Bolieiro v. Holder, Jr.

United States Court of Appeals
For the First Circuit
No. 12-1807
LUCIA MARIA BOLIEIRO,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Howard, Lipez, and Kayatta,
Circuit Judges.
Kerry E. Doyle for petitioner.
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, with whom Stuart F. Delery, Principal Deputy Assistant
Attorney General, Civil Division, and Terri J. Scadron, Assistant
Director, were on brief, for respondent.
September 27, 2013
LIPEZ, Circuit Judge. Lucia Maria Bolieiro was the
respondent in lengthy removal proceedings involving her reentry
into the United States after her mandated removal. These
proceedings culminated in her filing of a motion to reopen with the
immigration judge ("IJ") that raised due process and ineffective
assistance of counsel claims. After that motion and a subsequent
motion to reconsider were both denied, she appealed to the Board of
Immigration Appeals ("BIA"). Relying on a set of regulations
known collectively as "the post-departure bar," 8 C.F.R. §§
1003.2(d), 1003.23(b)(1), the agency concluded that it lacked
jurisdiction to entertain her motion and dismissed her appeals.
In Perez Santana v. Holder, No. 12-2270 (1st Cir. Sept.
27, 2013), which we issue in conjunction with this opinion, we hold
that the post-departure bar conflicts with the unambiguous language
of the motion to reopen statute. See 8 U.S.C. § 1229a(c)(7)(A).
As a result, the agency's regulation, in the circumstances
applicable to this petition for review, cannot preclude Bolieiro
from vindicating her statutory right to seek reopening of her
removal proceedings. Although the government seeks to distinguish
Bolieiro's case on the basis that her motion was filed outside the
ninety-day deadline set forth in the motion to reopen statute, the
agency's denials of Perez Santana's and Bolieiro's petitions
ultimately rest on the same basic rationale: the post-departure
bar prevents the agency from entertaining their motions to reopen.
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Under well-settled rules governing agency review, we are
unable to substitute an alternative basis for the agency's
conclusion and therefore cannot distinguish the two cases on the
grounds the government now advances. Thus, our holding in Perez
Santana compels us to grant Bolieiro's petition, and we remand for
further proceedings before the agency.
I.
Bolieiro's removal proceedings have followed a long and
winding road through the immigration system. This appeal, however,
requires knowledge of only a relatively narrow set of facts. We
briefly recount them.
A. Factual Background
In 1972, Bolieiro entered the United States as a lawful
permanent resident ("LPR"). After living in the country for many
years, she pled guilty to a controlled substance offense in New
Hampshire Superior Court on January 11, 1991. The next year, on
April 16, 1992, Immigration and Naturalization Services ("INS")
initiated deportation proceedings against her.1 Although the
record of the initial phases of these proceedings is less than
lucid, it seems that Bolieiro appeared before the IJ and expressed
her intent to seek discretionary relief under former Section 212(c)
of the Immigration and Nationality Act ("INA"). See 8 U.S.C.
1
"The INS's enforcement functions have since been transferred
to the Department of Homeland Security (DHS)." Chedid v. Holder,
573 F.3d 33, 34 n.1 (1st Cir. 2009).
-3-
§ 1182(c), repealed by Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. No. 104-208, Title III,
§ 304(b), 110 Stat. 3009, 3009-597. Bolieiro was informed that she
should file her application for relief by August 10, 1992, and the
IJ continued her case until December 22, 1992.
Bolieiro never filed the application. On September 30,
1992, the IJ found her deportable based on the record of her
controlled substance conviction, and also deemed her request for
212(c) relief abandoned because of her failure to file her
application by the prescribed deadline. Mailed to her home
address, the order of deportation was later returned to sender
because Bolieiro had moved without leaving a forwarding address.
Despite the deportation order, Bolieiro remained in the
United States. She asserts that she became a confidential
informant for Immigration and Customs Enforcement ("ICE") in 1995,
and was placed under an order of supervision. She also claims that
she married a U.S. citizen in 1997 who was abusive towards her.
