Case: 15-60004 Document: 00513391037 Page: 1 Date Filed: 02/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60004
United States Court of Appeals
Fifth Circuit
FILED
NADEEM ALI, also known as Inayal Sharif, February 22, 2016
Lyle W. Cayce
Petitioner Clerk
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
Before STEWART, Chief Judge, KING and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
This case concerns the proper procedures that the Department of
Homeland Security (“DHS”) must take to initiate removal proceedings against
an asylee who adjusted to lawful permanent resident (“LPR”) status. DHS
initiated removal proceedings in 2013 against Nadeem Ali, an alien who had
been granted asylum status in 1992 and later adjusted to LPR status. At Ali’s
removal hearing, the Immigration Judge (“IJ”) found that Ali’s asylum status
was terminated when he adjusted to LPR status and denied Ali’s renewed
application for asylum status. The Board of Immigration Appeals (“BIA”)
affirmed. Ali argues that his asylum status was not terminated when he
adjusted to LPR status and that, if it was, the IJ erred in denying his
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subsequent reapplication for asylum. Finding that the BIA did not address
relevant subsections of the Immigration Nationality Act (“INA”), 8 U.S.C.
§ 1151, et seq., DHS regulations, and previous BIA decisions, we remand for
the BIA to interpret the relevant INA provisions in the first instance.
I. BACKGROUND
Nadeem Ali, a native and citizen of Pakistan, entered the United States
in 1991 without a valid visa. DHS commenced exclusion proceedings against
Ali, who then filed for asylum on the basis of political persecution. An asylum
hearing was held in front of IJ Robert Brown. Ali presented evidence showing
he had been subject to political persecution in Pakistan as a member of the
People’s Party of Pakistan (“PPP”) and that he had been kidnapped and
tortured by the government in 1982 and then kidnapped and tortured by a rival
political party at different times between 1989 and 1991. At the close of the
hearing, IJ Brown granted Ali’s application for asylum, finding that Ali had
established past persecution and had a well-founded fear of future persecution.
In 1993, Ali adjusted to LPR status.
In 2013, Ali pleaded guilty to possession of a controlled substance
(cocaine) weighing less than one gram. Following the conviction, DHS
commenced removal proceedings against Ali under 8 U.S.C. § 1227(a)(2)(B)(i).
Hearings were initially held before IJ Saul Greenstein. IJ Greenstein first
postponed the proceedings to allow Ali to file an Application for Cancellation
of Removal for Certain Permanent Residents, which would allow him to avoid
removal proceedings as a LPR. At Ali’s next hearing, IJ Greenstein concluded
that Ali was not eligible for cancellation of removal under 8 U.S.C. § 1229b.
Without explaining whether Ali’s asylum status was terminated, IJ Greenstein
informed Ali that he could reapply for asylum in order to avoid removal. Ali
filed a new asylum application. IJ Greenstein held an additional hearing
where Ali introduced evidence including some of the evidence he presented in
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his 1992 hearing as well as his own testimony. At the close of evidence, IJ
Greenstein rendered an oral decision denying Ali’s reapplication for asylum.
IJ Greenstein noted that IJ Brown had found Ali’s 1992 testimony
credible. However, he held that, because the REAL ID Act of 2005 had been
enacted in the intervening period and altered the standard for credibility
determinations, he needed to conduct a de novo credibility analysis of Ali’s
evidence and testimony. IJ Greenstein found that Ali was not credible because
his accounts of how many times and how long he was detained in Pakistan
were not consistent with his 1992 testimony. On the basis of these
inconsistencies, IJ Greenstein did not credit Ali’s testimony and held that Ali
had not established a well-founded fear of persecution. IJ Greenstein also
noted that Ali’s political party, the PPP, was now in control of Pakistan’s
government and that Ali had returned to Pakistan without harm in 1994 and
in 2007. Consequently, IJ Greenstein denied Ali’s reapplication for asylum
and his applications for withholding of removal under § 1231(b)(3) of the INA
and the Convention Against Torture.
