause for delay’ or any similar statement. 

Here, the remand order did not state that the Board 

retained jurisdiction, nor did it make any reference at all to 

the Board’s jurisdiction. In this context, we see no reason 

to interpret "express" in a way other than as it is commonly 

understood. Given Patel, we cannot conclude that the order 

on its face expressly retained jurisdiction. 

2. Qualification or limitation to a specific purpose 

Even had the Board expressly retained jurisdiction, our 
inquiry would not end there. Patel then tells us: "[f]urther, 

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 

 9 

 

matters . . . ." It, thus, provides for two possible scenarios. 

If the Board "qualifie[d] or limit[ed] the remand for a specific 

purpose," then the Immigration Judge would be limited to 

that purpose. But if the Board did not include such 

qualifications or limitations, then the Immigration Judge 

could appropriately consider the stated purpose and "any 

and all matters" deemed appropriate or brought under 

relevant regulations. 

Clearly, here, the Board did state a purpose -- 

consideration of Johnson’s CAT claims. But the language of 

Patel just quoted contemplates that an order can articulate 

a purpose without being qualified or limited. The general 

rule that a remand encompasses the stated purpose and 

other matters clearly assumes and anticipates the normal 

practice of the Board, namely a remand for a stated 

purpose. Under Patel, the Immigration Judge’s jurisdiction 

is narrowed only when the remand order is qualified or 

limited, which, given the structure of Patel’s sentence, must 

be more than a statement of purpose alone. 

Although the Board stated a purpose, it did not limit or 

qualify the remand, so the Immigration Judge could then 

hear a wide range of matters. The government urges us to 

find that "[b]y explicitly stating that it was remanding the 

petitioner’s case for consideration pursuant to regulations 

that govern claims under the Convention Against Torture 

only, the Board specifically limited and qualified the basis 

of its remand." The difficulty with this argument is that 

Patel assumes a purpose will be "stated," as it was, but 

none of the limiting language that the government points to 

in its papers -- "only" and "sole and express purpose" -- or 

that the Board points to in its decision -- "sole purpose" -- 

appears in the order. Without such limiting language, the 

order contains nothing more than a stated purpose. 

We note, further, that the remand at issue here is similar 

to the one in Patel, which the Board found was not 

qualified or limited, in that it refers to a specific regulatory 

provision. In Patel, the Board had previously ordered 

reopening in view of respondent’s rights under a particular 

asylum provision, Patel, 16 I. & N. Dec. at 601, whereas 

here the order referred to the CAT regulations. This 

 10 

 

statement of a purpose was not a limitation in Patel, so it 

similarly should not be in this situation. 

3. The scope of the Immigration Judge’s jurisdiction 
Because the Board’s order stated a purpose but did not 

limit remand to that purpose, Patel instructs that the 

Immigration Judge could consider Johnson’s CAT claims 

and "any and all matters which [the Immigration Judge] 

deem[ed] appropriate in the exercise of his administrative 

discretion or which [were] brought to his attention in 

compliance with the appropriate regulations." Patel, 16 I. & 

N. at 601 (emphasis added). For the reasons below, we 

believe that the asylum claim was the type of matter that 

Patel contemplated an Immigration Judge would hear in 

these circumstances. 

In its opinion, the Board focused on the second part of 

Patel’s sentence, which refers to the "appropriate 

regulations." Not only did the Board emphasize the phrase 

when quoting Patel’s key passage, but it also characterized 

Patel as "requiring purposes for remand to be in compliance 

with the appropriate regulation." But this is not what Patel 

says. Instead, the phrase refers to the manner of bringing 

matters to the Immigration Judge’s attention, and-- 

particularly with its use of "any and all"-- seems to be an 

expansive, not a narrowing, phrase. 

The Board’s ruling here might also be viewed as opining 

that the motion was not brought in compliance with 

8 C.F.R. S 208.18(b)(2), the regulation that allows motions 

"to reopen proceedings for the sole purpose of seeking" 

withholding of removal under CAT. But if we were to 

concede that use of the word "sole" in this regulation was 

sufficient to restrict the Immigration Judge’s jurisdiction on 

remand, that would be entirely inconsistent with Patel. The 

Board did not address this issue, but seems to have either 

misread Patel or decided that somehow the regulation is a 

jurisdictional limitation that trumps Patel. The latter seems 

unlikely because the Board does rely on Patel as well. 

The Board also pointed out in its opinion that Johnson’s 

motion for asylum relief would have been time barred and 

would have exceeded the permissible number of motions if 

it had been deemed a motion to reconsider the Board’s prior 

 11 

 

decision. 8 C.F.R. S 3.2(b)(2) (establishing a filing deadline 

for motions to reconsider and limiting them to one per 

decision). This argument was not pursued on appeal, but 

even if it had been, it is not relevant at this stage of the 

proceedings. These time and numerical limitations do not 

apply to motions to reopen based on changed country 

circumstances where the movant shows evidence of 

changed conditions that "is material and was not available 

and could not have been discovered or presented at the 

former hearing." 8 C.F.R. SS 3.23(b)(3), 3.2(c)(3)(ii).8 The 

Board did not reach the issue of whether this standard was 

appropriately met or applied because it based its 

conclusion on the scope of the Immigration Judge’s 

jurisdiction, as defined by the remand order. 