(She reports that she is now divorced from this person.) On
January 24, 1999, she was arrested for domestic assault. This case
brought her to the attention of immigration authorities once again
and removal proceedings were initiated against her.
On February 12, 1999, Bolieiro filed a motion to reopen
before the IJ, with the assistance of counsel. The motion was
denied without prejudice because of its failure to conform with
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substantive and evidentiary requirements, and the IJ directed
Bolieiro to refile "a proper motion, accompanied by the appropriate
fee and supported by an affidavit."
On March 10, 1999, Bolieiro submitted another motion.
The motion raised a variety of due process and ineffective
assistance of counsel arguments. The motion also contended that
she was eligible for various forms of relief, including her
abandoned application for 212(c) relief. The IJ denied the motion
on several grounds, including, inter alia, that the motion was
untimely; that she had failed to demonstrate prima facie
eligibility for 212(c) relief; and that she had failed to comply
with the procedural requirements for raising a claim of ineffective
assistance of counsel. After the IJ denied her motion, Bolieiro
was deported from the United States on June 3, 1999.
Sometime afer her removal, Bolieiro reentered the country
without authorization. After ICE received a tip from a
confidential source, federal agents arrested her on May 14, 2011.
On June 8, 2011, she was indicted by a federal grand jury for
unlawful reentry in violation of 8 U.S.C. § 1326. She pled not
guilty to this charge, and subsequently moved to dismiss the
indictment. On February 19, 2013, the district court granted the
motion and dismissed all charges against her. See United States v.
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Bolieiro, 923 F. Supp. 2d 319, 2013 WL 541291 (D. Mass. Feb. 13,
2013).2
B. Recent Proceedings Before the Agency
With the aid of new counsel, Bolieiro moved to reopen her
proceedings before the IJ on December 28, 2011. This motion raised
a number of arguments, including that: the conviction that was the
basis of her removal had been vacated on constitutional grounds;
her former counsel had provided ineffective assistance; and her
deportation order was issued in violation of due process. The
motion sought to reopen her proceedings pursuant to the motion to
reopen statute. In the alternative, Bolieiro appealed to the
agency's sua sponte authority to reopen proceedings. In a
supplemental filing, she further asserted that she was eligible for
relief under the Violence Against Women Act ("VAWA") because she
was a victim of domestic abuse. The filing noted that she had
filed a self-petition with Citizenship and Immigration Services
("USCIS"), an agency within the Department of Homeland Security, as
a precursor to obtaining relief under VAWA. See Part II.B, infra.
On January 31, 2012, the IJ denied Bolieiro's motion,
citing the post-departure bar and the BIA's opinion in Matter of
Armendarez-Mendez, 24 I. & N. Dec. 646 (BIA 2008). See also 8
C.F.R. §§ 1003.2(d), 1003.23(b)(1). Based on those authorities,
2
The government has appealed the dismissal of the indictment.
At the request of the parties, we stayed that appeal pending the
resolution of Bolieiro's petition for review.
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the IJ concluded that he lacked jurisdiction to consider the
motion. The IJ further rejected Bolieiro's due process arguments.
Petitioner filed a motion to reconsider with the IJ on February 15,
2012, which was denied in a summary order.
Bolieiro appealed both the denials of her motion to
reopen and her motion to reconsider to the BIA. During this time,
USCIS approved her VAWA self-petition, thereby fulfilling a
prerequisite for Bolieiro to obtain relief under VAWA. On May 29,
2012, the BIA dismissed the appeals. The BIA agreed with the IJ
that Bolieiro's motion must be denied for lack of jurisdiction,
citing our prior opinion in Pena-Muriel v. Gonzales, 489 F.3d 438(1st Cir. 2007), and the post-departure regulation. The BIA did
not expressly distinguish between the general provisions of the
motion to reopen statute, and the "special rule" governing motions
to reopen filed by individuals seeking relief under VAWA, despite
the fact that those provisions impose different requirements. The
BIA also concluded that due process did not require the reopening
of petitioner's proceedings in order to address the vacatur of her
criminal conviction, because the denial of her motion would not
result in a "gross miscarriage of justice." See Matter of C-, 8 I.
