Bolieiro v. Holder, Jr.

United States Court of Appeals
For the First Circuit

No. 12-1807

LUCIA MARIA BOLIEIRO,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Howard, Lipez, and Kayatta,
Circuit Judges.

Kerry E. Doyle for petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, with whom Stuart F. Delery, Principal Deputy Assistant
Attorney General, Civil Division, and Terri J. Scadron, Assistant
Director, were on brief, for respondent.

September 27, 2013
 LIPEZ, Circuit Judge. Lucia Maria Bolieiro was the

respondent in lengthy removal proceedings involving her reentry

into the United States after her mandated removal. These

proceedings culminated in her filing of a motion to reopen with the

immigration judge ("IJ") that raised due process and ineffective

assistance of counsel claims. After that motion and a subsequent

motion to reconsider were both denied, she appealed to the Board of

Immigration Appeals ("BIA"). Relying on a set of regulations

known collectively as "the post-departure bar," 8 C.F.R. §§

1003.2(d), 1003.23(b)(1), the agency concluded that it lacked

jurisdiction to entertain her motion and dismissed her appeals.

In Perez Santana v. Holder, No. 12-2270 (1st Cir. Sept.

27, 2013), which we issue in conjunction with this opinion, we hold

that the post-departure bar conflicts with the unambiguous language

of the motion to reopen statute. See 8 U.S.C. § 1229a(c)(7)(A).

As a result, the agency's regulation, in the circumstances

applicable to this petition for review, cannot preclude Bolieiro

from vindicating her statutory right to seek reopening of her

removal proceedings. Although the government seeks to distinguish

Bolieiro's case on the basis that her motion was filed outside the

ninety-day deadline set forth in the motion to reopen statute, the

agency's denials of Perez Santana's and Bolieiro's petitions

ultimately rest on the same basic rationale: the post-departure

bar prevents the agency from entertaining their motions to reopen.

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 Under well-settled rules governing agency review, we are

unable to substitute an alternative basis for the agency's

conclusion and therefore cannot distinguish the two cases on the

grounds the government now advances. Thus, our holding in Perez

Santana compels us to grant Bolieiro's petition, and we remand for

further proceedings before the agency.

I.

Bolieiro's removal proceedings have followed a long and

winding road through the immigration system. This appeal, however,

requires knowledge of only a relatively narrow set of facts. We

briefly recount them.

A. Factual Background

In 1972, Bolieiro entered the United States as a lawful

permanent resident ("LPR"). After living in the country for many

years, she pled guilty to a controlled substance offense in New

Hampshire Superior Court on January 11, 1991. The next year, on

April 16, 1992, Immigration and Naturalization Services ("INS")

initiated deportation proceedings against her.1 Although the

record of the initial phases of these proceedings is less than

lucid, it seems that Bolieiro appeared before the IJ and expressed

her intent to seek discretionary relief under former Section 212(c)

of the Immigration and Nationality Act ("INA"). See 8 U.S.C.

1
"The INS's enforcement functions have since been transferred
to the Department of Homeland Security (DHS)." Chedid v. Holder,
573 F.3d 33, 34 n.1 (1st Cir. 2009).

-3-
§ 1182(c), repealed by Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208, Title III,

§ 304(b), 110 Stat. 3009, 3009-597. Bolieiro was informed that she

should file her application for relief by August 10, 1992, and the

IJ continued her case until December 22, 1992.

Bolieiro never filed the application. On September 30,

1992, the IJ found her deportable based on the record of her

controlled substance conviction, and also deemed her request for

212(c) relief abandoned because of her failure to file her

application by the prescribed deadline. Mailed to her home

address, the order of deportation was later returned to sender

because Bolieiro had moved without leaving a forwarding address.

Despite the deportation order, Bolieiro remained in the

United States. She asserts that she became a confidential

informant for Immigration and Customs Enforcement ("ICE") in 1995,

and was placed under an order of supervision. She also claims that

she married a U.S. citizen in 1997 who was abusive towards her.

(She reports that she is now divorced from this person.) On

January 24, 1999, she was arrested for domestic assault. This case

brought her to the attention of immigration authorities once again

and removal proceedings were initiated against her.

