BIA Holds It Loses Jurisdiction Upon Remand and a New Hearing Is Not Required Unless the Remand Order Says So

The Board of Immigration Appeals, in a precedent decision clarifying Matter of Patel, has held that it does not retain jurisdiction over a case after remanding the record to an Immigration Court, and that an Immigration Judge is not required to hold a new hearing on remand unless the Board's order expressly directs one. Where a remand is unqualified, jurisdiction returns entirely to the Immigration Judge, who may conduct whatever further proceedings the remand order calls for, consistent with the INA and the regulations.

Applying that rule, the Board found no error in the Immigration Judge's decision to issue a new ruling denying withholding of removal and protection under the Convention Against Torture without convening an additional hearing, since the Board's remand order did not require one and the respondent had already received a full hearing before the case went up on appeal. The Board concluded that reassessing the existing record without reopening the evidentiary record did not violate due process or exceed the scope of the remand.

The full text of Matter of C-M-H-H- can be found here: https://www.justice.gov/eoir/media/1463836/dl?inline

Ninth Circuit Addresses Scope of Remand from BIA

The Ninth Circuit has affirmed that on remand from the BIA to the IJ, the BIA only retains jurisdiction if it does two things: (1) expressly retains jurisdiction, and (2) qualifies or limits the scope of remand.  If the BIA 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.  In the instant case, the BIA remanded for the IJ to consider protection under the Convention Against Torture, but did not state anything about retaining jurisdiction.  On remand, the IJ reversed his previous denial of asylum.  The BIA reversed, stating the IJ had exceeded the scope of remand.  Ultimately, the case reached the Ninth Circuit, who disagreed that the IJ had exceeded the scope of the BIA's remand order.  The court emphasized that 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."  Though the BIA limited the scope of remand to a specific purpose in this case by stating that it was remanding “for further consideration of the respondent’s claim under the Convention Against Torture,” its remand order nowhere mentioned jurisdiction, much less expressly retained it.  Thus, the IJ had the authority to reconsider his decision.

The full text of Bermudez-Ariza v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/06/25/15-72572.pdf