                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 JAVIER BERMUDEZ-ARIZA,                            No. 15-72572
                                Petitioner,
                                                    Agency No.
                      v.                           A079-812-296

 JEFFERSON B. SESSIONS III, Attorney
 General,                                             OPINION
                        Respondent.


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

              Argued and Submitted June 4, 2018
                     Seattle, Washington

                       Filed June 25, 2018

Before: Jay S. Bybee and N. Randy Smith, Circuit Judges,
           and John Antoon II,* District Judge.

                    Opinion by Judge Bybee




   *
     The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
2                 BERMUDEZ-ARIZA V. SESSIONS

                            SUMMARY**


                             Immigration

   The panel granted a petition for review of the Board of
Immigration Appeals’ decision vacating an immigration
judge’s grant of asylum relief.

    The Board in this case remanded to the immigration judge
to reconsider the denial of Convention Against Torture
protection in light of recent caselaw. The Board’s remand
order did not mention anything about retaining jurisdiction
over any matters, including the IJ’s denial of asylum relief on
adverse credibility grounds. On remand, the IJ reconsidered
and reversed his prior adverse credibility determination and
granted Bermudez-Ariza asylum relief. The Board vacated
the grant of asylum, holding that the remand was limited to
reconsideration of CAT protection and that the IJ exceeded
the scope of his jurisdiction by reconsidering the denial of
asylum relief.

    The panel explained that for the Board to retain
jurisdiction when remanding to an IJ, its opinion in Matter of
Patel, 16 I. & N. Dec. 600 (BIA 1978), requires it to do two
things: (1) expressly retain jurisdiction, and (2) qualify or
limit the scope of remand. If the Board 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. Because the
Board did not expressly retain jurisdiction when it remanded
to the IJ, the panel held that the IJ had jurisdiction to

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               BERMUDEZ-ARIZA V. SESSIONS                     3

reconsider his initial denial of Bermudez-Ariza’s application
for asylum. The panel remanded for the Board to address the
IJ’s grant of asylum on its merits.


                         COUNSEL

Cawood K. Bebout (argued), Mount Vernon, Washington, for
Petitioner.

John Beadle Holt (argued) and Sabatino F. Leo, Trial
Attorneys; Anthony P. Nicastro, Acting Assistant Director;
Office of Immigration Litigation, Civil Division, United
States Department of Justice, Washington, D.C.; for
Respondent.


                          OPINION

BYBEE, Circuit Judge:

    This case requires us to address the scope of an
Immigration Judge’s (“IJ’s”) jurisdiction on remand from the
Board of Immigration Appeals (“BIA”). Javier Bermudez-
Ariza applied for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”).
The IJ initially denied all relief but, on subsequent remand
from the BIA, reconsidered and granted asylum. The BIA
vacated the IJ’s decision, holding that the IJ lacked
jurisdiction to reconsider asylum on remand. Bermudez-
Ariza now petitions our court for review.

     For the BIA to retain jurisdiction when remanding to an
IJ, its opinion in Matter of Patel requires it to do two things:
4              BERMUDEZ-ARIZA V. SESSIONS

(1) expressly retain jurisdiction, and (2) qualify or limit the
scope of remand. 16 I. & N. Dec. 600, 601 (BIA 1978). 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. See 8 C.F.R. § 1003.23(b)(1). Because the
BIA did not expressly retain jurisdiction when it remanded to
the IJ in this case, the IJ had jurisdiction to reconsider his
initial denial of Bermudez-Ariza’s application for asylum.
We therefore grant the petition for review and remand to the
BIA for it to address the IJ’s grant of asylum on its merits.

                               I

    Javier Antonio Bermudez-Ariza is a native and citizen of
Colombia. He alleges that he fled Colombia to escape
persecution by the Fuerzas Armadas Revolucionarias de
Colombia (“FARC”) on account of his political opinions. He
entered the United States illegally in March 2002, and the
Department of Homeland Security commenced removal
proceedings against him later the same year. Bermudez-
Ariza conceded removability but applied for asylum,
withholding of removal, and protection under CAT.