The government similarly pointed out that this was 
Johnson’s second motion to reopen for consideration of 

asylum based on changed country conditions, and that the 

Board had denied the previous one. See In re J-J-, 21 I. & 

N. Dec. 976 (BIA 1997). But its argument that Johnson was 

impermissibly readjudicating his asylum claim is not 

addressed to the Immigration Judge’s jurisdiction on 

remand, and, even if it were, the regulations specifically 

permit "readjudication" when the requirements for showing 

changed country conditions are met. See 8 C.F.R. 

SS 3.23(b)(3), 3.2(c)(3)(ii). None of this amounts to a 

regulatory prohibition against the consideration of asylum 

based on changed country conditions. 

Patel states that the Immigration Judge may hear such 

matters "or" those deemed appropriate in the exercise of the 

judge’s discretion. Presumably this discretion has limits. 

The Board’s decision in In re J-J-, 21 I. & N. Dec. 976 (BIA 

1997), for instance, noted that the Board’s power to reopen 

cases on its own motion was "not meant to be used as a 

general cure for filing defects or to otherwise circumvent 

the regulations." Id. at 984. Assuming that a similar 

standard would apply where the Immigration Judge’s 

_________________________________________________________________ 

8. Motions to reopen based on changed country conditions are an 

exception to the rule that motions to reopen are normally limited to one 

per alien and must be filed no later than 90 days after the final 

administrative decision. See 8 C.F.R. S 3.2(c)(2). 

 12 

 

discretion, rather than the Board’s discretion, is at issue, 

we do not view the Immigration Judge’s consideration of 

Johnson’s motion to run afoul of the regulations. Nor do we 

view his addressing this issue to be an inappropriate 

exercise of his discretion, especially given the factual 

overlap among Johnson’s claim for asylum, statutory 

withholding of deportation, and withholding of deportation 

under CAT.9 

IV. 

The Board’s ruling that the Immigration Judge did not 

have jurisdiction runs counter to its own dictates in Patel, 

which contemplates that, in most cases, the Immigration 

Judge will have broad jurisdiction over the case on remand. 

This reading of Patel finds additional support from the 

policy expressed by the Executive Office for Immigration 

Review in the Board of Immigration Appeals Practice 

Manual, which states: "Once a case has been remanded to 

the Immigration Judge, the only motion that can be 

entertained by the Board is a motion to reconsider the 

decision to remand. All other motions must be filed with 

the Immigration Judge." DEPARTMENT OF JUSTICE, EXECUTIVE 

OFFICE FOR IMMIGRATION REVIEW, BOARD OF IMMIGRATION APPEALS 

PRACTICE MANUAL S 5.2(a)(iii)(B) (Nov. 1, 1999). While the 

manual does not have the weight of a law or regulation and 

does not affect the Board’s jurisdiction, see id. S 1.1(c), or 

our ruling, we note that the policy it expresses is consistent 
_________________________________________________________________ 

9. The first two claims require a showing that Johnson’s life or freedom 

would be threatened "on account of race, religion, nationality, 

membership in a particular social group, or political opinion," while CAT 

requires a showing that it is more likely than not that the alien would 

be tortured upon return to his or her country. Compare INA S 208, 8 

U.S.C. S 1158, and former INA S 243(h), 8 U.S.C. S 1253(h) (1995) 

(current version at INA S 241(b)(3), 8 U.S.C.S 1231(B)(3)), with 8 C.F.R. 

S 208.16(c)(2). The INS itself has recognized the similarity of these types 

of claims in general: in the interim rule establishing procedures for CAT 

claims, it noted that the same application form is used for asylum, 

withholding of removal, and relief under CAT because in many cases "the 

underlying facts supporting these claims will be the same." Regulations 

Concerning the Convention Against Torture, 64 Fed. Reg. 8478, 8485 

(Feb. 19, 1999). 

 13 

 

with the jurisdictional view expressed by the BIA in Patel, 

and with the result we reach. 

If the Board departs from Patel, it should provide a 

reasonable explanation for its departure. It is possible that 

it viewed the regulatory language (i.e.,"sole purpose") as 

effecting a limitation on jurisdiction, but that appears to 

run counter to the jurisdictional scheme reflected in Patel. 

The Board did not explain its departure and, therefore, its 

disregard of its own precedents was arbitrary. Because we 

view its ruling as a departure and because an agency 

should explain a departure, we will GRANT the petition for 

review, VACATE the Board’s order, and REMAND for 

further consideration in light of this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 14