On February 12, 1999, Bolieiro filed a motion to reopen

before the IJ, with the assistance of counsel. The motion was

denied without prejudice because of its failure to conform with

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substantive and evidentiary requirements, and the IJ directed

Bolieiro to refile "a proper motion, accompanied by the appropriate

fee and supported by an affidavit."

On March 10, 1999, Bolieiro submitted another motion.

The motion raised a variety of due process and ineffective

assistance of counsel arguments. The motion also contended that

she was eligible for various forms of relief, including her

abandoned application for 212(c) relief. The IJ denied the motion

on several grounds, including, inter alia, that the motion was

untimely; that she had failed to demonstrate prima facie

eligibility for 212(c) relief; and that she had failed to comply

with the procedural requirements for raising a claim of ineffective

assistance of counsel. After the IJ denied her motion, Bolieiro

was deported from the United States on June 3, 1999.

Sometime afer her removal, Bolieiro reentered the country

without authorization. After ICE received a tip from a

confidential source, federal agents arrested her on May 14, 2011.

On June 8, 2011, she was indicted by a federal grand jury for

unlawful reentry in violation of 8 U.S.C. § 1326. She pled not

guilty to this charge, and subsequently moved to dismiss the

indictment. On February 19, 2013, the district court granted the

motion and dismissed all charges against her. See United States v.

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Bolieiro, 923 F. Supp. 2d 319, 2013 WL 541291 (D. Mass. Feb. 13,

2013).2

B. Recent Proceedings Before the Agency

With the aid of new counsel, Bolieiro moved to reopen her

proceedings before the IJ on December 28, 2011. This motion raised

a number of arguments, including that: the conviction that was the

basis of her removal had been vacated on constitutional grounds;

her former counsel had provided ineffective assistance; and her

deportation order was issued in violation of due process. The

motion sought to reopen her proceedings pursuant to the motion to

reopen statute. In the alternative, Bolieiro appealed to the

agency's sua sponte authority to reopen proceedings. In a

supplemental filing, she further asserted that she was eligible for

relief under the Violence Against Women Act ("VAWA") because she

was a victim of domestic abuse. The filing noted that she had

filed a self-petition with Citizenship and Immigration Services

("USCIS"), an agency within the Department of Homeland Security, as

a precursor to obtaining relief under VAWA. See Part II.B, infra.

On January 31, 2012, the IJ denied Bolieiro's motion,

citing the post-departure bar and the BIA's opinion in Matter of

Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008). See also 8

C.F.R. §§ 1003.2(d), 1003.23(b)(1). Based on those authorities,

2
The government has appealed the dismissal of the indictment.
At the request of the parties, we stayed that appeal pending the
resolution of Bolieiro's petition for review.

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the IJ concluded that he lacked jurisdiction to consider the

motion. The IJ further rejected Bolieiro's due process arguments.

Petitioner filed a motion to reconsider with the IJ on February 15,

2012, which was denied in a summary order.

Bolieiro appealed both the denials of her motion to

reopen and her motion to reconsider to the BIA. During this time,

USCIS approved her VAWA self-petition, thereby fulfilling a

prerequisite for Bolieiro to obtain relief under VAWA. On May 29,

2012, the BIA dismissed the appeals. The BIA agreed with the IJ

that Bolieiro's motion must be denied for lack of jurisdiction,

citing our prior opinion in Pena-Muriel v. Gonzales, 489 F.3d 438

(1st Cir. 2007), and the post-departure regulation. The BIA did

not expressly distinguish between the general provisions of the

motion to reopen statute, and the "special rule" governing motions

to reopen filed by individuals seeking relief under VAWA, despite

the fact that those provisions impose different requirements. The

BIA also concluded that due process did not require the reopening

of petitioner's proceedings in order to address the vacatur of her

criminal conviction, because the denial of her motion would not

result in a "gross miscarriage of justice." See Matter of C-, 8 I.

& N. Dec. 611, 615 (BIA 1960).

After the BIA dismissed her appeal, Bolieiro timely

petitioned for our review.

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 II.

Our review of the agency's denial of a motion to

reconsider or reopen is for abuse of discretion. Martinez-Lopez v.

