Introduction

When the Board of Immigration Appeals (BIA) remands a case to an immigration judge for further proceedings, there are often issues that may arise outside of the Board’s stated reason for remanding the case. Under long-existing Board precedent, the scope of an immigration judge’s latitude to consider issues on remand is shaped by the language of the Board’s remand order. In order to limit the immigration judge’s jurisdiction, the Board must retain jurisdiction over issues outside the scope of remand and expressly limit the scope of remand to the stated purpose for remand. Thus, if the Board states a purpose for remand but does not expressly limit the remand to that particular issue and retain jurisdiction over other issues, the immigration judge may properly consider other issues on remand. Depending on the particular facts, the parties may be able to submit evidence that could not have been presented in the initial proceedings before the immigration judge on remand.

In this article, we will examine relevant administrative and judicial precedents addressing the scope of remand by the BIA to an immigration judge.

Motion To Remand Generally

The Board has observed that “[m]otions to remand are not expressly addressed by the [INA] or the regulations.” Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992) [PDF version]. Nevertheless, the Board noted that it often considered motions to remand, and that such motions “are an accepted part of appellate civil procedure and serve a useful function.” Id. “[W]here a motion to remand is really in the nature of a motion to reopen or a motion to reconsider, it must comply with the substantive requirements for such motions.” Id.

The current regulations address the concept of remand. The Board is precluded from engaging in de novo review of findings of fact by the immigration judge and cannot engage in factfinding of its own. 8 C.F.R. 1003.1(d)(3). “If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge or, as appropriate, to the Service.” 8 C.F.R. 1003.1(d)(4). The Board may remand to allow a petitioner to present new evidence to overcome the denial of a petition in cases where the petitioner was not put on notice of the deficiency and given a reasonable opportunity to address it. Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) [PDF version] [see article].

The regulations specifically provide for BIA remands to the immigration judge “with instructions to allow the Department of Homeland Security (DHS) to complete or update the appropriate identity, law enforcement, or security investigations or examinations [under 8 C.F.R. 1003.47].” 8 C.F.R. 1003.1(d)(6)(ii)(A). The Board need not remand for this purpose, however, if it decides to dismiss the respondent’s appeal or deny the relief sought. 8 C.F.R. 1003.1(d)(6)(iv).

In certain cases, a motion to reconsider the decision of an immigration judge or DHS officer may be deemed to be a motion for remand. 8 C.F.R. 1003.2(b)(1). First, a motion to reconsider may be deemed a motion to remand if the motion to reconsider the decision of the immigration judge or DHS officer is pending when the movant files an appeal with the BIA. Id. Second, the motion may be deemed a motion to remand if it is filed after an appeal is filed with the BIA. Id. Motions to reopen may be deemed to be motions to remand under the same circumstances as motions to reconsider. 8 C.F.R. 1003.2(c)(4).

Matter of Patel

The Board’s most important precedent on the scope of remand comes from Matter of Patel, 16 I&N Dec. 600 (BIA 1978) [PDF version]. In Patel, the Board held 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.”
Matter of Patel, 16 I&N Dec. at 601. (Emphasis added.)

When the Board remands a case to an immigration judge for further proceedings, the Board generally divests itself of jurisdiction over the matter unless it expressly provides otherwise. The Board’s rule on the immigration judge’s jurisdiction on remand follows from this principle. If the Board states a purpose for remand but does not qualify or limit the remand only for that purpose, the immigration judge has jurisdiction to consider issues other than that purpose which he or she deems necessary or appropriate to dispose of the case or comply with applicable regulations. If the Board does expressly limit or qualify the scope of remand to a particular purpose, the immigration judge is limited to only considering the matters stated by the Board in the remand.

Matter of M-D-

The Board’s most comprehensive post-Patel precedent on the scope of remand is Matter of M-D-, 24 I&N Dec. 138 (BIA 2007) [PDF version]. Matter of M-D- addressed several important issues following from Matter of Patel.

The Board considered the scope of remand when it remands for the completion of background checks and updating of other information under 8 C.F.R. 1003.1(d)(6)(ii)(A). The Board noted that the relevant regulations are not “limited solely to consideration of the recommended relief.” Matter of M-D-, 24 I&N Dec. at 141. In light of the omission of limitations on the scope of remand in 8 C.F.R. 1003.1(d)(6) and the Board’s long-standing precedent from Matter of Patel, the Board held as follows in Matter of M-D-:

[W]hen a case is remanded to an Immigration Judge for appropriate background checks pursuant to 8 C.F.R. 1003.47(h), the Immigration Judge retains jurisdiction over the proceedings. Although the Immigration Judge may not reconsider the decision of the Board, if the background checks reveal new evidence potentially affecting relief, the Immigration Judge may consider such evidence before entering an order.”
Matter of M-D-, 24 I&N Dec. at 141.

