Javier Bermudez-Ariza v. Jefferson Sessions, 893 F.3d 685

Javier Bermudez-Ariza, a Colombian national, applied for asylum, withholding of removal, and CAT protection after conceding removability.
An IJ denied relief in 2003 based on an adverse credibility finding; the BIA affirmed in 2004.
While petitions were pending, the government moved to remand to the BIA for CAT reconsideration; the court granted the motion and the BIA remanded to the IJ "for further consideration of the respondent’s claim under the Convention Against Torture." The BIA did not expressly retain jurisdiction.
On remand the same IJ reversed his prior adverse credibility finding and granted asylum (citing recent Ninth Circuit authority).
The BIA vacated the grant in 2012, holding the IJ exceeded his jurisdiction on remand; the IJ later denied CAT relief and the BIA affirmed.
Bermudez-Ariza petitioned for review; the Ninth Circuit considered whether the IJ had jurisdiction on remand and granted the petition, remanding to the BIA to address the IJ’s asylum grant on the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IJ had jurisdiction on BIA remand	Bermudez-Ariza: BIA did not expressly retain jurisdiction, so remand was general and IJ could reconsider all issues	Government: Remand limited to CAT; IJ lacked authority to grant asylum on remand	Court: BIA did not expressly retain jurisdiction; under Patel rule remand was general, so IJ had jurisdiction to reconsider and grant asylum
Proper effect of BIA remand language	Remand language limited only to CAT but did not retain jurisdiction; thus IJ could act generally	Government: Language limited IJ to CAT only, so IJ exceeded scope by granting asylum	Court: Even if scope arguably limited to CAT, absence of express retention of jurisdiction means remand is general under Patel
Application of Patel remand rule	Remand rule requires express retention and limitation to keep jurisdiction at BIA	Government contends Patel does not control here or was effectively followed	Court: Reaffirms Patel—BIA must both expressly retain jurisdiction and qualify remand to limit IJ; otherwise IJ reacquires jurisdiction
Appropriate remedy	Bermudez-Ariza: Vacatur of BIA’s jurisdictional ruling and remand for BIA to decide IJ’s asylum grant on merits	Government: Affirm BIA vacatur of IJ’s asylum grant	Court: Grants petition, vacates BIA’s jurisdictional ruling as applied, and remands to BIA to address the asylum grant on merits

Reyes v. Ashcroft, 384 F.3d 782 (9th Cir. 2004) (CAT-related precedent prompting remand)
Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) (CAT-related precedent prompting remand)
Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002) (applies Patel to hold BIA must expressly retain jurisdiction and limit remand)
Fernandes v. Holder, 619 F.3d 1069 (9th Cir. 2010) (adopts Patel/Johnson rule on IJ jurisdiction after remand)
Chawla v. Holder, 599 F.3d 998 (9th Cir. 2010) (authority relied on by IJ when reversing credibility finding)
Tijani v. Holder, 598 F.3d 647 (9th Cir. 2010) (authority relied on by IJ when reversing credibility finding)
Padilla-Martinez v. Holder, 770 F.3d 825 (9th Cir. 2014) (recognizes policy favoring open-record remands to allow prior decision-makers to cure error)