Ali appealed IJ Greenstein’s determination to the BIA. The BIA held
that under 8 U.S.C. § 1158(c), 8 C.F.R. § 1208.22, and a previous BIA decision,
Matter of V-X-, 26 I. & N. Dec. 147 (BIA 2013), asylum status had to be
terminated before removal could occur. Because IJ Greenstein never
determined whether Ali’s asylum status was terminated, the BIA remanded
for further proceedings on that issue. On remand, IJ Greenstein found it
unnecessary to conduct further proceedings on Ali’s asylum status because a
decision issued by the BIA following IJ Greenstein’s ruling, Matter of C-J-H-,
26 I. & N. Dec. 284, 285 (BIA 2014), “[made] clear that [Ali] no longer qualified
as an asylee, as he had become a lawful permanent resident [so] [Ali]’s asylee
status no longer need[ed] to be terminated.” IJ Greenstein held that the issue
of Ali’s asylum status “was mooted” because the BIA concluded in C-J-H- that
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aliens “no longer qualify” as asylees once they adjust to LPR status. IJ
Greenstein certified the case back to the BIA to issue a decision on the merits.
The BIA decided the certified appeal on December 5, 2014. The BIA
found that, under C-J-H-, aliens no longer qualify as asylees after they adjust
to LPR status. The BIA then rejected the argument that IJ Greenstein was
collaterally estopped from making new findings on past persecution or
credibility, reasoning that the legal standard governing credibility
determinations had changed with the passage of the REAL ID Act and that IJ
Brown had not adjudicated Ali’s credibility. The BIA found that IJ
Greenstein’s credibility determination was not “clearly erroneous,” concluded
that Ali was not eligible for asylum, and dismissed his appeal. Ali timely
petitioned for review in this court. He argues that the plain language of 8
U.S.C. § 1158(c) prohibits him from being removed without termination of his
asylum status and that adjustment to LPR status does not terminate asylum
status. In the event that we agree with the BIA’s holding in C-J-H- and Ali’s
case, Ali argues that the doctrine of collateral estoppel applies to his renewed
application for asylum such that IJ Greenstein was bound by IJ Brown’s
favorable determination. Ali also argues that IJ Greenstein erred in finding
that he was not credible.
II. DISCUSSION
Ali’s primary argument is that the BIA erred in applying C-J-H- and
holding that Ali’s asylum status was terminated when he adjusted to LPR
status and, as a result, his asylum status did not need to be terminated to begin
removal proceedings. While we normally give Chevron deference to the BIA’s
interpretation of the INA, in this case, we remand for the BIA to exercise its
Chevron discretion in the first instance.
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A. Standard of Review
Issues of law determined by the BIA are generally reviewed “de novo
unless a [legal] conclusion embodies the [BIA]’s interpretation of an ambiguous
provision of a statute that it administers; a conclusion of the latter type is
entitled to the deference prescribed by Chevron U.S.A. Inc. v. Natural
Resources Defense Council, [467 U.S. 837 (1984)].” Singh v. Gonzales, 436 F.3d
484, 487 (5th Cir. 2006) (footnote omitted). Generally, the BIA is entitled to
Chevron deference when it interprets a statutory provision of the INA and
gives the statute “concrete meaning through a process of case-by-case
adjudication.” I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (quoting
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 448–49 (1987)). We do not accord
Chevron deference to a non-precedential opinion of the BIA. Dhuka v. Holder,
716 F.3d 149, 156 (5th Cir. 2013). However, when the BIA issues a holding
that relies on a precedential case, we do accord Chevron deference to such a
holding. 1 See Rodriguez-Avalos v. Holder, 788 F.3d 444, 453, & 449 n.8 (5th
Cir. 2015).
Although Ali’s case was not designated as precedential by the BIA, the
BIA relied on C-J-H-, which is a precedential BIA decision. In Ali’s case, the
BIA asserted that under C-J-H- “aliens whose status was adjusted from asylee
to lawful permanent resident no longer qualify as asylees.” The BIA relied on
two statements from C-J-H-: (1) “Once [petitioner] became a lawful permanent
resident, he no longer had the status of an asylee” and (2) “[w]e conclude that,
like refugees, aliens whose status was adjusted from asylee to lawful
permanent resident status no longer qualify as asylees.” Matter of C-J-H-, 26
I. & N. Dec. at 285. Because C-J-H- is precedential, we apply Chevron to the
1 Under 8 C.F.R. § 1003.1(g), the agency designates certain three-judge-panel BIA
decisions precedential. See Dhuka, 716 F.3d at 155–56.
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BIA’s interpretation of the INA that adjustment to LPR status terminates
asylum status. Thus, we first determine if the INA leaves open whether an
asylee’s adjustment to LPR status terminates his asylum status. See Chevron,
467 U.S. at 842–43. When determining whether a statute is ambiguous, we
“employ the traditional tools of statutory interpretation.” Lari v. Holder, 697
F.3d 273, 278 (5th Cir. 2012). “Chief among these, of course, is the ‘plain
language of the statute.’” Id. (quoting Khalid v. Holder, 655 F.3d 363, 366 (5th
Cir.2011)). We begin by looking at the text of the INA, specifically §§ 1158(c)
and 1159(b).