Remand for completion of background checks and other information is not remand limited only for that purpose. Although the Board made clear that the immigration judge may not reconsider the Board’s decision, it provided that the immigration judge may take into account any new evidence that comes to light on remand that may be relevant to the respondent’s eligibility for relief before entering an order. In reaching this conclusion, the Board recognized that it had “historically treated a remand as effective for consideration of all matters unless it is specifically limited to a specific purpose.” Id.

The Board continued, noting that in light of its general rule on the scope of remand articulated in Matter of Patel, in cases where no final order exists, “the immigration judge has authority to consider additional evidence if it is material, was not previously available, and could not have been discovered or presented at the former hearing.” Id. Thus, if either party had the opportunity to present the “new” evidence at the former hearing, the immigration judge does not have jurisdiction to consider it on remand, even in cases where there is no final order. If, however, the evidence (1) is material, (2) was not previously available, and (3) could not have been discovered or presented at the former hearing, the immigration judge may consider it on remand before entering an order. The Board rephrased its rule: “In other words, the Immigration Judge has authority to consider new evidence if it would support a motion to reopen the proceedings.” Id. at 142.

Other BIA Precedents

The Board addressed both Matter of Patel and Matter of M-D- in its 2012 decision in Matter of L-S-, 25 I&N Dec. 705 (BIA 2012) [PDF version]. In a footnote, the Board wrote:

As a general matter, when a case is remanded to an Immigration Judge, unless we specifically limit the scope of the proceedings below, the Immigration Judge reacquires jurisdiction and may consider additional evidence concerning new or previously considered relief if the requirements submitting such evidence are met.”
Matter of L-S-, 25 I&N Dec. at 709 n.4.

The Board in Matter of L-S- recognized “judicial economy” concerns for immigration judges on remand. Id. Nevertheless, the Board restated its rule that the immigration judge may consider new issues on remand unless otherwise provided. In the instant case, it noted that its remand order, contrary to the view of the immigration judge, did not constrain him from considering the respondent’s application for humanitarian asylum. Id.

In 2003, the Board published Matter of Deanda-Romo, 23 I&N Dec. 597 (BIA 2003) [PDF version]. In the case, the Board remanded the record to the immigration judge after concluding that the immigration judge had erred in finding that the respondent had not accrued the requisite 7 years of continuous physical presence for cancellation of removal before being rendered inadmissible. The scope of the remand was “for further proceedings to allow [the respondent] to apply for cancellation of removal and any other relief for which he may be eligible.” Id. at 600. Citing to Matter of Patel, the Board stated in a footnote that although it had not considered whether the respondent might be eligible for adjustment of status and was not remanding on the basis of his motion suggesting that he was, the respondent would be free to submit his application for adjustment to the immigration judge on remand. Id. at 600 n.3.

In 1999, the Board briefly addressed Matter of Patel in Matter of L-V-K-, 22 I&N Dec. 976 (BIA 1999) [PDF version]. The Board restated its rule from Matter of Patel: “Once a case is remanded, such a remand, unless specifically limited, is for any appropriate purpose.” Id. at 981.

Judicial Precedents

Several Federal circuit courts have weighed in on the Board’s rule on the scope of remand from Matter of Patel. No circuit has called the rule articulated in Matter of Patel into question. All decisions citing to Matter of Patel have applied it. The courts have considered how Matter of Patel applies to particular remand orders in specific cases. To learn which jurisdictions are bound by each circuit, please see our article on the subject [see article].

Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002)

The United States Court of Appeals for the Third Circuit provided the most in-depth judicial treatment of the Board’s rule in Matter of Patel in its 2003 precedent decision, Johnson v. Ashcroft, 286 F.3d 696 (3d Cir. 2002) [PDF version].

In the case, the Board had granted the respondent’s motion for reopening for consideration of his claim for protection under the Convention Against Torture (CAT). Id. at 698-99. The Board’s stated purpose for remand was “for consideration of the respondent’s claim pursuant to [CAT] regulations.” Id. at 699. On remand, the immigration judge considered, upon motion by the respondent, the respondent’s eligibility for asylum based on changed country conditions. The immigration judge ultimately found that the respondent was eligible for both asylum, withholding of deportation, and protection under the CAT. Id. The immigration judge addressed the jurisdictional issue by finding that because his initial decision was no longer final after the case had been reopened, he could entertain questions beyond the one specifically presented by the Board for remand. Id.