Holder, 704 F.3d 169, 171 (1st Cir. 2013) (reconsideration); Aponte

v. Holder, 683 F.3d 6, 10 (1st Cir. 2012) (reopening). A denial of

a motion to reopen is an abuse of discretion if "'the [agency]

committed an error of law or exercised its judgment in an

arbitrary, capricious, or irrational way.'" Bead v. Holder, 703

F.3d 591, 593 (1st Cir. 2013) (quoting Raza v. Gonzales, 484 F.3d

125, 127 (1st Cir. 2007)). A denial of a motion to reconsider, for

its part, is an abuse of discretion "only when the 'denial was made

without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'"

Martinez-Lopez v. Holder, 704 F.3d 169, 172 (1st Cir. 2013)

(quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003)).

We review questions of law de novo, "with deference given

'to the BIA's reasonable interpretations of statutes and

regulations falling within its purview.'" Aponte, 683 F.3d at 10

(quoting Matos–Santana v. Holder, 660 F.3d 91, 93 (1st Cir. 2011)).

The scope of our review encompasses "the BIA's decision as well as

any portions of the IJ's opinion adopted by the BIA." Peña–Beltre

v. Holder, 622 F.3d 57, 61 (1st Cir. 2010).

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A. Bolieiro's Motion to Reopen and the Applicability of the Post-
Departure Bar

1. Timeliness

Bolieiro argues primarily that the post-departure bar

conflicts with the plain language of the motion to reopen statute,

8 U.S.C. § 1229a(c)(7)(A). Our opinion in Perez Santana

exhaustively addresses that issue. There, we hold that the post-

departure bar cannot be used to preclude a noncitizen from

vindicating his statutory right to a motion to reopen. Id., slip

op. at 25-26. We will not repeat the analysis that led to that

holding here.3

But Bolieiro's case contains a wrinkle not present in

Perez Santana's. The instant motion to reopen seeks vacatur of a

removal order that was entered almost twenty years before the

motion was filed. The motion to reopen statute contains a temporal

limitation — "the motion to reopen shall be filed within 90 days of

3
As an additional justification for the post-departure bar's
validity, the government contends that the regulation is a
"categorical exercise of discretion," reflecting the agency's
judgment (possibly unreviewable) that it should not consider
motions to reopen filed by noncitizens who have left the country.
Setting aside the fact that the agency itself has not relied on
this rationale to justify the post-departure bar, an exercise of
discretion, categorical or otherwise, must remain consistent with
the agency's statutory authority. As our opinion in Perez-Santana
explains, the agency does not have the power to prevent a
noncitizen from exercising a right granted by the statute's plain
language. Stated differently, "[c]asting the post-departure bar as
categorical exercise of discretion . . . does not cure the fact
that it contravenes clear congressional intent." Contreras-
Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012) (en banc).

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the date of entry of a final administrative order of removal." 8

U.S.C. § 1229a(c)(7)(C)(i). Focusing on this provision, the

government contends that "there is no conflict between [the

immigration statute] and the Attorney General's regulation, where

Bolieiro's motions were untimely." The government suggests that

because of its tardiness, Bolieiro's motion falls outside of the

statute's scope and thus "ha[s] no statutory footing."

Accordingly, the argument goes, the motion must be construed as an

appeal to the agency's sua sponte authority to reopen proceedings

at any time. See 8 C.F.R. § 1003.2(a) ("The Board may at any time

reopen or reconsider on its own motion any case in which it has

rendered a decision."); id. § 1003.23(b)(1) (analogous regulation

for IJs).

Because the agency's power to reopen proceedings sua

sponte is not codified in statute and operates purely as a creature

of agency discretion, see Matos-Santana, 660 F.3d at 94, the

government further contends that even if the post-departure bar

cannot prevent a noncitizen from filing a motion to reopen pursuant

to the statute, the agency retains the ability to apply the post-

departure bar to any motion that falls outside the statute.

