Mary Giovagnoli, Director of the Immigration Policy Center at the American Immigration Council,...
Remands to the BIA
In an amicus brief submitted in Castaneda-Castillo v. Gonzales, the LAC argued that the First Circuit should uphold the majority panel’s decision not to remand the case to the BIA pursuant to the “ordinary remand rule” established in INS v. Ventura, 537 U.S. 12 (2002). While the ordinary remand rule requires remand when the BIA has not yet had the opportunity to consider an issue, the LAC argued that the rule does not apply where the BIA has thoroughly examined a particular issue but reached a wrong conclusion. When the BIA has addressed an issue in the first instance, the LAC argues, the court of appeals has authority to reverse the finding when the record compels the opposite conclusion.
Castaneda-Castillo v. Gonzales, No. 05-2384 (1st Circuit amicus brief filed Mar. 6, 2007). The court issued a precedent decision declining to follow the ordinary remand rule. Castaneda-Castillo v. Gonzales, 464 F.3d 112 (1st Cir. 2006).