                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1584
                         ___________________________

                              Yesenia Garcia Payeras

                              lllllllllllllllllllllPetitioner

                                            v.

         Jefferson B. Sessions, III, Attorney General of the United States

                             lllllllllllllllllllllRespondent
                                     ____________

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

                             Submitted: May 15, 2018
                              Filed: August 9, 2018
                                  ____________

Before BENTON, KELLY, and STRAS, Circuit Judges.
                           ____________

KELLY, Circuit Judge.

       Petitioner Yesenia Garcia Payeras petitions for review of an order of the Board
of Immigration Appeals (BIA). After an immigration judge (IJ) denied her motion
to reopen her removal proceedings and rescind its in absentia removal order, the BIA
dismissed her administrative appeal. Having jurisdiction under 8 U.S.C.
§ 1252(a)(1), we grant the petition and remand for further proceedings.
                                     I. Background

      Garcia Payeras is a native and citizen of Guatemala. She and her three minor
daughters sought refuge in the United States after they were threatened by gang
members. In February 2015, they were paroled into the United States and released
from custody. They relocated to Sioux Falls, South Dakota. In June 2015, Garcia
Payeras filed an application for asylum.1 Her individual hearing date was originally
scheduled for August 5, 2015, but was rescheduled for November 25, 2015.

      From April through September 2015, Garcia Payeras went to a Sioux Falls
hospital several times complaining of worsening abdominal pain in the area of her
appendix. Each time she was advised to take ibuprofen. By mid-September, the pain
was so intense that she flew to Guatemala, where she underwent an emergency
appendectomy on September 29, 2015. After the surgery, she went to southern
Mexico and has lived there since September 30, 2015.

       Prior to the November hearing, Garcia Payeras’s counsel moved for Garcia
Payeras to appear by telephone, but the IJ denied the request. Her counsel orally
moved for a continuance during the hearing, but that was also denied. The IJ then
ordered Garcia Payeras and her children be removed in absentia for failing to appear
at the hearing.

       Garcia Payeras timely filed a motion to reopen, seeking to rescind the in
absentia removal order and to reopen her asylum proceedings. She did not contest
that she had received proper notice of the hearing or that she was removable. Rather,
she asserted that her failure to appear was due to exceptional circumstances—her
need to obtain necessary medical care outside the United States. The IJ denied the
motion to reopen, concluding that, because Garcia Payeras had left the United States,


      1
          Her children are included as derivatives on her application.

                                           -2-
the immigration court lacked jurisdiction over her in absentia motion pursuant to the
“departure bar” of 8 C.F.R. § 1003.23(b)(1): “A motion to reopen or to reconsider
shall not be made by or on behalf of a person who is the subject of removal,
deportation, or exclusion proceedings subsequent to his or her departure from the
United States.”

      Garcia Payeras appealed, arguing that the immigration court had jurisdiction
to reopen, reasserting her claim that her failure to appear was due to her need for
medical attention, and asking the BIA to remand the case to the IJ for a determination
on the merits.2 The BIA dismissed the appeal, stating, in pertinent part:

      [Garcia Payeras] does not claim that she did not receive notice of her
      final hearing. Rather, she argues that she did not appear at her
      November 25, 2015, hearing because of exceptional circumstances, and
      she seeks reopening to pursue her asylum claim. Specifically, [Garcia
      Payeras] alleges that she left the United States to receive emergency
      medical care she alleges was denied to her in the United States. The
      Immigration Judge denied [Garcia Payeras’s] motion to reopen because
      she determined that the Immigration Court did not have jurisdiction to
      consider a motion to reopen made by a person who is subject to removal
      proceedings subsequent to her departure from the United States. See 8
      C.F.R. § 1003.23(b)(1).

      While [Garcia Payeras] filed a motion to appear telephonically prior to
      her hearing, in the absence of adjudication of that request, she was
      obligated to appear at her hearing. See Barrientos v. Mukasey, 306 Fed.
      Appx. 326, 327 (8th Cir. 2009) (unpublished) (denial of the motion to
      reopen was not an abuse of discretion because the mere submission of
      a motion for a telephonic hearing did not relieve alien of the obligation
      to personally appear at the hearing, and the alien did not show
      exceptional circumstances to excuse his absence). . . .