B. 8 U.S.C. §§ 1158(c) and 1159(b)
Ali contends that § 1158(c) is clear and unambiguous and prescribes both
that an alien granted asylum status cannot be removed unless his asylum
status is terminated and that asylum status is not terminated when an asylee
adjusts to LPR status under § 1159(b). 2 The Government, however, contends
that § 1159(b), which defines when an aslyee can adjust from asylum status to
LPR status, clearly and unambiguously establishes that such an adjustment
terminates an alien’s asylum status. We conclude that both of these
subsections are relevant to the BIA’s assertion that adjustment to LPR status
terminates an alien’s asylum status.
Section 1158 (c) states:
(1) In general, [i]n the case of an alien granted asylum under
subsection (b) of this section, the Attorney General—
(A) shall not remove or return the alien to the alien's country of
nationality or, in the case of a person having no nationality, the
country of the alien's last habitual residence; . . .
2 In Ali’s case the BIA first asserted that under C-J-H-, adjustment to LPR status
terminates an alien’s asylum status. Because we remand for the BIA to properly exercise its
discretion to interpret the INA to reach this or the contrary conclusion, we do not address the
reasonableness of the BIA’s specific holding that relies on this legal assertion, that Ali’s
asylum status does not need to be terminated before removal proceedings begin.
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(2) Asylum granted under subsection (b) of this section does not
convey a right to remain permanently in the United States, and
may be terminated if the Attorney General determines that . . .
(3) An alien described in paragraph (2) is subject to any applicable
grounds of inadmissibility or deportability under section 1182(a)
and 1227(a) of this title, and the alien's removal or return shall be
directed by the Attorney General in accordance with sections
1229a and 1231 of this title.
Under § 1158(c)(2), the Attorney General can terminate an alien’s
asylum status for five listed reasons. These termination grounds do not
include an asylee’s adjustment to LPR status under § 1159(b). This absence
leads Ali to conclude that adjusting to LPR status does not terminate asylum
status. However, when determining whether the language of a statute is clear
and unambiguous we must also consider “the broader context of the statute as
a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Considering
that broader context, § 1159(b) also informs whether Congress left open
whether adjustment to LPR status terminates asylum status.
Section 1159(b) allows the Attorney General or the Secretary of
Homeland Security to “adjust to the status of an alien lawfully admitted for
permanent residence the status of any alien granted asylum who” meets all of
five listed requirements. Section 1159(b) further states, “Upon approval of an
application under this subsection, the Secretary of Homeland Security or the
Attorney General shall establish a record of the alien’s admission for lawful
permanent residence as of the date one year before the date of the approval of
the application.”
Section 1158(c)(2) could reasonably be read as an exhaustive list of
termination grounds, such that termination of asylum status can only be
achieved through one of the listed reasons. However, a reasonable
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interpretation of 1159(b) is that an adjustment to LPR status entails a change
in status—from asylee to LPR. This “adjustment” to another status could thus
“terminate” an alien’s asylum status. Given the inconsistencies between the
reasonable interpretations of the two relevant subsections of the INA, we find
that Congress left open whether adjustment to LPR status under § 1159(b)
terminates asylum status. See Rodriguez-Avalos, 788 F.3d at 453 (“[T]he
‘interplay of the statutory language’ at issue here is ambiguous and subject to
multiple possible interpretations.” (quoting Duron-Ortiz v. Holder, 698 F.3d
523, 527 (7th Cir. 2012))).
C. Reasonability and Chevron Discretion
Because we have concluded that Congress has not resolved whether
adjustment to LPR status terminates an alien’s asylum status, we next
consider whether the BIA’s assertion that LPR status terminates asylum
status is reasonable under Chevron step two. See Chevron, 467 U.S. at 843–
44. However, when the BIA has not yet exercised its Chevron discretion to
interpret the statute in question, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation.” Negusie v. Holder, 555 U.S. 511, 523 (2009) (quoting Gonzalez v.
Thomas, 547 U.S. 183, 186 (2006) (quoting I.N.S. v. Orlando Ventura, 537 U.S.