Several of our sister circuits have adopted this rule, despite also

holding that the post-departure bar cannot be applied to

noncitizens invoking their statutory reopening rights. Compare

Perez-Santana, slip op. at 10 (collecting circuit opinions), with

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Ovalles v. Holder, 577 F.3d 288, 295-96 (5th Cir. 2009) (holding

that post-departure bar may be applied to untimely motion to

reopen, since such motion "invokes statutory provisions that offer

him no relief"); see also Desai v. Att'y Gen., 695 F.3d 267, 270-71

(3d Cir. 2012) (stating that previous holding that post-departure

bar conflicted with motion to reopen statute "does not extend to

cases like this one, where neither that statutory right nor

congressional intent is implicated"); Zhang v. Holder, 617 F.3d

650, 661 (2d Cir. 2010) (stating that agency retains "the authority

to limit that jurisdiction and define [sua sponte reopening's]

contours through, among other things, the departure bar").

Whatever the merits of this argument, we cannot address

it here. Under well-settled principles of administrative law, we

must accept or reject the agency's decision based on the rationale

the agency provides. See Wiratama v. Mukasey, 538 F.3d 1, 6 (1st

Cir. 2008) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

While alternative grounds for affirming the agency's decision may

be evident in the record, a court may not substitute its own

rationale to justify the agency's conclusion. See Pina v. Mukasey,

542 F.3d 5, 12 n.7 (1st Cir. 2008) (stating that because "the BIA

did not address that issue, . . . we may not conduct our own de

novo inquiry" (citing INS v. Ventura, 537 U.S. 12, 16 (2002)).

Thus, the proper way to handle an agency error in the ordinary

circumstance "'is to remand to the agency for additional

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investigation or explanation.'" Ventura, 537 U.S. at 16 (quoting

Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). This

principle is known as the "ordinary remand rule." See

Castaneda-Castillo v. Holder, 638 F.3d 354, 363 (1st Cir. 2011).

Here, the BIA's dismissal of Bolieiro's appeal was

premised on its application of the post-departure bar, as the

government acknowledged at oral argument. In applying the bar,

however, the BIA did not make a distinction between timely and

untimely motions to reopen. Instead, the agency enforced the

blanket rule that all such motions were barred "after the alien's

departure from the United States." In support of this conclusion,

the agency cited 8 C.F.R. § 10023.23(b)(1), which is the version of

the post-departure bar applicable to motions before the IJ, as well

as the BIA's precedent opinion in Matter of Armendarez-Mendez.

Neither the regulation nor Matter of Armendarez-Mendez

distinguishes between timely and untimely motions. The suggestion

that Bolieiro's motion stands on different "statutory footing" than

a timely motion appears nowhere in the BIA's analysis, or in the

authorities it relied upon to dismiss her appeal.4 If the agency

wishes to articulate a more nuanced basis for rejecting her motion

based upon her motion's untimeliness, it may do so, but we decline

4
Although the BIA's opinion does mention that Bolieiro's
motion was filed "long after the statutory deadline for seeking
reopening has passed," the BIA made that comment in the context of
rejecting her alternative due process-based argument.

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to supply that basis on the agency's behalf. See Halo v. Gonzales,

419 F.3d 15, 18-19 (1st Cir. 2005) ("[A] reviewing court . . . must

judge the propriety of [administrative] action solely by the

grounds invoked by the agency, and that basis must be set forth

with such clarity as to be understandable." (second alteration in

original) (citation and internal quotation marks omitted)).

To sum up, in the companion case of Perez Santana, we

reject the proposition that the post-departure bar precludes a

noncitizen who has departed the country from vindicating her

statutory right to seek reopening. As we have explained, given the

basis for the BIA's decision in this case, Bolieiro's and Perez

Santana's cases both present the same issue — whether the post-

departure bar can prevent a noncitizen from invoking his or her

statutory right to file a motion to reopen. We have concluded that

it cannot. Because we must evaluate the agency's refusal to

consider Bolieiro's petition upon the grounds that it has

proffered, and because the agency's refusal to consider her motion

rested on the same rationale as its refusal to consider Perez

Santana's, our holding in Perez Santana compels us to grant

Bolieiro's petition as well.5

5
As noted, the BIA's opinion also concluded that due process
does not require that Bolieiro's proceedings be reopened to address
the vacatur of the criminal conviction upon which her removal was
based. Bolieiro contests that determination on appeal as an
alternative to her challenge to the post-departure regulation.
Because we grant her petition on other grounds, we express no view
on the merits of her due process argument or her remaining

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 This holding should not be construed as a judgment on

whether Bolieiro's motion should be granted. We say only that the

agency's ground for refusing to consider her motion does not

withstand scrutiny. On remand, if the agency offers an alternative

basis for refusing to consider her motion, we will evaluate that

basis if and when the case returns to us.