      2
          The government did not file a response to the appeal.

                                          -3-
      Moreover, as [Garcia Payeras] is not physically present in the United
      States, she is not eligible for asylum relief. See section 208(a)(1) of the
      Immigration and Nationality Act, 8 U.S.C. § 1158(a)(1). Consequently,
      we find no basis to disturb the Immigration Judge’s decision. [Record
      citations removed].

Garcia Payeras petitions for review of the BIA’s decision.

                                    II. Discussion

     We review “the BIA’s decision as the final agency action, but to the extent the
BIA adopts the findings of the IJ, this court reviews those findings as part of the final
agency action.” Mayorga-Rosa v. Sessions, 888 F.3d 379, 382 (8th Cir. 2018).

       We first must determine the basis on which the BIA denied Garcia Payeras’s
motion to reopen. Garcia Payeras points to the BIA’s discussion of the IJ’s reason
for denying the motion to reopen, along with the fact that it found “no basis to disturb
the Immigration Judge’s decision,” as evidence that the BIA adopted the IJ’s
departure bar analysis. Garcia Payeras asserts this was error and urges us to join with
the majority of federal circuit courts that have invalidated this regulation. According
to the government, the BIA’s discussion of the IJ’s decision simply provided the
procedural background of the case. The government argues the BIA based its
decision on its own independent analysis, not on the IJ’s reasoning, and therefore the
validity of the departure bar is not before us.

       Although the BIA’s opinion describes the IJ’s reasoning, we do not read it as
adopting the IJ’s analysis. Rather, we agree with the government that the BIA’s
discussion of the IJ’s jurisdictional analysis is better read as an acknowledgment of
the basis for the IJ’s decision. If the BIA were simply adopting the IJ’s reasoning that
the immigration court lacked jurisdiction to reopen, it would not have needed to
provide other reasons not to disturb the IJ’s decision. Therefore, “we review the

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BIA’s decision as the final agency action.” See Mayorga-Rosa, 888 F.3d at 382.
Because we conclude the BIA did not adopt the IJ’s analysis, we review the BIA’s
reasoning. See Ortega-Marroquin v. Holder, 640 F.3d 814, 820 (8th Cir. 2011)
(concluding validity of departure bar was “a hypothetical question not properly before
th[e] court” where BIA had not addressed the issue).

       The BIA’s opinion offers two reasons for affirming the IJ’s denial of the
motion to reopen: (1) “[w]hile [Garcia Payeras] filed a motion to appear
telephonically prior to her hearing, in the absence of adjudication of that request, she
was obligated to appear at her hearing,” and (2) “as [Garcia Payeras] is not physically
present in the United States, she is not eligible for asylum relief.” Garcia Payeras
challenges both reasons. “We review the BIA’s denial of the motion to reopen for
abuse of discretion.” Villatoro-Ochoa v. Lynch, 844 F.3d 993, 994 (8th Cir. 2017)
(noting that “[t]he BIA has broad discretion on motions to reopen”) (quotation
omitted). “The BIA abuses its discretion if it does not give a rational explanation for
its decision or ignores or distorts evidence.” Id.

       Both parties agree it was within the IJ’s discretion to deny Garcia Payeras’s
request to appear telephonically at the asylum hearing. But Garcia Payeras asserts
this does not address the issue raised in her motion to reopen—whether her need for
emergency medical care constituted exceptional circumstances excusing her failure
to appear at the hearing. See 8 U.S.C. § 1229a(e)(1) (listing “serious illness of the
alien” as possible “exceptional circumstance”). She argues the BIA abused its
discretion by failing to address the merits of her motion to reopen. The government
counters that the reason given by the BIA must be read as a rejection of Garcia
Payeras’s argument that her need for emergency medical attention constituted
exceptional circumstances sufficient to excuse her failure to appear at the asylum
hearing.




