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CA5 Asylum Remand: Peña Oseguera v. Barr

August 23, 2019 (1 min read)

Peña Oseguera v. Barr

"The BIA admitted that the Immigration Judge incorrectly conflated the respondent’s claim with that of his mother (“We briefly note that the respondent is not a derivative application on his mother’s separate asylum application, and thus each claim must stand on its own merits.” Id. at 3.). The BIA then claims to have come to an “independent conclusion” which “this reasoning by the Immigration Judge does not meaningfully impact.” However, the BIA must rely on the factual findings of the IJ, which were likely impacted by the incorrect legal posture through which the IJ viewed the case. Zumel v. Lynch, 803 F.3d 463, 475 (9th Cir. 2015). IV. Considering this error, and in order that the IJ and the BIA may have the benefit of the increased clarity provided by Matter of L-E-A-, we determine it prudent to remand. We recognize that Matter of L-E-A- is at odds with the precedent of several circuits. Matter of L-E-A-, 27 I&N Dec. at 589-91 (analyzing precedent from the First, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits). However, it is not at odds with any precedent in the Fifth Circuit. We therefore VACATE and REMAND for consideration in light of Matter of L-E-A-."

[Hats off to Vinesh Patel and Francisco Avillar!]