2. Equitable Tolling

We do wish to correct a misapprehension on the part of

the government because it will be important on remand. Contrary to

the government's assertions, Bolieiro's motion does not seek to

invoke the agency's sua sponte authority to reopen proceedings, but

rather her statutory right to seek reopening. Although she

acknowledges that the motion was filed more than ninety days after

the entry of Bolieiro's order of deportation (indeed, almost twenty

years after), she contends that the time deadline should be

equitably tolled in order to permit her to file a motion to reopen.

"Equitable tolling applies 'as a matter of fairness where a [party]

has been prevented in some extraordinary way from exercising [her]

rights.'" Iavorski v. INS, 232 F.3d 124, 129 (2d Cir. 2000) (first

alteration in original) (quoting Johnson v. Nyack Hosp., 86 F.3d 8,

12 (2d Cir. 1996)). By excusing tardiness, the doctrine permits a

party to invoke the right that she would otherwise be unable to

access. In other words, by contending that equitable tolling

contentions.

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should excuse the untimeliness of her motion, Bolieiro's argument

is directed at her statutory right to file a motion to reopen, not

the agency's sua sponte authority to reopen proceedings. See Singh

v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) ("If an alien

qualifies for equitable tolling of the time and/or numerical

limitations on a motion to reopen, the motion is treated as if it

were the one the alien is statutorily entitled to file.");

Ortega-Marroquin v. Holder, 640 F.3d 814, 819 (8th Cir. 2011) ("To

fall within the scope of the motion-to-reopen statute, Ortega must

show that the filing deadline is subject to equitable tolling,

thereby excusing its lateness.").6

Thus, Bolieiro does in fact seek a statutory foothold for

her motion to reopen. This is not to say that Bolieiro's attempt

to invoke the statute will be successful, as we have not yet

decided whether equitable tolling applies to the statute's ninety-

day deadline, despite multiple opportunities to do so. See, e.g.,

Romer v. Holder, 663 F.3d 40, 43 (1st Cir. 2011); Neves v. Holder,

613 F.3d 30, 36 (1st Cir. 2010).7 It is also not clear that

6
Bolieiro sought sua sponte reopening of her proceedings as
well. This argument was clearly framed in the alternative,
however, and her primary contention was grounded in the statute.
7
Notably, every circuit that has addressed the issue thus far
has held that equitable tolling applies to either or both the time
and numerical limits to filing motions to reopen. See
Avila-Santoyo v. Att'y Gen., 713 F.3d 1357, 1362-64 (11th Cir.
2013) (en banc); Yuan Gao v. Mukasey, 519 F.3d 376, 377 (7th Cir.
2008); Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007);
Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004); Riley v. INS,

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Bolieiro would be entitled to equitable tolling of the deadline,

even assuming that the deadline could be tolled. See Jobe v. INS,

238 F.3d 96, 100 (1st Cir. 2001) (en banc) (setting forth five-

factor test used to determine entitlement to equitable tolling).

But the government fails to engage with her argument when it

contends that her motion necessarily falls outside the statute

simply because it is untimely. The agency should not make a

similar error on remand. Cf. Romer, 663 F.3d at 43 (remanding case

for failure to consider applicability of equitable tolling and

observing that agency "ignore[d] Romer's argument, ignore[d]

arguably applicable law, and cross[ed] the line from merely

deficient to plainly arbitrary").

B. Bolieiro's VAWA Claims

Bolieiro also sought to reopen her removal proceedings

under certain statutory provisions specific to survivors of

domestic violence, due to the abuse she had suffered at the hands

of her former U.S. citizen husband. Under VAWA, such individuals

may seek unique versions of adjustment of status and cancellation

of removal. Both of these forms of relief offer a pathway for

Bolieiro to obtain lawful permanent resident status. See 8 U.S.C.

