Bermudez-Ariza v. Sessions, No. 15-72572

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtOpinion by Judge Bybee, Circuit Judge
Citation893 F.3d 685
Parties Javier BERMUDEZ-ARIZA, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
Decision Date25 June 2018
Docket NumberNo. 15-72572

893 F.3d 685

Javier BERMUDEZ-ARIZA, Petitioner,
v.
Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 15-72572

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 2018—Seattle, Washington
Filed June 25, 2018


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

John Beadle Holt (argued) and Sabatino F. Leo, Trial Attorneys; Anthony P. Nicastro, Acting Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A079-812-296

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges, and John Antoon II,* District Judge.

OPINION

Opinion by Judge Bybee, Circuit Judge:

This case requires us to address the scope of an Immigration Judge’s ("IJ’s") jurisdiction on remand from the Board of Immigration Appeals ("BIA"). Javier Bermudez-Ariza applied for asylum, withholding of removal, and protection under the

893 F.3d 686

Convention Against Torture ("CAT"). The IJ initially denied all relief but, on subsequent remand from the BIA, reconsidered and granted asylum. The BIA vacated the IJ’s decision, holding that the IJ lacked jurisdiction to reconsider asylum on remand. Bermudez-Ariza now petitions our court for review.

For the BIA to retain jurisdiction when remanding to an IJ, its opinion in Matter of Patel requires it to do two things: (1) expressly retain jurisdiction, and (2) qualify or limit the scope of remand. 16 I. & N. Dec. 600, 601 (BIA 1978). If the BIA fails to do either of these things, the scope of the remand is general and the IJ may reconsider any of his or her prior decisions. See 8 C.F.R. § 1003.23(b)(1). Because the BIA did not expressly retain jurisdiction when it remanded to the IJ in this case, the IJ had jurisdiction to reconsider his initial denial of Bermudez-Ariza’s application for asylum. We therefore grant the petition for review and remand to the BIA for it to address the IJ’s grant of asylum on its merits.

I

Javier Antonio Bermudez-Ariza is a native and citizen of Colombia. He alleges that he fled Colombia to escape persecution by the Fuerzas Armadas Revolucionarias de Colombia ("FARC") on account of his political opinions. He entered the United States illegally in March 2002, and the Department of Homeland Security commenced removal proceedings against him later the same year. Bermudez-Ariza conceded removability but applied for asylum, withholding of removal, and protection under CAT.

Bermudez-Ariza testified at a January 2003 hearing before an IJ, who found him not credible and denied all relief from removal. The BIA affirmed in May 2004, and Bermudez-Ariza petitioned our court for review. While his petition was pending, he also moved the BIA to reopen his case, alleging ineffective assistance of counsel. The BIA denied his motion in November 2004, and Bermudez-Ariza filed a second petition for review in our court. We consolidated the two petitions, but before they could be fully briefed, the government moved to remand to the BIA for it to reconsider Bermudez-Ariza’s CAT claim in light of Reyes-Reyes v. Ashcroft , 384 F.3d 782, 787–88 (9th Cir. 2004), and Zheng v. Ashcroft , 332 F.3d 1186, 1194–96 (9th Cir. 2003). The government stipulated that, if the case was remanded, Bermudez-Ariza would be able to reassert all issues in a subsequent petition for review.

We granted the government’s motion and remanded to the BIA "for consideration of petitioner’s Convention Against Torture claim." The BIA, in turn, "remand[ed] to the Immigration Judge in order for him to reassess his decision taking into consideration the cases noted [i.e., Reyes-Reyes and Zheng ] and any other recent precedent decisions which would affect the respondent’s claim for protection under the Convention Against Torture." The BIA’s remand order concluded: "The record of proceedings is remanded for further consideration of the respondent’s claim under the Convention Against Torture." The order did not, however, mention anything about retaining jurisdiction.

The case came before the same IJ as before. In March 2010, the IJ reversed his prior adverse credibility determination and granted asylum. The IJ gave little explanation for reversing the adverse credibility determination aside from stating that "recent Ninth Circuit case law has repeatedly been reversing adverse credibility findings in Pre REAL ID ACT cases such as this," and citing Chawla v. Holder , 599 F.3d 998 (9th Cir. 2010), and Tijani v. Holder , 598 F.3d 647 (9th Cir. 2010). In May 2012, the

893 F.3d 687

BIA vacated the grant of asylum in a non-precedential, single-member decision, holding that the IJ "exceeded the scope of his jurisdiction on remand." Because the IJ’s decision contained "only one, conclusory sentence addressing CAT relief," the BIA remanded to the IJ for entry of a new order on just the CAT claim. The IJ rendered an oral decision denying CAT relief in January 2013, and the BIA affirmed...

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5 practice notes
  • Villegas-Castro v. Garland, 20-9593
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 2, 2021
    ...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 "......
  • Villegas-Castro v. Garland, 20-9593
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 2, 2021
    ...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 ......
  • Awudza v. Barr, No. 17-72772
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 20, 2020
    ..."expressly retain[ed] jurisdiction [nor] qualifi[ed] or limit[ed] the scope of remand to a specific purpose." Bermudez-Ariza v. Sessions, 893 F.3d 685, 688 (9th Cir. 2018) (citing Matter of Patel, 16 I. & N. Dec. at 601). Thus, the IJ would have been within its jurisdiction to reassess Awud......
  • McNair v. Maxwell & Morgan PC, No. 15-17383
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 25, 2018
    ...damages to which Plaintiff is entitled. See 15 U.S.C. § 1692k. Accordingly, we remand to the district court for a determination on damages.893 F.3d 685REVERSED AND REMANDED IN PART.Each party shall bear their own costs.--------Notes:* Following the retirement of Judge Kozinski, Judge Bybee ......
  • Request a trial to view additional results
5 cases
  • Villegas-Castro v. Garland, 20-9593
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 2, 2021
    ...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 "......
  • Villegas-Castro v. Garland, 20-9593
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 2, 2021
    ...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 ......
  • Awudza v. Barr, No. 17-72772
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 20, 2020
    ..."expressly retain[ed] jurisdiction [nor] qualifi[ed] or limit[ed] the scope of remand to a specific purpose." Bermudez-Ariza v. Sessions, 893 F.3d 685, 688 (9th Cir. 2018) (citing Matter of Patel, 16 I. & N. Dec. at 601). Thus, the IJ would have been within its jurisdiction to reassess Awud......
  • McNair v. Maxwell & Morgan PC, No. 15-17383
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 25, 2018
    ...damages to which Plaintiff is entitled. See 15 U.S.C. § 1692k. Accordingly, we remand to the district court for a determination on damages.893 F.3d 685REVERSED AND REMANDED IN PART.Each party shall bear their own costs.--------Notes:* Following the retirement of Judge Kozinski, Judge Bybee ......
  • Request a trial to view additional results

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