    Bermudez-Ariza testified at a January 2003 hearing
before an IJ, who found him not credible and denied all relief
from removal. The BIA affirmed in May 2004, and
Bermudez-Ariza petitioned our court for review. While his
petition was pending, he also moved the BIA to reopen his
case, alleging ineffective assistance of counsel. The BIA
denied his motion in November 2004, and Bermudez-Ariza
filed a second petition for review in our court. We
consolidated the two petitions, but before they could be fully
briefed, the government moved to remand to the BIA for it to
reconsider Bermudez-Ariza’s CAT claim in light of Reyes-
              BERMUDEZ-ARIZA V. SESSIONS                   5

Reyes v. Ashcroft, 384 F.3d 782, 787–88 (9th Cir. 2004), and
Zheng v. Ashcroft, 332 F.3d 1186, 1194–96 (9th Cir. 2003).
The government stipulated that, if the case was remanded,
Bermudez-Ariza would be able to reassert all issues in a
subsequent petition for review.

    We granted the government’s motion and remanded to the
BIA “for consideration of petitioner’s Convention Against
Torture claim.” The BIA, in turn, “remand[ed] to the
Immigration Judge in order for him to reassess his decision
taking into consideration the cases noted [i.e., Reyes-Reyes
and Zheng] and any other recent precedent decisions which
would affect the respondent’s claim for protection under the
Convention Against Torture.” The BIA’s remand order
concluded: “The record of proceedings is remanded for
further consideration of the respondent’s claim under the
Convention Against Torture.” The order did not, however,
mention anything about retaining jurisdiction.

    The case came before the same IJ as before. In March
2010, the IJ reversed his prior adverse credibility
determination and granted asylum. The IJ gave little
explanation for reversing the adverse credibility
determination aside from stating that “recent Ninth Circuit
case law has repeatedly been reversing adverse credibility
findings in Pre REAL ID ACT cases such as this,” and citing
Chawla v. Holder, 599 F.3d 998 (9th Cir. 2010), and Tijani
v. Holder, 598 F.3d 647 (9th Cir. 2010). In May 2012, the
BIA vacated the grant of asylum in a non-precedential,
single-member decision, holding that the IJ “exceeded the
scope of his jurisdiction on remand.” Because the IJ’s
decision contained “only one, conclusory sentence addressing
CAT relief,” the BIA remanded to the IJ for entry of a new
order on just the CAT claim. The IJ rendered an oral decision
6              BERMUDEZ-ARIZA V. SESSIONS

denying CAT relief in January 2013, and the BIA affirmed in
July 2015.

    Bermudez-Ariza now petitions our court for review of the
BIA’s July 2015 decision affirming denial of CAT relief, the
May 2012 decision vacating the grant of asylum, and—in
accordance with the stipulation—the May and November
2004 decisions affirming the initial denial of all relief and
denying the motion to reopen. Specifically, he makes four
alternative arguments: (1) the IJ had jurisdiction to reconsider
and grant asylum; (2) substantial evidence does not support
the IJ’s initial denial of relief from removal; (3) the BIA
abused its discretion in denying the motion to reopen; and
(4) we should remand to the BIA for it to decide whether to
grant humanitarian asylum. Because we agree that the IJ had
jurisdiction to reconsider and grant asylum, we need not
consider Bermudez-Ariza’s remaining arguments.

                               II

    In general, an IJ may “upon his or her own motion at any
time . . . reopen or reconsider any case in which he or she has
made a decision, unless jurisdiction is vested with the Board
of Immigration Appeals.” 8 C.F.R. § 1003.23(b)(1). The
question here is whether the BIA retained jurisdiction when
remanding to the IJ “for further consideration of the
respondent’s claim under the Convention Against Torture.”
We review this question of law de novo. See De Martinez v.
Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004).

   The BIA has itself explained the circumstances under
which it retains jurisdiction when remanding to an IJ. In
Patel, an IJ found two respondent aliens deportable, and the
BIA affirmed. 16 I. & N. Dec. at 601. The respondents then
              BERMUDEZ-ARIZA V. SESSIONS                    7

moved the BIA to reopen. Id. at 600–01. The BIA denied the
motion as to the male respondent, but granted it as to the
female respondent and remanded her case to the IJ. Id. at
601. While the female respondent’s case was pending before
the IJ, both respondents once again moved the BIA to reopen
proceedings. Id. at 600. The BIA denied the motion as to the
male respondent but held that it lacked jurisdiction to
adjudicate the motion as to the female respondent:

       [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.

Id. at 601; see also In Re M-D-, 24 I. & N. Dec. 138, 141–42
(BIA 2007) (reaffirming Patel and holding that the IJ
reacquired jurisdiction on remand).