The former Immigration and Naturalization Service (INS) appealed from the immigration judge’s decision. The Board affirmed the granting of CAT relief but vacated the grants of asylum and withholding of deportation. Id. The vacatur was based on the Board’s conclusion that the immigration judge only had jurisdiction to consider the respondent’s eligibility for protection under the CAT. Id.

The Third Circuit assessed whether the Board’s action was in accord with Matter of Patel, which it described as being “widely acknowledged to govern this situation.” Id. at 701.

The Third Circuit read Patel as stipulating that the Board does not retain jurisdiction after remand unless it expressly retains it. Id. It added that even when the Board expressly retains jurisdiction, the immigration judge may consider the stated purpose of the remand and other appropriate matters unless the Board also qualified or limited the remand for a specific purpose. Id. The Third Circuit held that, based on Matter of Patel, in order for the Board to retain jurisdiction over all manners except for a narrow issue, it must do the following in the remand order:

1. Expressly retain jurisdiction; and
2. Limit the remand to a specific purpose. Id.

In the instant case, the Third Circuit found that the Board’s remand order neither expressly retained jurisdiction over all issues besides the CAT claim nor limited the remand to that specific purpose. Id. Although the Board did state that the purpose of the remand was to consider the respondent’s eligibility for CAT protection under the CAT regulations, the Third Circuit concluded that the Government’s position “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.” Id. at 702. The Third Circuit suggested that in order to expressly retain jurisdiction over everything except the stated purpose of remand, the Board would have to state something to that effect in the remand order. Id.

The Third Circuit then examined whether the Board’s remand was qualified or limited to a specific purpose, for “[e]ven if the Board expressly retained jurisdiction, our inquiry would not end there.” Id. The Third Circuit reasoned that, under Matter of Patel, the order that “qualifies or limits the remand for a specific purpose” presupposes the possibility that the Board retained jurisdiction with the “when this is done” language. Id. That is, this additional step means that even if the Board does retain jurisdiction, the immigration judge may consider additional issues on remand unless the Board qualifies or limits the remand for a specific purpose. Id.

In the instant matter, the Third Circuit noted that the Board had provided a stated purpose for the remand. Id. at 702-03. The Third Circuit’s reading of Matter of Patel, however, “contemplate[d] that an order can articulate a purpose without being qualified or limited.” Merely stating a purpose for remand was “the normal practice of the Board.” Id. at 703. The Third Circuit found that qualifying or limiting the remand only for that purpose was distinct from stating a purpose for the remand. Id. The Third Circuit added that citing to a specific regulatory provision or scheme does not, in and of itself, qualify or limit remand for the stated purpose. Id. It noted that in the case underlying Matter of Patel, the remand order had included a reference to a particular asylum provision. Id.

Second Circuit

The Second Circuit has held regarding a remand order by the BIA stating a purpose for remand but without expressly limiting the immigration judge’s ability to consider ancillary issues: “In the absence of any such limiting language or other indicia, the scope of remand is general.” Linares-Urrutia v. Sessions, 850 F.3d 477, 482 (2d Cir. 2017) [PDF version]. In Linares-Urrutia, the Board’s stated purpose for remand to the immigration judge had remanded for the purpose of considering whether the alien had established past persecution and a likelihood of future persecution. Applying Matter of Patel, the Second Circuit concluded that it was not improper for the immigration judge to consider also whether the alien had crossed the Canadian border because the remand order did not preclude the immigration judge from doing so, rejecting the Government’s arguments to the contrary. See also Chupina v. Holder, 570 F.3d 99, 103 (2d Cir. 2009) [PDF version].

Ninth Circuit

In Bermudez-Ariza v. Sessions, 893 F.3d 685 (9th Cir. 2018) [PDF version], the Ninth Circuit addressed the issues in some detail. “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.” Id. at 686. It added that “[u]nless and until [the BIA] overturns Patel, the BIA only retains jurisdiction when remanding to an IJ if its remand order expressly retains jurisdiction and qualifies or limits the scope of remand to a specific purpose.” Id. In Bermudez-Ariza, the Ninth Circuit concluded that the Board had limited the purpose of remand by stating that the remand was “for further consideration of the respondent’s claim under the Convention Against Torture”; however, because the Board had not expressly retained jurisdiction over other matters, the immigration judge had jurisdiction to reconsider and grant the alien’s application for asylum. Id. at 688-89. The Ninth Circuit articulated its interpretation of the rule: “[I]rrespective of whether the BIA qualified or limited the scope of remand, the IJ had jurisdiction to reconsider his earlier decisions under 8 C.F.R. 1003.23.” Id.

