Javier Bermudez-Ariza v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JAVIER BERMUDEZ-ARIZA, No. 15-72572 Petitioner, Agency No. v. A079-812-296 JEFFERSON B. SESSIONS III, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 4, 2018 Seattle, Washington Filed June 25, 2018 Before: Jay S. Bybee and N. Randy Smith, Circuit Judges, and John Antoon II,* District Judge. Opinion by Judge Bybee * The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. 2 BERMUDEZ-ARIZA V. SESSIONS SUMMARY** Immigration The panel granted a petition for review of the Board of Immigration Appeals’ decision vacating an immigration judge’s grant of asylum relief. The Board in this case remanded to the immigration judge to reconsider the denial of Convention Against Torture protection in light of recent caselaw. The Board’s remand order did not mention anything about retaining jurisdiction over any matters, including the IJ’s denial of asylum relief on adverse credibility grounds. On remand, the IJ reconsidered and reversed his prior adverse credibility determination and granted Bermudez-Ariza asylum relief. The Board vacated the grant of asylum, holding that the remand was limited to reconsideration of CAT protection and that the IJ exceeded the scope of his jurisdiction by reconsidering the denial of asylum relief. The panel explained that for the Board to retain jurisdiction when remanding to an IJ, its opinion in Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978), requires it to do two things: (1) expressly retain jurisdiction, and (2) qualify or limit the scope of remand. If the Board 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. Because the Board did not expressly retain jurisdiction when it remanded to the IJ, the panel held that the IJ had jurisdiction to ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. BERMUDEZ-ARIZA V. SESSIONS 3 reconsider his initial denial of Bermudez-Ariza’s application for asylum. The panel remanded for the Board to address the IJ’s grant of asylum on its merits. COUNSEL 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. OPINION 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 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 ...

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