12, 16 (2002))). In Negusie, the Supreme Court remanded to the BIA “for its
initial determination of the statutory interpretation question and its
application to this case” because the BIA relied on a case that was not
controlling. 3 Id. at 523–25. In C-J-H-, the BIA relied on non-controlling case
3 Other circuits have remanded to the BIA for elaboration in circumstances similar to
Ali’s case. See Velerio-Ramirez v. Lynch, 808 F.3d 111, 112–13 (1st Cir. 2015) (noting that
the BIA incorrectly relied on a statute with different language and did not make reference to
the correct statutory provision and stating, “[i]nconsistent characterization of the governing
law by the immigration authorities and insufficient analysis by the [BIA] lead us, in an
abundance of caution, to remand this petition to the BIA”); Lawl v. U.S. Attorney Gen., 710
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law that addressed the relationship between refugee status and LPR status
and did not address the asylum termination grounds listed in § 1158(c); thus,
we conclude that the BIA did not exercise its Chevron discretion because it did
not fully consider the statutory question presented here, and we remand in
accordance with Negusie.
The BIA’s assertion in C-J-H- that an alien’s asylum status is
terminated upon adjustment to LPR status involves the interpretation of a
statute that is ambiguous as to this issue. However, in making this assertion,
the BIA made no mention of 8 U.S.C. § 1158(c)—even though it would seem
necessary to interpret this subsection in order to conclude that adjusting to
LPR status terminates asylum status. In addition to making no mention of
§ 1158(c), the BIA did not analyze DHS regulations that suggest that LPR
status may not terminate asylum status. Instead, the BIA relied on previous
BIA and federal court interpretations of INA provisions related to refugees
without acknowledging significant differences between asylees and refugees
provided in the INA and DHS regulations.
In C-J-H-, the BIA made no mention of the asylum termination grounds
provided in § 1158(c)(2). The BIA held that an asylee who adjusted to LPR
status could not readjust to LPR status under § 1159(b) during deportation
proceedings. 26 I. & N. Dec. at 286–87. In reaching this holding, the BIA relied
solely on case law that addressed whether refugees who had adjusted to LPR
status could readjust under § 1159(b). Id. The BIA also relied on its assertion
F.3d 1288, 1292–94 (11th Cir. 2013) (recognizing the inconsistency between BIA
interpretations, the immigration statutes, and regulations and, thus, remanding to the BIA);
Sandoval v. Holder, 641 F.3d 982, 988 (8th Cir. 2011) (remanding and noting “[w]hile this
court is prepared to give deference to the agency’s reasonable interpretation of the statute,
in this case such interpretation is simply missing”); Isidro-Zamorano v. Holder, 365 F. App’x
846, 847 (9th Cir. 2010) (remanding because the BIA applied BIA precedent that was “not
determinative” and thus did not exercise its Chevron discretion).
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that “[o]nce [the asylee] became a lawful permanent resident, he no longer had
the status of an asylee.” See id. at 285. However, the BIA made that assertion
by relying on the same refugee case law. The BIA cited In re Smriko, 23 I. &
N. Dec. 836, 841 (BIA 2005)—a case that it recognized “held that a refugee
admitted as a lawful permanent resident is subject to removability even
though his refugee status has not been terminated.” C-J-H, 26 I. & N. Dec. at
285; see Romanishyn v. Attorney Gen. of U.S., 455 F.3d 175, 183 (3rd Cir. 2006)
(“[T]he Board so held, [in Smriko,] not because it believed the acquisition of
LPR status itself ‘terminated’ refugee status, but because refugee status never
provided absolute exemption from removal in the first place.”). In C-J-H-, the
BIA extended the Smriko holding and concluded that refugees who adjust to
LPR status do not retain refugee status. 26 I. & N. Dec. at 285. Moreover,
Smriko did not control the BIA’s decision in C-J-H- because it interpreted INA
provisions relating to refugees—a distinction only briefly addressed by the BIA
in C-J-H-. 4
In C-J-H-, the BIA equated refugees and asylees in the context of
readjustment under § 1159(b). The only difference the BIA acknowledged
between the two types of aliens was that § 1159(a) expressly prohibits refugees
who have adjusted to LPR status from readjustment under that subsection;
however, § 1159(b) does not contain the same prohibition for asylees who have
adjusted to LPR status. C-J-H-, 26 I. & N. Dec. at 285. The BIA adopted the
Ninth Circuit’s conclusion in Robleto-Pastora v. Holder that the language of
§ 1159(b) is plain and that “[t]he legislative history [of the Refugee Act] shows
4 The BIA also cited a Seventh Circuit case, Gutnik v. Gonzales, 469 F.3d 683, 692
(7th Cir. 2006), which held that refugees who adjust to LPR status are ineligible to apply for
a waiver of inadmissibility because they do not retain refugee status once they adjust to LPR
status. Gutnik is the only case the BIA cited in C-J-H- that explicitly asserts that LPR status
terminates refugee status. See 26 I. & N. Dec. at 285. Again, this case only interpreted INA
provisions relating to refugees.
