Larngar v. Holder

United States Court of Appeals
For the First Circuit

No. 07-2168

MCCARTHY LARNGAR,

Petitioner,

v.

ERIC H. HOLDER, JR.,* Attorney General,

Respondent.

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

Before

Torruella, Stahl and Howard,
Circuit Judges.

Randy Olen, for petitioner.
Gregory G. Katsas, Assistant Attorney General, Terri J.
Scadron, Assistant Director, and Anthony W. Norwood, Senior
Litigation Counsel, Office of Immigration Litigation, United States
Department of Justice, Civil Division, on brief for respondent.

April 6, 2009

*
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is
substituted for former Attorney General Michael B. Mukasey as the
respondent herein.
 HOWARD, Circuit Judge. The central question in this case

is whether we have jurisdiction to review the denial of the

petitioner's untimely motion to reopen his removal proceedings.

The Board of Immigration Appeals (BIA) denied the motion

to reopen after determining that the petitioner McCarthy Larngar,

who is an aggravated felon, failed to demonstrate changed country

circumstances that would excuse his untimely filing, and failed to

establish a prima facie case of eligibility for the relief he was

seeking -- protection under the Convention Against Torture. The

government contends that the BIA's determination on the changed

circumstances issue is factual in nature and that we lack

jurisdiction to review such determinations in cases involving

aggravated felons. See 8 U.S.C. § 1252(a)(2)(C),(D) (limiting our

jurisdiction in such cases to review of constitutional claims or

questions of law).

After careful consideration, we remand to the BIA for

further consideration.

I. Facts

A. Background

McCarthy Larngar is a native and citizen of Liberia. He

entered the United States in 1982 at the age of seven and has

remained here since. In 1997, Larngar was convicted in Rhode

Island state court of carrying a handgun without a license and

assaulting a person with a dangerous weapon, the latter qualifying

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as an "aggravated felony" as defined by 8 U.S.C. § 1101(A)(43)(F).

The victim of the assault, Ashford Peal, is also a Liberian

citizen.

For his crimes, Larngar was sentenced in 1998 to twenty

years imprisonment, twelve of which were to be served. Removal

proceedings were initiated in 2001, charging Larngar with

removability on the basis of his aggravated felony conviction. 8

U.S.C. § 1227(a)(2)(a)(iii). Larngar conceded removability and

sought relief from removal under the Convention Against Torture

(CAT). In support of his CAT application, Larngar testified that

a number of his relatives had been either persecuted or killed in

Liberia and that his grandfather had been granted asylum in the

United States. The IJ determined that Larngar failed to carry his

burden under the CAT. In December 2002, the BIA affirmed the IJ's

decision and dismissed Larngar's appeal.

Over four years later, in January 2007, Larngar filed a

motion to reopen with the BIA. Because the motion to reopen was

untimely -- under 8 C.F.R. § 1003.2(c)(2) such motions must be

filed within ninety days of the issuance of the final

administrative decision in the case -- Larngar relied on the

exception to the timeliness requirement provided by 8 C.F.R. §

1003.2(c)(3)(ii). This exception serves to excuse a late filing if

the applicant is able to establish "changed circumstances arising

in the country of nationality or in the country to which

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deportation has been ordered, if such evidence is material and was

not available and could not have been discovered or presented at

the previous hearing."

The "changed circumstance" Larngar identified in his

motion was the appointment of Ashford Peal, the victim of his

assault, to a position of authority in the Liberian government.

Specifically, in 2005, over two years after the BIA's final

administrative decision in Larngar's case, Peal had been appointed

the Deputy Director of the Special Security Service ("SSS") in

Liberia -- a "large, heavily armed executive protective force." In

support of his motion, Larngar submitted evidence that Peal had

repeatedly threatened Larngar with severe harm or death both prior

to and after his rise to power.1 Larngar contended that Peal's

ascension to a position of government authority was a changed

circumstance that materially affected his CAT claim because Peal

now had the capacity and resources to follow through on his

threats.