                                          -5-
       Although we review the BIA’s decision not to reopen “under a highly
deferential abuse of discretion standard,” we also require that the BIA actually
“consider the issues raised and announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and not merely reacted.”
Camarillo-Jose v. Holder, 676 F.3d 1140, 1142–43 (8th Cir. 2012) (quotations
omitted). “The BIA abuses its discretion . . . where the agency fails to consider all
factors presented by the alien or distorts important aspects of the claim.” Gonzalez-
Vega v. Lynch, 839 F.3d 738, 741 (8th Cir. 2016) (quotation omitted). “[T]he BIA
need not write an exegesis on every contention a movant advances, [but] it must give
an explanation specific enough that we can discern and evaluate its reasoning.” Id.;
see also Garcia-Mata v. Sessions, 893 F.3d 1107, 1109 (8th Cir. 2018) (noting that
when the BIA renders a decision that is subject to judicial review, it “must describe
its reasoning with such clarity as to be understandable” (cleaned up)).

       We agree with Garcia Payeras that the BIA did not address whether her
inability to get proper medical attention constituted exceptional circumstances
sufficient to excuse her failure to attend her asylum hearing. The unpublished case
cited by the BIA to support its decision, Barrientos, 306 F. App’x. at 327, involves
a different issue—whether moving to participate only by telephone in a removal
hearing is sufficient to excuse an alien’s failure to appear at the hearing. Because it
does not appear to us that the BIA heard and considered whether Garcia Payeras’s
need for emergency medical attention constituted exceptional circumstances, we
conclude that the BIA’s reliance on this first reason was an abuse of discretion.

       With regard to the second reason—that Garcia Payeras was ineligible for
asylum relief because she was no longer in the United States—Garcia Payeras alleges
that the BIA legally misconstrued 8 U.S.C. § 1158(a)(1): “Any alien who is
physically present in the United States or who arrives in the United States . . . ,
irrespective of such alien’s status, may apply for asylum . . . .” Garcia Payeras
acknowledges § 1158(a)(1) requires an asylum applicant to be physically present in

                                         -6-
the United States to apply for asylum, but argues that it does not require an applicant
be physically present in the United States when the application is considered. The
government urges us to read the BIA’s second reason differently. According to the
government, the BIA implicitly concluded that by leaving the United States, Garcia
Payeras abandoned her initial asylum claim. See 8 C.F.R. § 1208.8(a) (“An applicant
who leaves the United States without first obtaining advance parole under § 212.5(f)
of this chapter shall be presumed to have abandoned his or her application [for
asylum].”). The government argues that, having abandoned her original asylum
claim, Garcia Payeras cannot file a new application for asylum because she is not in
the United States.

      The government concedes that the BIA never explicitly found that Garcia
Payeras had abandoned her original asylum application. It nonetheless urges us to
decide that the BIA implicitly decided that Garcia Payeras abandoned her asylum
application. We decline to do so. First, under § 1208.8(a), an alien is only presumed
to have abandoned her asylum application by leaving the United States without
advance parole. Without any mention of abandonment, we will not read the BIA’s
decision as implicitly presuming that Garcia Payeras abandoned her asylum claim.
More importantly,

      A reviewing court, in dealing with a determination or judgment which
      an administrative agency alone is authorized to make, must judge the
      propriety of such action solely by the grounds invoked by the agency.
      If those grounds are inadequate or improper, the court is powerless to
      affirm the administrative action by substituting what it considers to be
      a more adequate or proper basis.

SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); see also Mouawad v. Gonzales, 485
F.3d 405, 413–14 (8th Cir. 2007) (citing Chenery in remanding the case to the BIA
to consider arguments that were never explicitly considered). It is unclear to us
whether the BIA interpreted § 1158(a)(1) to require an applicant be physically present

                                         -7-
in the United States when the application for asylum is considered or considered
Garcia Payeras’s original asylum application abandoned because she left the United
States. Accordingly, we remand the matter to the BIA for it to determine in the first
instance whether Garcia Payeras’s motion to reopen “warrants a favorable exercise
of the BIA’s discretion.” See Gonzalez-Vega, 839 F.3d at 742 (quotation omitted).

                                  III. Conclusion

      The petition is granted and this matter is remanded to the agency for further
proceedings consistent with this opinion.
                       ______________________________




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