The Ninth Circuit compared the situation Bermudez-Ariza to its earlier decision in Fernandes v. Holder, 619 F.3d 1069 (9th Cir. 2010) [PDF version]. In Fernandes, the Board applied Patel for the first time and found that the immigration judge had The Ninth Circuit explained that the immigration judge had jurisdiction to consider new adverse evidence against the alien on remand beyond the stated purpose of the remand order. In Bermudez-Ariza, the Ninth Circuit compared the cases and explained that “[t]he government … must play by the same rules [as the alien].” Bermudez-Ariza, 893 F.3d at 688.

First Circuit

The United States Court of Appeals for the First Circuit tangentially addressed Matter of Patel in Cano-Saldarriaga v. Holder, 729 F.3d 25 (1st Cir. 2013) [PDF version]. The Board had reversed a grant of cancellation of removal and remanded to the immigration judge for the purpose of entering a final order of removal and designating a country of removal. Id. at 28. On remand, the alien filed a timely application for asylum, withholding of removal, and CAT protection, which were considered by the immigration judge. Id. Citing to Patel, the First Circuit described the immigration judge’s decision to consider the alien’s claims for relief on remand to be “in the fair exercise of her discretion.” Id.

Fifth Circuit

The United States Court of Appeals for the Fifth Circuit addressed Matter of Patel in Bianco v. Holder, 624 F.3d 265 (5th Cir. 2010) [PDF version]. The Board had remanded for purpose of determining the date of the alien’s admission and “for the entry of such further orders as may be necessary and appropriate under the circumstances.” Id. at 274. The immigration judge allowed the Government to lodge an additional charge against the alien on remand. Id. at 273. The alien argued that the scope of remand was limited such that, under Matter of Patel, the immigration judge erred in allowing the Government to introduce additional charges on remand. Id. The Fifth Circuit disagreed, finding that because the Board had not limited the purpose of remand the immigration judge did not err in permitting the additional charge against the alien. Id. at 274.

Eighth Circuit

The United States Court of Appeals for the Eighth Circuit considered an interesting issue based on Matter of Patel in Bracic v. Holder, 603 F.3d 1027 (8th Cir. 2010) [PDF version]. The Board had remanded to the immigration judge for purpose of entering a final order of removal. Id. at 1033. In the telephone hearing on remand, the immigration judge asked the alien if he had anything further to present after having stated that the purpose of the hearing was strictly to enter a final order of removal. Id. The alien appealed to the Board, arguing that there was additional evidence supporting his claims, but the Board denied the appeal because the alien had not presented the evidence in the hearing on remand. Id. The Eighth Circuit concluded that this constituted procedural error under Matter of Patel. Id. The Eighth Circuit reasoned that the Board’s remand order was not limited such as to preclude additional evidence under the rule articulated in Matter of Patel. Id. Thus, the court reasoned that the immigration judge had not provided the alien with the opportunity to present additional evidence on remand. Id. (The Eighth Circuit concluded, however, that the alien failed to establish that he was prejudiced by the error. Id.)

In Estrada-Rodriguez v. Lynch, 825 F.3d 397 (8th Cir. 2016) [PDF version], the Eighth Circuit considered whether an immigration judge erred in considering on remand evidence that an alien’s conviction was a crime involving moral turpitude. The stated purpose of remand was “for further consideration of the hardship factors …, and for other action as deemed appropriate.” Id. at 403. Applying Matter of Patel, the Eighth Circuit concluded that the immigration judge’s reconsideration of his prior conclusion was neither inappropriate nor an abuse of discretion. Id.

Conclusion

The scope of an immigration judge’s latitude to consider issues on remand is shaped by the language of the Board’s remand order. In order to limit the immigration judge’s jurisdiction, the Board must retain jurisdiction over issues outside the scope of remand and expressly limit the scope of remand to the stated purpose for remand. Thus, if the Board states a purpose for remand but does not expressly limit the remand to that particular issue and retain jurisdiction over other issues, the immigration judge may properly consider other issues on remand. Depending on the particular facts, the parties may be able to submit evidence that could not have been presented in the initial proceedings before the immigration judge on remand.

A noncitizen facing immigration proceedings should always work closely with an experienced immigration attorney. An experienced attorney will be able to assist his or her client through each step of the proceedings in order to ensure that the client’s rights and interests are protected and that the client has the opportunity to best present his or her case under the circumstances.