The BIA denied Larngar's motion, concluding that the

changed circumstances exception was inapplicable. Although

acknowledging that Larngar's motion to reopen was based on

previously unavailable evidence, the BIA determined that Larngar

had identified only a change in personal circumstances rather than

1
This evidence consisted of affidavits from Larngar, Larngar's
mother, and two members of the SSS itself.

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a change in country circumstances. The BIA reasoned that "[T]he

respondent's fear of torture or other harm arose as a result of his

personal circumstances in the United States. Namely, the victim of

the respondent's felonious assault wants revenge . . . a change in

the respondent's personal circumstances does not entitle him to

invoke the exception set forth in federal regulations at 8 C.F.R.

§ 1003.2(c)(3)(ii)."2

B. The second motion to reopen

In June 2007, Larngar filed a second motion to reopen --

the focus of this appeal. Because this motion was similarly

untimely, as well as being successive, the burden remained on

Larngar to establish the applicability of an exception. Again

relying on the changed country circumstances exception, Larngar

introduced the same evidence, reiterating the alleged threat that

Peal posed to him. But Larngar also identified an additional

change in Liberia -- Peal's reinstatement to his position as Deputy

Director of the SSS.3

2
Although this was the primary reason the BIA offered for denying
Larngar's motion to reopen, the Board also concluded that, had it
"considered the merits of [Larngar's] torture claim" it still would
have denied his motion. The BIA observed that Peal had recently
been suspended from his government position and that, as a result,
Larngar could not show that he would be tortured at the hands of
the Liberian government if returned to Liberia.
3
The nature of Peal's current position in the government of
Liberia, if any, is not before us.

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 The BIA again denied Larngar's motion to reopen.

Although acknowledging that Larngar's evidence established that

Peal had been reinstated to his government position, the BIA again

determined that Larngar failed to establish a change in country

circumstances arising in Liberia. In so determining, the BIA

relied on its previous decision denying Larngar's first motion to

reopen, reasoning that Larngar had merely identified a change in

personal circumstances and that such a change was insufficient to

qualify him under the changed country circumstances exception.

After determining that the exception was inapplicable,

the BIA also identified an additional reason for denying Larngar's

motion: "Moreover, the respondent's filing is insufficient to

support reopening on the likelihood of it being found 'more likely

than not' that the respondent would be tortured at the hands of a

government official if returned to Liberia." This timely petition

for review followed.

II. Discussion

"We review the BIA's denial of a motion to reopen under

a deferential abuse of discretion standard," Fustaguio do

Nascimento v. Mukasey, 549 F.3d 12, 15 (1st Cir. 2008), and

ordinarily we will uphold the denial "unless the complaining party

can show that the BIA committed an error of law or exercised its

judgment in an arbitrary, capricious, or irrational way," Raza v.

Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).

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 An applicant's ability to file a motion to reopen is

ordinarily limited both numerically and temporally. Fustaguio do

Nascimento, 549 F.3d at 15-16. An applicant may typically file

only one motion to reopen a removal proceeding and must file that

motion within ninety days of the issuance of the final

administrative decision in the case. Id. at 16. Nevertheless,

there are exceptions to these bars. See 8 C.F.R. § 1003.2(c)(3).

For example, the BIA may excuse a successive or late motion to

reopen if a petitioner can establish that changed circumstances

have arisen in the country of nationality or in the country to

which deportation has been ordered. Id. at § 1003.2(c)(3)(ii).

The evidence of changed circumstances must be material to the

underlying substantive relief that the petitioner is seeking and

must have been unavailable during the prior proceedings. Id.;

Raza, 484 F.3d at 127.

Even if a motion satisfies these procedural requirements,

or otherwise qualifies under an applicable exception, the BIA may

yet deny a motion to reopen if it determines that the movant has

not established a prima facie case of eligibility for the

substantive relief sought. INS v. Abudu, 485 U.S. 94, 104 (1988)

(recognizing three independent grounds for denying a motion to

reopen, including the movant's failure to establish a prima facie

case for the substantive relief sought); see also Shardar v. Att'y

Gen. of the United States, 503 F.3d 308, 313 (3d Cir. 2007)

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(observing that the requirement that a movant establish a prima

facie case for the substantive relief sought is a "substantive"

hurdle).

A. Changed circumstances

The first, and main, question is whether we have

jurisdiction to review the BIA's denial of Larngar's motion to

reopen. The government's sole argument is that we lack

jurisdiction in this case because the BIA's denial of Larngar's

motion to reopen rested on a purely factual determination,

specifically, that he failed to establish that changed

circumstances arising in Liberia excused the untimely and

successive filing of his motion to reopen.

