                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            DEC 07 2010
                    UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                            FOR THE NINTH CIRCUIT



LUIS ALBERTO CHUQUILLANQI-                       No. 08-74287
VASQUEZ,
                                                 Agency No. A070-643-637
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted November 3, 2010
                            San Francisco, California

Before: NOONAN and PAEZ, Circuit Judges, and DUFFY, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
      Petitioner, Luis Alberto Chuquillanqui-Vasquez, a native and citizen of Peru,

petitions for review of a final removal order issued by the Board of Immigration

Appeals (“BIA”). Petitioner contends that the BIA’s decision denying his asylum

application is not supported by substantial evidence. He also argues that the

Immigration Judge (“IJ”) abused her discretion by failing to consider his proffered

new evidence on remand, and the BIA erred by failing to consider this evidence on

appeal. Because we conclude that the Immigration Judge erred as a matter of law

when she ruled that the BIA’s remand order barred her from considering the new

evidence, we therefore GRANT the petition in part and remand so the IJ may

reconsider Petitioner’s new evidence. Accordingly, we do not address the merits of

Petitioner’s asylum and other claims. In the event Petitioner does not prevail on

remand, he can ultimately raise these claims in a new petition.

                                       Background

       On October 31, 2002, after an evidentiary hearing, the IJ found Petitioner

removable but granted his application for asylum. On August 30, 2004, the BIA

vacated the IJ’s decision and ordered Petitioner removed to Peru. Petitioner

appealed the BIA’s decision to this court. However, on June 16, 2005, while

Petitioner’s judicial appeal was pending, the BIA sua sponte vacated its August 30,

2004 decision in accordance with this court’s decision in Molina-Camacho v.


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Ashcroft, 393 F.3d 937 (9th Cir. 2004),1 to the extent that it entered a removal

order pertaining to Petitioner, and remanded to the IJ “for further proceedings and

for entry of a new decision consistent with Molina-Camacho and the prior decision

of the [BIA].” On remand, Petitioner attempted to offer new and previously

unavailable documents in support of his claim that he had a well-founded fear of

future persecution in Peru. Although commenting that she found Petitioner’s brief

meritorious, the IJ declined to consider the proffered new evidence, stating that she

was bound by the BIA’s instruction to simply enter judgment in accordance with

Molina-Camacho and the BIA’s earlier decision, noting that it is for the BIA and

this court to review her decision. Consequently, the IJ ordered Petitioner removed

to Peru.

      Petitioner appealed the IJ’s decision to the BIA, arguing, among other

things, that the IJ had erred as a matter of law by refusing to consider his proffered

new evidence and claimed that her failure constituted a due process violation.

With respect to this argument, the BIA’s September 11, 2008 ruling construed

Petitioner’s claim as a motion to remand the proceeding for further consideration



      1
        This court held in Molina-Camacho, that the BIA had no authority under
the Immigration and Nationality Act (“INA”) to issue orders of removal. Rather,
the BIA was required to remand the case to the IJ to issue the final removal order
based on the BIA’s determination of removability. 393 F.3d at 941. This court
overruled its narrow construction of the BIA’s authority under the INA in Lolong
v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc).

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of the new evidence. The BIA denied the motion finding that Petitioner had not

met his “heavy burden” of establishing that the proffered evidence would likely

change the result of the case. Consequently, the BIA dismissed Petitioner’s appeal

and ordered him removed to Peru. This timely petition for review followed.

                                  Discussion

      Whether the IJ had discretion to consider Petitioner’s motion is a question of

law, which is reviewed de novo. Lim v. INS, 224 F.3d 929, 933 (9th Cir. 2000).

      In Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir. 2010), we recently

held that for the BIA to limit the IJ’s jurisdiction on remand, the BIA must: 1.

expressly retain jurisdiction; and 2. limit the scope of remand to a specific purpose.

      Here, in its remand order to the IJ, the BIA did not expressly retain

jurisdiction nor did the BIA expressly limit the scope of remand. Moreover, the

BIA remanded for further proceedings consistent with their decision. Accordingly,

the IJ had jurisdiction and should have decided the motion to consider additional

evidence. Thus, the IJ’s finding that the BIA’s decision precluded her from

considering any additional evidence constituted legal error.

      We also do not find that the IJ’s legal error was harmless. The BIA upheld

the IJ’s determination that she lacked jurisdiction, but treated Petitioner’s argument

as a motion to remand. In denying Petitioner’s motion, the BIA cited Matter of

Coelho, 20 I&N Dec. 464 (BIA 1992), for the proposition that a petitioner moving


                                           4
to remand has a “‘heavy burden’ of establishing that the proffered evidence would

likely change the result of the case.” In contrast, the standard for deciding whether

an IJ may consider new evidence is whether the evidence is “material, was not

previously available, and could not have been discovered or presented at the former

hearing.” In re M-D-, 24 I&N Dec. 138, 141 (BIA 2007). Since the standard for

deciding whether an IJ may consider new evidence appears to be more generous

than the test for a motion to remand, the IJ’s legal error in finding that she was

precluded from considering Petitioner’s additional evidence is not harmless.

Petition GRANTED in part and REMANDED.




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