§ 1154(a)(1) (permitting survivor of domestic violence to petition

on her own behalf, otherwise known as "self-petition," for

310 F.3d 1253, 1258 (10th Cir. 2002); Iavorski v. INS, 232 F.3d
124, 129-30 (2d Cir. 2000).

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adjustment of status); id. § 1229b(b) (setting forth requirements

for VAWA "special rule" cancellation); see also Hamilton v. Holder,

680 F.3d 1024, 1026 (8th Cir. 2012) (discussing VAWA cancellation);

Ochoa-Artega v. U.S. Att'y Gen., 364 Fed. App'x 614, 617 (11th Cir.

2010) (describing VAWA's self-petitioning processes).8 Different

procedural requirements govern motions to reopen to the extent that

the noncitizen seeks to obtain relief under VAWA. If the motion

seeks to reopen proceedings so that the movant can obtain relief

under VAWA, "[a]ny limitation . . . on the deadlines for filing [a

motion to reopen] shall not apply." 8 U.S.C.

§ 1229a(c)(7)(C)(iv)(I). The VAWA-specific provisions also require

that the movant be "physically present in the United States at the

time of filing the motion." Id. § 1229a(c)(7)(C)(iv)(IV).

Noting that she was within in the United States when she

filed her motion to reopen under the special rule, Bolieiro argues

that the post-departure bar is therefore inapplicable to her motion

to the extent it seeks relief under VAWA. The government responds

that Bolieiro was "physically present" in the country only because

she had reentered unlawfully after having been deported.

8
Bolieiro has not clearly specified which form of VAWA relief
she seeks, or if she seeks both. She has filed a VAWA self-
petition, which is a prerequisite to obtaining adjustment of
status. Her brief before us also suggests that she seeks
adjustment. But her motion to reconsider before the IJ contended
that she is "prima facie eligible for VAWA Cancellation of
Removal." As the particular form of VAWA relief Bolieiro seeks is
immaterial to this appeal, we leave this issue for the agency and
the parties to sort out on remand.

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Considering Bolieiro's motion, the government maintains, would

unjustly reward her for violating the law, and the statute should

not be read to permit such a result. The government also contends

that Bolieiro is ineligible for relief under VAWA, and that her

petition should be denied due to futility.

The BIA did not address any of these arguments, instead

citing the post-departure bar as its basis for refusing to consider

Bolieiro's motion. The BIA's opinion did not even mention the

motion's invocation of both the general provisions of the motion to

reopen statute, as well as those specific to individuals seeking

VAWA relief. The agency therefore failed to examine whether

Bolieiro's motion, to the extent it seeks reopening to obtain

relief under VAWA, may stand on different footing from her

invocation of the reopening statute's general provisions. Having

already decided that remand is warranted, we need not dive into

this VAWA thicket. Instead, we simply add those issues to the list

of arguments that the agency may consider on remand. See Campbell

v. Holder, 698 F.3d 29, 36 (1st Cir. 2012) ("[S]ince the Board did

not reach these issues, neither do we."); Guta-Tolossa v. Holder,

674 F.3d 57, 61 (1st Cir. 2012) ("Where a question is best resolved

by the agency in the first instance, or is left primarily in the

agency's hands by statute, and the agency has failed to address

that question, we generally must remand.").

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 Urging us to deny the petition nonetheless, the

government invokes the "rare circumstances" exception to the

ordinary remand rule, contending that Bolieiro has no viable

avenues to relief and that the outcome of her proceedings is

foregone. See Ventura, 537 U.S. at 16 ("[T]he proper course,

except in rare circumstances, is to remand to the agency for

additional investigation or explanation." (emphasis added)); see

also Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007)

(declining to remand case to BIA "[b]ecause the result of a remand

to the Board is a foregone conclusion such that remand would amount

to nothing more than a mere formality"). We offer no judgment on

the contours of this exception here, except to say that this case

falls beyond them. The government's futility arguments rely on

complicated legal and factual issues that have been neither

ventilated adequately before us, nor addressed by the agency.

Although we are not yet in a position to evaluate the merits of the

government's contentions, we cannot say that Bolieiro's attempts to

obtain relief are doomed. These circumstances counsel strongly in

favor of remand.

III.

For the reasons stated, we grant the petition for review,

vacate the order of the BIA, and remand for further proceedings

consistent with this opinion.

So ordered.

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