We generally lack jurisdiction to review any final order

of removal against an alien who is removable because he committed

a "covered" criminal offense. Id. at § 1252(a)(2)(C). Among the

covered criminal offenses are aggravated felonies, id. at §

1227(a)(2)(A)(iii). Larngar concedes that he was convicted of an

aggravated felony.

Although our review is limited, we nevertheless retain

jurisdiction to consider constitutional claims or questions of law.

Conteh v. Gonzales, 461 F.3d 45, 63 (1st Cir. 2006) (noting that

the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), softens the

jurisdiction stripping provision of § 1252(a)(2)(C) by "allowing

review of constitutional claims or questions of law raised upon a

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petition for review filed with an appropriate court of appeals."

(citation and internal quotation marks omitted)). As stated, this

limited jurisdictional grant does not permit us to review claims

premised on alleged factual errors. Id.; see also Mehilli v.

Gonzales, 433 F.3d 86, 93 (1st Cir. 2005) ("Under the terms of [§

1252(a)(2)(D)'s] limited jurisdictional grant, 'discretionary or

factual determinations continue to fall outside the jurisdiction of

the courts of appeals'" (citation omitted)). Thus, in a case

involving a final order of removal of an alien who has committed a

covered criminal offense, the initial inquiry is whether we are

reviewing a claim that is premised on a constitutional or legal

determination by the BIA, or one that is premised on a factual

determination.

In arguing that the BIA's conclusion that Larngar failed

to establish a change in country circumstances was a factual

determination, the government relies primarily on Mehilli. In that

case, when discussing the REAL ID Act's limited jurisdiction grant,

we noted that the BIA's findings concerning "changed circumstances

are usually factual determinations." 433 F.3d at 93.4

4
The REAL ID Act's legislative history references a familiar
standard of review:
Factual questions include those questions that courts
would review under the "substantial evidence" or
242(b)(4)(B) [codified as 8 U.S.C. § 1252(b)(4)(B)]
standard, reversing only when a reasonable factfinder
would be compelled to conclude that the decision below
was erroneous.
H.R. Rep. No. 109-1268, at H2873 (2005).

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 Larngar opposes the government's characterization of the

BIA's determination. Citing Conteh, Larngar argues that to be

factual in nature, the BIA's determination about changed

circumstances must involve "factual findings as to credibility,

evidentiary weight, [or] satisfaction of a correctly framed burden

of proof." See Conteh, 461 F.3d at 44. According to the

petitioner, the BIA's determination in this case did not involve

any such factual findings.

The BIA concluded that Larngar failed to establish

changed country circumstances and thus did not qualify under the

exception for untimely motions to reopen. See 8 C.F.R. §

1003.2(c)(3)(ii). Although the BIA did not question the validity

of Larngar's proffer -- that Peal had risen to a position of power

in Liberia's government and threatened to harm or kill Larngar if

he returned to Liberia -- the Board nevertheless categorized this

showing as merely evidence of changed personal circumstances. A

change in personal circumstances, the BIA reasoned, is insufficient

to establish changed country circumstances. See Yuen Jin v.

Mukasey, 538 F.3d 143, 151 (2d Cir. 2008) ("[C]hanged personal

circumstances are insufficient to excuse an alien from the

procedural requirements of a motion to reopen.").

It appears as though the BIA effectively concluded that

Larngar failed to satisfy a "correctly framed burden of proof." It

is well-established that an applicant bears the burden of

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establishing changed country circumstances for purposes of §

1003.2(c)(3)(ii). Raza, 484 F.3d at 127. And here, the BIA

explicitly found that Larngar's proffer was insufficient to

establish changed circumstances arising in Liberia. See Conteh,

461 F.3d at 63. In this respect, this case is similar to Conteh,

in which we rejected the petitioner's argument that we had

jurisdiction to review the BIA's finding that he failed to satisfy

the criteria for withholding of removal. Id.; see also Hanan v.

Mukasey, 519 F.3d 760, 763 (8th Cir. 2008) ("Hanan's due process

argument primarily consists of his claim that the BIA incorrectly

found that [he] did not show changed circumstances to permit the

BIA to consider his untimely motion to reopen. We reject Hanan's

attempt to characterize a factual question as a constitutional

question.").

