3d Circuit: Unless BIA Remand Is Expressly Limited, IJ Has Jurisdiction to Grant Any Relief for Which Respondent Is Eligible (Johnson v. Ashcroft)

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

3D CIRCUIT: UNLESS BIA REMAND IS EXPRESSLY LIMITED, IJ HAS JURISDICTION TO GRANT ANY RELIEF FOR WHICH RESPONDENT IS ELIGIBLE (JOHNSON V. ASHCROFT)
Immigrants' Rights Update, Vol. 16, No. 3, May 30, 2002

The U.S. Court of Appeals for the Third Circuit has reversed a ruling of the Board of Immigration Appeals that denied asylum and withholding of deportation to a Liberian national. The BIA had previously remanded the case to the immigration judge for purposes of considering eligibility under the Convention Against Torture (CAT). The IJ granted not only CAT relief but also asylum and withholding based on changed country conditions, and the BIA reversed the grant of asylum and withholding on the grounds that the IJ's jurisdiction on remand was limited to the application for CAT relief.

The Third Circuit reversed the BIA's denial of asylum and withholding based on established BIA precedent. The BIA and the parties "essentially agreed" that the scope of an IJ's jurisdiction on remand is governed by Matter of Patel, 16 I. & N. Dec. 600 (BIA 1978). In Patel, the BIA ruled that when it remands a case to an IJ, it divests itself of jurisdiction over the case unless it expressly retains jurisdiction and limits the remand. Unless the BIA both retains jurisdiction and limits the scope of remand, the IJ on remand may consider any matters deemed appropriate. In this case the BIA remanded the case "for consideration of the respondent's claim pursuant to CAT regulations" but neither expressly limited the remand to that issue nor expressly retained jurisdiction over the case. Accordingly, the court found that the BIA erred in concluding that the IJ lacked jurisdiction to grant asylum and withholding.

Johnson v. Ashcroft, __ F.3d __, No. 01-1331 (3d Cir. Apr. 16, 2002).