Xue Y. Ren v. Alberto R. Gonzales

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3512
X UE Y. R EN ,
Petitioner,
v.
A LBERTO R. G ONZALES ,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A79 573 057
____________
S UBMITTED J ANUARY 13, 2006—D ECIDED M ARCH 9, 2006
____________
Before POSNER , E ASTERBROOK , and E VANS , Circuit Judges.
P OSNER , Circuit Judge. Xue Ren was ordered removed
from the United States by an immigration judge after the
judge denied her request for asylum and other relief. The
Board of Immigration Appeals affirmed, and later denied
her motion to reopen the proceeding. After she filed a
petition in this court for review of the denial of the mo-
tion to reopen, the Justice Department moved us to re-
mand the case to the Board “for further consideration of
Petitioner’s requests for asylum, withholding of deportation
and Convention Against Torture protection in light

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2 No. 05-3512
of current country conditions in the People’s Republic of
China.” There was no further elaboration. The petitioner
indicated her agreement with the motion.
The Department’s motion, in part because of its extreme
brevity, raised questions in our mind. It was not a formal
confession of error; nor did it seem to be a motion to
remand for the limited purpose of considering the pos-
sible bearing of newly discovered evidence, because the
motion stated that, “if granted, [the motion] brings the
present matter on review to conclusion.” We were con-
cerned that if the Department was attempting to con-
fess error, its attempt was defective because its failure to
give reasons prevented us from evaluating the merits of
the confession. When the Department confesses error on
a federal district court, “our judicial obligations compel
us to examine independently the errors confessed.” Young
v. United States, 315 U.S. 257, 258-59 (1942). See also, e.g.,
Sibron v. New York, 392 U.S. 40, 58 (1968).
To allay our concerns, we invited the parties to file
supplemental memoranda addressing the following ques-
tions:
1. Whether the Board of Immigration Appeals has any
policy-making function under current law, or is in-
stead an adjudicatory body only.
2. Whether, if the Board acts as an adjudicator, the court
of appeals must exercise independent judgment in
response to a confession of error or equivalent request
for a remand, as it must in the case of a confession of
error by a district court. See, e.g., Young v. United States,
315 U.S. 257, 258-59 (1942); Sibron v. New York, 392 U.S.
40, 58 (1968).

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No. 05-3512 3
3. Whether, if the Attorney General determines that the
Board has made a mistake, he can instruct the Board to
reopen the proceeding, making a remand (or other
judicial action) unnecessary.
4. Whether the motion to remand in this case is a
confession of error.
The parties have filed their memoranda, and we can
now proceed to decide the Department’s motion.
As the Department explains in its memorandum (and the
petitioner agrees), the Board of Immigration Appeals does
not have authority to promulgate rules or policies other than
for its internal operations; it is indeed an adjudicatory body.
But it is an administrative body rather than a federal court,
and is entitled to the usual deference that reviewing courts
give such bodies; it is also entitled to the deference that
executive-branch agencies receive from courts with respect
to matters relating to the nation’s foreign relations. INS v.
Aguirre-Aguirre, 526 U.S. 415, 425 (1999). Deference in turn
implies a greater latitude for reconsideration than in the
case of district courts. Rather than confessing error, the
Department explains, it wants a remand in this case to
enable the Board of Immigration Appeals to conduct an
additional investigation, or attempt a fuller explanation,
concerning issues presented by the petitioner’s request for
relief. Remanding an agency proceeding in lieu of determin-
ing the merits of the challenge to it was commended by the
Supreme Court in Lawrence v. Chater, 516 U.S. 163, 165-74
(1996) (per curiam); see also Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985); Ford Motor Co. v. NLRB, 305
U.S. 364, 375-76 (1939); Citizens Against the Pellissippi
Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 416-17 (6th
Cir. 2004); Milk Train, Inc. v. Veneman, 310 F.3d 747, 755-56
(D.C. Cir. 2002); SKF USA Inc. v. United States, 254 F.3d 1022,

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4 No. 05-3512
1029-30 (Fed. Cir. 2001). An “agency may request a remand
(without confessing error) in order to reconsider its previous
position.” Id. at 1029. The courts of appeals have been
critical of recent decisions by the Board in asylum matters,
e.g., Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005),
and cases cited there; and it is natural that the Depart-
ment, without necessarily confessing error, should want the
Board to have an opportunity to reconsider some of
its asylum decisions in light of the emerging case law.
A further distinction between confession of error on a
district court and the remand sought here is that, as the
Supreme Court explained in the Sibron case, the prin-
cipal reason for an appellate court to conduct an inde-
pendent evaluation of the confessed error is to make
sure that by accepting the confession the court does not
mistakenly wipe out a sound judicial decision, namely
the decision that the appellee has confessed was errone-
ous. That is not a consideration in our review of a deci-
sion by the Board of Immigration Appeals, and not only
because the Board is not a federal district court. As the
Department explains in its supplementary memoran-
dum, if the Attorney General wants to withdraw a deci-
sion by the Board, whether thinking it erroneous or on any
other ground, he can direct the Board to refer the case
to him for review, 8 C.F.R. § 1003.1(h)(1)(i); In re N-J-B-,
22 I. & N. Dec. 1057, 1088 (AG 1997), thereby rendering
the Board’s decision nonfinal and hence not judicially
reviewable. In re E-L-H-, 23 I. & N. Dec. 814, 820 (BIA
2005); 8 U.S.C. § 1252(a)(1). That would be a step beyond the
one the Attorney General has taken in this case in asking us
to remand the case. The Board itself, moreover, can reopen
or reconsider any decision even if no party requests it to do
so. 8 C.F.R. § 1003.2(a); In re X-G-W-, 22 I. & N. Dec. 71, 73
(BIA 1998). Again the effect is to render the decision

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No. 05-3512 5
nonreviewable. Bronisz v. Ashcroft, 389 F.3d 632, 637 (7th Cir.
2004); Lopez-Ruiz v. Ashcroft, 298 F.3d 886 (9th Cir. 2002) (per
curiam).
The motion to remand the matter to the Board of Immigra-
tion Appeals is
G RANTED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-9-06

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