We note that some courts have made explicit that

appellate review of a BIA's finding that a party has failed to

establish changed country circumstances is for "substantial

evidence." See, e.g., Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

(2d Cir. 2008) ("Substantial record evidence clearly supports the

BIA's finding that [the petitioner] failed to demonstrate a

material change [of circumstances arising in China]."); see also

Saintha v. Mukasey, 516 F.3d 243, 249 (4th Cir. 2008) ("[W]e can

look to the standard of review we would apply if we were to have

jurisdiction to inform whether a given BIA determination is factual

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or legal in nature."). And, as we have observed, the REAL ID Act's

legislative history, in distinguishing factual questions from legal

ones, categorizes as factual "those questions that courts would

review under the 'substantial evidence'" standard. Fn. 4, supra.

Finally, as the government points out, in Mehilli we explained that

the BIA's findings concerning "changed circumstances are usually

factual determinations." 433 F.3d at 93.

Appearances, however, may be deceiving. Based upon our

review of the BIA's rationale for its decision, we are concerned

that the Board may have conflated its finding that Larngar's fear

of torture was self-induced with its conclusion that Peal's

ascension to a position of power in Liberia's government was a

change in Larngar's "personal circumstances."

Under the case law, a change typically will be

categorized as a change in personal circumstances, as opposed to a

change in country circumstances, if the change is self-induced.

Wei Guang Wang v. B.I.A., 437 F.3d 270, 273-74 (2d Cir. 2006)

(concluding that the BIA correctly held that the birth of the

petitioner's two children in the United States constituted "changed

personal circumstances" rather than changed country circumstances

because "self-induced" changes "cannot suffice" to show changed

country conditions); see also Ying Liu v. Att'y Gen. of the United

States, 555 F.3d. 145, 151 (3d Cir. 2009) (observing that an alien

can "control" a change in personal circumstances and giving

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marriage and the birth of children as examples of such changes); De

Hong Zheng v. Mukasey, 296 Fed. Appx. 141, 142 (2d Cir. 2008) ("It

is well-settled that a change in personal circumstances, such as

Zheng's newly commenced practice of Falun Gong, does not excuse the

time limit for filing a motion to reopen."); Haddad v. Gonzales,

437 F.3d 515, 517 (6th Cir. 2006) ("Haddad's divorce was a purely

personal change in circumstances that does not constitute changed

conditions or circumstances in Jordan."); Bin Zhao v. Gonzales, 440

F.3d 405, 407 (7th Cir. 2005).5

5
In each of the cases we have identified, the "self-induced"
change in personal circumstance also happened to arise outside the
country of nationality or the country to which deportation had been
ordered. See, e.g., Li Yong Zheng v. United States DOJ, 416 F.3d
129, 130-31 (2d Cir. 2005) (concluding that the BIA properly held
that § 1003.2(c)(3)(ii) did not apply because the petitioner
"alleged before the BIA no changed circumstances in China; rather
he claimed that his personal circumstances in the United States had
changed -- namely his wife had arrived here (illegally) and was
pregnant with their second child.").
Larngar latches onto this difference in contending that the
change at issue here cannot be categorized as a change in personal
circumstances. He notes, "[I]t should be obvious that the
appointment (and subsequent reinstatement) of Mr. Peal as Deputy
Director of the SSS in Liberia is a change in country conditions in
Liberia." (emphasis in original).
We think it likely, however, that the categorization of a
change as "personal" turns on the petitioner's responsibility for
the change rather than the location of the change. See Wei Guang
Wang, 437 F.3d at 274 (rejecting the petitioner's motion to reopen
his case based on changed country circumstances because the alleged
change was "entirely of his own making"). Accordingly, we assume
without deciding that even in cases where a change has arisen "in
the country of nationality or the country to which deportation has
been ordered" the change may nonetheless fail to qualify under §
1003.2(c)(3)(ii) because the change was self-induced.

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 That a change in personal circumstances should not

qualify as a change in country circumstances makes sense -- if the

rule were otherwise, applicants could move to reopen by changing

circumstances within their control. See Wei Guang Wang, 437 F.3d

at 270 ("[I]t would be ironic, indeed, if petitioners like Wang .

. . were permitted to have a second and third bite at the apple

simply because they managed to marry and have children.").

But it does not appear to us that anything about the

change that Larngar identifies -- Peal's ascension to power in

Liberia -- was self-induced. The evidence that Larngar has

submitted in support of his motion to reopen, makes plain that he

played no role in Peal's official ascension in Liberia.

