concluding that, unlike Ventura, “[h]ere, . . . the Board has already rejected ‘the changed country conditions’ proposition, so our ruling on the persecution issue does not usurp the Board’s authority to rule on it first”
How later courts described this case
- concluding that, unlike Ventura, “[h]ere, . . . the Board has already rejected ‘the changed country conditions’ proposition, so our ruling on the persecution issue does not usurp the Board’s authority to rule on it first”
- finding jurisdiction under § 1252(a)(2)(B)(ii) to review denial of BIA’s discretionary motion to reopen because the BIA had not exercised any statutorily provided discretion under the sub-chapter of title 8 governing immigration proceedings, but instead had exercised discretion as “delineated” by a regulation of the Attorney General
- stating that a motion for reconsideration fails if it does not “identify a change in the law, a misapplication of the law, or an aspect of the case that the BIA overlooked”
- stating that the language in Ventura is precatory, not mandatory, and remand is not necessary if the BIA has considered the issue, even if new evidence is allowed
Written by the judges who cited it.
The opinion
EMILIO M. GARZA, Circuit Judge,
concurring in part and dissenting in part:
I concur in the majority’s well-reasoned decision, except for its final resolution. The majority correctly notes that “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Ventura, 537 U.S. at 16, 123 S.Ct. 353 . However, this case does not present the court with “rare circumstances” that would warrant granting asylum without first remanding the case to the BIA for further review. While the BIA did consider the “changed country conditions,” it did so only in the context of the motion to reopen. The BIA was never given an opportunity to “bring its expertise on the matter; [to] evaluate the evidence; and ... [provide an] informed discussion and analysis” on these changed circumstances as they relate to Zhao’s actual asylum claim. Id. at 17, 123 S.Ct. 353 . As a result, the majority has “seriously disregarded the agency’s legally mandated role.” Id. The more prudent and proper approach is to reverse the BIA’s order denying Zhao’s motion to reopen, and to remand the case to the BIA for additional investigation or explanation.
Accordingly, I respectfully DISSENT IN PART.