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that Congress saw asylees and refugees as having similar status under the
law.” C-J-H-, 26 I. & N. Dec. at 286–87 (second alteration in original) (quoting
Robleto-Pastora v. Holder, 591 F.3d 1051, 1060 (9th Cir. 2010)). Notably,
although the Ninth Circuit addressed the differences between asylees and
refugees in relation to § 1159(a) and (b), the court did not address whether
adjustment under § 1159(b) terminates asylum status. Robleto-Pastora, 591
F.3d at 1059 (“Without deciding and regardless of whether [the petitioner]
simultaneously holds asylee and LPR status, we conclude that he is ineligible
for relief from removal under section 209 of the INA, 8 U.S.C. § 1159, and that
his petition must therefore be denied.”). Therefore, the Ninth Circuit also did
not interpret § 1158(c).
In C-J-H-, the BIA did not address significant differences between
refugees and asylees as provided in the INA. As noted above, § 1158(c)(2)
provides a possibly exhaustive list of grounds for termination of an alien’s
asylum status. Additionally, as recognized by the BIA in Smriko, § 1159(a)
and its implementing regulation, 8 C.F.R. § 209.1, require aliens admitted as
refugees to apply for adjustment to LPR status after being present in the
United States for one year. 23 I. & N. Dec. at 839. If the application is denied
or a refugee does not timely file the application, he will be susceptible to
removal proceedings. See id. In Smriko, the BIA emphasized that under these
mandatory provisions, an alien’s refugee status does not need to be terminated
to begin removal proceedings and consequently refugees that have adjusted to
LPR status can be removed without termination of refugee status. Id. at 839–
40. For the BIA to properly exercise its Chevron discretion by relying on
refugee case law to hold that adjustment to LPR status also terminates an
alien’s asylum status, it must address these differences.
In C-J-H-, the BIA also failed to acknowledge BIA precedent and several
DHS regulations that suggest that an asylee maintains asylum status even
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after an asylee adjusts to LPR status. In Matter of V-X-, the BIA recognized
that “the statutory grounds for termination of asylum status are narrower than
the grounds of removability” and referenced the list provided in § 1158(c)(2) as
the grounds for termination. 5 26 I. & N. Dec. at 149 (emphasis omitted). In
addition, 8 C.F.R. § 1208.14(g) specifically allows asylum applicants to seek
adjudication of their asylum status, even after being granted LPR status:
If an asylum applicant is granted adjustment of status to lawful
permanent resident, the Service may provide written notice to the
applicant that his or her asylum application will be presumed
abandoned and dismissed without prejudice, unless the applicant
submits a written request within 30 days of the notice, that the
asylum application be adjudicated. 6
Finally, the BIA also did not address the legislative history of § 1158(c).
As recognized by the Supreme Court in Negusie: “[O]ne of Congress’ primary
purposes’ in passing the Refugee Act was to implement the principles agreed
to in the 1967 United Nations Protocol Relating to the Status of Refugees . . .
as well as the [1951] United Nations Convention Relating to the Status of
Refugees.” 555 U.S. at 520 (citations omitted). Notably, the termination
grounds found in § 1158(c)(2) are consistent with the six grounds for cessation
of refugee status enumerated under Articles 1(C) and 1(F) of the 1951
Convention, and paragraph 116 of the United Nations High Commissioner of
Refugees Handbook on Procedures and Criteria for Determining Refugee
5 We recognize that the asylee in Matter of V-X- had not adjusted to LPR status. 26 I.
& N. Dec. at 148. However, when the BIA first heard Ali’s case, it remanded for the IJ to
terminate Ali’s asylum status under § 1158(c) in part due to Matter of V-X-.