The BIA's decision does not suggest otherwise, at least

with respect to Peal's officeholding. Rather, the BIA

characterizes Peal's ascension as a change in Larngar's personal

circumstances because Larngar was at least partially responsible

for the alleged threat that Peal posed to him. Quoting its

previous decision denying Larngar's first motion to reopen, the BIA

reasoned, "'[T]he respondent's fear of torture or other harm arose

as a result of his personal circumstances in the United States.

Namely, the victim of the respondent's felonious assault wants

revenge . . . a change in the respondent's personal circumstances

does not entitle him to invoke the exception set forth in federal

regulations at 8 C.F.R. § 1003.2(c)(3)(ii).'"

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 But the change that Larngar has identified in support of

his late motion to reopen is Peal's rise to a position of authority

in Liberia's government. To be sure, any motive Peal may have to

harm Larngar was created by Larngar himself. But it is not

accurate to characterize this as a "change" at all, much less a

change in personal circumstances. From the moment Larngar

assaulted Peal, Peal may have had an interest in seeking revenge.

Nothing has changed about that. What has changed is Peal's ability

to dispense this revenge through his official capacity, something

Larngar had and has no control over. See Shardar, 503 F.3d at 313

(determining that petitioner established a change in country

circumstances where he introduced evidence that a regime change in

the country of nationality materially affected his asylum claim).6

Nor does it appear that the BIA's categorization of the

change Larngar identifies as a change in personal circumstances

furthers the policy interest behind the personal circumstances rule

-- preventing applicants from orchestrating changes that serve

their self-interest. Given the alleged threats Peal had made

against Larngar's life prior to Peal's ascension to a position of

6
The parties have cited no administrative or judicial decisions,
and we have found none, barring the applicability of §
1003.2(c)(3)(ii) on the same or similar grounds as the Board used
here.

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government authority in Liberia, Peal's rise was directly contrary

to the petitioner's self-interest.7

Because of the BIA's apparent conflation of separate

inquiries, we are concerned that the Board may not have applied "a

properly framed burden of proof," see Conteh, 461 F.3d at 44

(emphasis added), when it impliedly concluded that, regardless of

whether the petitioner induced the changed circumstances or not, so

long as the petitioner originally induced the reason for his fear

of harm he cannot establish changed country circumstances. On this

record we are unable to discern whether the BIA, with a proper

understanding of what may constitute a change in country

circumstances, would have concluded that Larngar's showing was

insufficient to satisfy § 1003.2(c)(3)(ii)'s exception. We will

therefore vacate the denial of the motion to reopen, and remand so

that the Board may reevaluate Larngar's showing. Because, however,

the BIA also rested its denial of Larngar's motion to reopen on an

alternative ground -- his failure to make out a prima facie case

for relief under the CAT -- we will say a few words about that

ground.

7
The government does not directly address Larngar's argument that
the change he identifies constitutes a change in country
circumstances rather than a change in personal circumstances.
Instead, its only position appears to be that, however the BIA
categorized the change, its ultimate determination with respect to
changed circumstances was factual in nature and thus was insulated
from our review. As our analysis above indicates, we lack
confidence that the BIA applied a proper legal standard.

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 B. Prima facie case for eligibility under the CAT

Even where a party filing an untimely motion to reopen

can qualify under an exception that excuses the late filing, an

agency may still deny the motion if the evidence fails to

"establish a prima facie case sufficient to ground a claim of

eligibility for the underlying substantive relief." Raza, 484 F.3d

at 128; Jian Hui Shao, 546 F.3d at 168; Poniman v. Gonzales, 481

F.3d 1008, 1011 (8th Cir. 2007).

Here, Larngar is seeking relief under the CAT. As a

general matter, to establish eligibility for CAT protection, a

petitioner must show that it is more likely than not that he will

be tortured upon return to his country. Khan v. Mukasey, 549 F.3d

573, 575 n.2 (1st Cir. 2008). To establish a prima facie case for

relief under the CAT, however, the applicant need only produce

objective evidence showing a "reasonable likelihood" that he can

establish that he is more likely than not to be tortured. Sevoian

v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002); see also Romilus v.

Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004).8

In this case, the agency appears to have concluded --

independent of its analysis with respect to the existence of

8
We have described torture as: "(1) an act causing severe
physical or mental pain or suffering; (2) intentionally inflicted;
(3) for a proscribed purpose; (4) by or at the instigation of or
with the consent or acquiescence of a public official who has
custody or physical control of the victim; and (5) not arising from
lawful sanctions." Romilus, 385 F.3d at 8 (citations omitted).

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changed country circumstances -- that Larngar failed to establish

a prima facie case of eligibility for protection under the CAT.

Specifically, the BIA remarked that "the respondent's filing is

insufficient to support reopening on the likelihood of it being

found 'more likely than not' that the respondent would be tortured

at the hands of a government official if returned to Liberia."

This alternative and independently dispositive ruling again places

the jurisdictional issue at center stage.

In cases such as this one, where our jurisdiction is

limited to review of legal determinations, we have never explicitly

addressed whether the BIA's determination that an applicant has

failed to make out a prima facie case for substantive relief is

typically legal or factual in nature. Compare Mehilli, 433 F.3d at

93 ("changed circumstances are usually factual determinations.").

We strike a familiar refrain. Under Conteh, the question

of whether a party has established prima facie eligibility for

relief under the CAT could be characterized as, at bottom (and

reminiscent of our analysis of the first jurisdictional issue in

this case), a question about whether a party has satisfied a

"correctly framed burden of proof." See Conteh, 461 F.3d at 44;

EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 (1st

Cir. 1995) ("We agree with the district court that the EEOC carried

its burden of producing facts sufficient to limn the three elements

essential to its prima facie case.") (internal citation omitted));

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see also In re Grand Jury Proceedings, 417 F.3d 18, 22-23 (1st Cir.

2005) (describing a prima facie showing as "little more than a

showing of whatever is required to permit some inferential leap

sufficient to reach a particular outcome" (citing Black's Law

Dictionary 1228 (8th ed. 2004)); Thomas v. Att'y Gen. of the United

States, No. 07-3907, 2009 U.S. App. LEXIS 1362, at *8 (3d Cir.

Jan. 22, 2009) (unpublished) (noting the government's argument that

"whether the documentary evidence [an applicant] proffered

establishes prima facie eligibility . . . is purely a factual

determination . . . requir[ing] weighing and evaluation of the

evidence . . . [which is] reviewed under the substantial evidence

standard.").

Moreover, in the motion to reopen context, a number of

courts have reviewed BIA determinations that an applicant has

failed to establish prima facie eligibility for the substantive

relief sought under a "substantial evidence" standard of review.

The cases thus suggest that we lack jurisdiction in this context.

See Shardar, 503 F.3d at 313 ("[W]hen [the BIA] denies a motion to

reopen on the ground that the applicant has failed to make a prima

facie showing [of entitlement to the substantive relief sought], we

yet review that determination to ensure that it is supported by

substantial evidence") (emphasis added); Toufighi v. Mukasey, 538

F.3d 988, 997 (9th Cir. 2008) (concluding that the BIA's denial of

the applicant's motion to reopen because of, among other things,

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the applicant's failure to establish a prima facie case for asylum

was supported by "substantial evidence") (emphasis added); Poniman,

481 F.3d at 1012 (same); see also Gorvokovic v. Filip, No. 08-0463,

2009 U.S. App. LEXIS 1496, at *2 (2d Cir. Jan. 26, 2009)

(unpublished) ("[S]ubstantial evidence supports the BIA's

conclusion that [the petitioner] failed to establish prima facie

eligibility for . . . relief under the Convention Against Torture

('CAT').").

Ultimately, however, we will not resolve the question

here. Even if the BIA's determination that an applicant has failed

to make out a prima facie case for substantive relief is typically

a factual one, the BIA's treatment of this issue was so summary

that we hesitate to reach any conclusions based on this record.

Adding to our reluctance to reach this issue, we note that the

government does not rely on the BIA's alternative ruling as an

additional jurisdictional bar to our review. Nor has Larngar

briefed this jurisdictional question. The BIA is free, of course,

to take up this issue anew.

III. Conclusion

We therefore remand this matter to the BIA to consider,

consistent with this opinion, whether Larngar has established a

change in country circumstances that would excuse his late filing

or whether he has made out a prima facie case of eligibility for

protection under the CAT. So Ordered.

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