    In Johnson v. Ashcroft, the Third Circuit relied on the
BIA’s decision in Patel to address a situation strikingly
similar to the instant case. 286 F.3d 696 (3d Cir. 2002). The
BIA had affirmed denial of Jimmy Johnson’s application for
asylum and withholding of removal. Id. at 698. Johnson then
moved the BIA to reopen for consideration of relief under
CAT. Id. The BIA granted his motion and remanded to the
IJ “for consideration of the respondent’s claim pursuant to
8              BERMUDEZ-ARIZA V. SESSIONS

[CAT] regulations.” Id. at 699. On remand, the IJ denied
CAT relief but granted asylum and withholding of removal.
Id. The BIA, however, vacated the grant of asylum and
withholding on the ground that the IJ lacked jurisdiction to
consider those forms of relief. Id.

     The Third Circuit granted Johnson’s petition for review,
holding that the BIA acted arbitrarily in departing from Patel.
According to the Third Circuit, Patel required that the BIA do
“two things” in its remand order to retain jurisdiction:
(1) “expressly retain jurisdiction,” and (2) “limit the remand
to a specific purpose.” Id. at 701. The Third Circuit held that
the BIA did neither of those things in Johnson’s case and
therefore vacated the BIA’s decision and remanded for
further proceedings. Id. at 705; see also Linares-Urrutia v.
Sessions, 850 F.3d 477, 482 (2d Cir. 2017) (“The government
is correct that the initial BIA order set forth a purpose for the
remand; but the order did not expressly limit the IJ’s ability
to revisit other issues. In the absence of any such limiting
language or other indicia, the scope of a remand is general.”
(citing Patel, 161 I. & N. Dec. at 601, and Johnson, 286 F.3d
at 703)).

    We cited Johnson with approval in Fernandes v. Holder,
619 F.3d 1069, 1074 (9th Cir. 2010). There, an IJ denied
Jacinto Pascoul Fernandes’s application for asylum. Id. at
1071. The BIA reversed, holding that Fernandes had proven
past persecution, and remanding for the IJ to decide whether
the resulting presumption of future persecution was rebutted.
Id. at 1072. On remand, the government filed a motion to
reopen in light of new evidence that Fernandes had
knowingly filed his asylum application through an individual
who routinely filed fraudulent applications. Id. at 1072–73.
The IJ granted the motion and found that Fernandes’s asylum
               BERMUDEZ-ARIZA V. SESSIONS                     9

application was frivolous. Id. at 1073. The BIA affirmed,
holding that the IJ had properly considered the government’s
motion. Id.

    Fernandes petitioned our court for review, and we denied
the petition. Id. at 1076. Relying on the BIA’s decision in
Patel and the Third Circuit’s decision in Johnson, we held
that “the IJ’s jurisdiction on remand from the BIA is limited
only when the BIA expressly retains jurisdiction and qualifies
or limits the scope of the remand to a specific purpose.” Id.
at 1074. Because the BIA’s “remand order did not limit or
qualify the IJ’s ability to consider new evidence or motions”
but “simply directed the IJ to conduct further proceedings
‘consistent with’ the Board’s opinion,” we concluded that the
IJ had properly considered the government’s motion to
reopen on remand. Id.

    Whereas the government in Fernandes argued that the
scope of remand from the BIA was general, here the shoe is
on the other foot, and the government now argues that the
scope of remand from the BIA was limited. The government,
however, must play by the same rules. Whether it is the
government or the petitioner who has an interest in the IJ’s
jurisdiction on remand, the BIA must follow the procedure it
outlined in Patel. Unless and until it overrules 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. See Patel,
16 I. & N. Dec. at 601.

    We think it likely that 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.” That said, the
10             BERMUDEZ-ARIZA V. SESSIONS

BIA’s remand order nowhere mentioned jurisdiction, much
less expressly retained it. Thus, irrespective 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. Indeed, this result is consistent with our policy of
“encourag[ing] remand on an open record” to “allow[ ] prior
decision-makers to cure an error.” Padilla-Martinez v.
Holder, 770 F.3d 825, 831 (9th Cir. 2014).

                              III

     In sum, the BIA did not expressly retain jurisdiction when
it remanded to the IJ, and therefore the scope of its remand
was general under Patel. As such, the IJ had jurisdiction to
reconsider and grant Bermudez-Ariza’s application for
asylum. The petition for review is GRANTED and the case
remanded to the BIA for it to address the IJ’s grant of asylum
on its merits and for any further proceedings consistent with
this opinion.