6 Ali also highlights that asylees who have converted to LPR status maintain certain
benefits only available to asylees under 8 C.F.R. § 223.1(b) and 8 C.F.R. § 207.7. The
petitioner in Smriko pointed to similar regulations that apply to refugees who have adjusted
to LPR status, and the BIA held that such benefits did not “shield[] [a refugee who adjusted
to LPR status] from placement in removal proceedings.” 23 I. & N. Dec. at 841–42. The BIA
did not address whether these regulations conflict with the assertion that adjustment to LPR
status terminates an alien’s asylum or refugee status.
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Status (Geneva 1972) notes that this list is “exhaustively enumerated.” 7 Given
that the BIA’s assertion may be contrary to DHS implementing regulations,
that the BIA only relied on refugee case law without addressing significant
differences between the two statuses, and that the BIA provided no statutory
interpretation of 8 U.S.C. § 1158(c), we find that the BIA did not give “full
consideration of the statutory question here presented.” See Negusie, 555 U.S.
at 521.
We conclude this discussion by recognizing the importance of the BIA’s
assertion. In 2013, 42,235 asylees were granted LPR status. 8 Office of
Immigration Statistics, 2013 Yearbook of Immigration Statistics, at 18 (August
2014). 9 But, as acknowledged by the Government in its supplemental brief,
DHS “does not advise asylees of the potential consequences of adjusting” to
LPR status—that, in the Government’s view, they will be eligible for removal
proceedings under § 1227 without their asylum status having to be terminated
under § 1158(c). The Supreme Court has recognized that deference to the BIA
in immigration matters is particularly appropriate given that immigration
officers “exercise especially sensitive political functions that implicate
questions of foreign relations.” I.N.S. v. Abdudu, 485 U.S. 94, 110 (1988).
Recognizing this importance, we remand for the BIA to exercise its Chevron
discretion to determine whether adjustment to LPR status terminates an
7 As noted by amici curie, the Supreme Court has stated that the UNHCR Handbook
“provides significant guidance in construing the Protocol, to which Congress sought to
conform.” Cardoza-Fonseca, 480 U.S. at 439 n.22.
8 Prior to the passage of the REAL ID Act in 2005, the INA limited the annual number
of asylees authorized to adjust to LPR status to 10,000. Office of Immigration Statistics,
Annual Flow Report, U.S. Lawful Permanent Residents: 2006, at 1 (March 2007), available
at https://www.dhs.gov/sites/default/files/publications/IS-4496_LPRFlowReport_04vaccess
ible.pdf.
9 Available at http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf.
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alien’s asylum status. 10 How the agency considers the interplay between
§ 1158(c) and § 1159(b) of the INA, the regulatory provisions presented above,
the distinctions between refugees and asylees, and the legislative history “may
have relevance in determining whether its statutory interpretation is a
permissible one.” Negusie, 555 U.S. at 519.
III. CONCLUSION
When affirming IJ Greenstein’s assertion that Ali’s LPR status
terminated his asylum status, and as a result, Ali’s deportation proceedings
could commence without termination of his asylum status, the BIA relied on
its precedential decision, C-J-H-. Because the BIA failed to address and
interpret relevant provisions of the INA, including § 1158(c), it did not exercise
its Chevron discretion in C-J-H-. We VACATE the BIA’s decision and
REMAND for the BIA to do so in the first instance. After the BIA issues its
decision in accordance with this opinion, if further review is sought by either
party, the Clerk of this Court is instructed to refer this matter to this panel for
such further review.
10 This court has expressed a desire to avoid giving the BIA a third chance to properly
interpret a statute. See Siwe v. Holder, 742 F.3d 603, 612 (5th Cir. 2014) (“Ventura does not
mandate that we now remand this issue to afford the BIA ‘a third bite at [the] apple.’”
(alteration in original) (quoting Zhu v. Gonzales, 493 F.3d 588, 602 (5th Cir. 2007))).
However, in those cases, this court had already instructed the BIA to perform such an
analysis. See id. Although the BIA had the opportunity to interpret § 1158(c) in both C-J-H-
and Ali’s case, the BIA simply relied on refugee case law without any earlier guidance or
inquiry from this court. Given the importance of the interpretation at issue in this case, we
believe remand is appropriate. See Sandoval, 641 F.3d at 988 (“In affording the agency the
third opportunity to consider Sandoval’s argument, we might be treading close to
transforming judicial review into a ‘ping-pong game of sorts.’ We do so, however, because we
believe ‘[i]t will not do for a court to be compelled to guess at the theory underlying the
agency’s action; nor can a court be expected to chisel that which must be precise from what
the agency has left vague and indecisive.’” (alterations in original) (citations omitted)).
14