& N. Dec. 611, 615 (BIA 1960).
After the BIA dismissed her appeal, Bolieiro timely
petitioned for our review.
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II.
Our review of the agency's denial of a motion to
reconsider or reopen is for abuse of discretion. Martinez-Lopez v.
Holder, 704 F.3d 169, 171 (1st Cir. 2013) (reconsideration); Aponte
v. Holder, 683 F.3d 6, 10 (1st Cir. 2012) (reopening). A denial of
a motion to reopen is an abuse of discretion if "'the [agency]
committed an error of law or exercised its judgment in an
arbitrary, capricious, or irrational way.'" Bead v. Holder, 703
F.3d 591, 593 (1st Cir. 2013) (quoting Raza v. Gonzales, 484 F.3d
125, 127 (1st Cir. 2007)). A denial of a motion to reconsider, for
its part, is an abuse of discretion "only when the 'denial was made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'"
Martinez-Lopez v. Holder, 704 F.3d 169, 172 (1st Cir. 2013)
(quoting Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003)).
We review questions of law de novo, "with deference given
'to the BIA's reasonable interpretations of statutes and
regulations falling within its purview.'" Aponte, 683 F.3d at 10
(quoting Matos–Santana v. Holder, 660 F.3d 91, 93 (1st Cir. 2011)).
The scope of our review encompasses "the BIA's decision as well as
any portions of the IJ's opinion adopted by the BIA." Peña–Beltre
v. Holder, 622 F.3d 57, 61 (1st Cir. 2010).
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A. Bolieiro's Motion to Reopen and the Applicability of the Post-
Departure Bar
1. Timeliness
Bolieiro argues primarily that the post-departure bar
conflicts with the plain language of the motion to reopen statute,
8 U.S.C. § 1229a(c)(7)(A). Our opinion in Perez Santana
exhaustively addresses that issue. There, we hold that the post-
departure bar cannot be used to preclude a noncitizen from
vindicating his statutory right to a motion to reopen. Id., slip
op. at 25-26. We will not repeat the analysis that led to that
holding here.3
But Bolieiro's case contains a wrinkle not present in
Perez Santana's. The instant motion to reopen seeks vacatur of a
removal order that was entered almost twenty years before the
motion was filed. The motion to reopen statute contains a temporal
limitation — "the motion to reopen shall be filed within 90 days of
3
As an additional justification for the post-departure bar's
validity, the government contends that the regulation is a
"categorical exercise of discretion," reflecting the agency's
judgment (possibly unreviewable) that it should not consider
motions to reopen filed by noncitizens who have left the country.
Setting aside the fact that the agency itself has not relied on
this rationale to justify the post-departure bar, an exercise of
discretion, categorical or otherwise, must remain consistent with
the agency's statutory authority. As our opinion in Perez-Santana
explains, the agency does not have the power to prevent a
noncitizen from exercising a right granted by the statute's plain
language. Stated differently, "[c]asting the post-departure bar as
categorical exercise of discretion . . . does not cure the fact
that it contravenes clear congressional intent." Contreras-
Bocanegra v. Holder, 678 F.3d 811, 819 (10th Cir. 2012) (en banc).
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the date of entry of a final administrative order of removal." 8
U.S.C. § 1229a(c)(7)(C)(i). Focusing on this provision, the
government contends that "there is no conflict between [the
immigration statute] and the Attorney General's regulation, where
Bolieiro's motions were untimely." The government suggests that
because of its tardiness, Bolieiro's motion falls outside of the
statute's scope and thus "ha[s] no statutory footing."
Accordingly, the argument goes, the motion must be construed as an
appeal to the agency's sua sponte authority to reopen proceedings
at any time. See 8 C.F.R. § 1003.2(a) ("The Board may at any time
reopen or reconsider on its own motion any case in which it has
rendered a decision."); id. § 1003.23(b)(1) (analogous regulation
for IJs).
Because the agency's power to reopen proceedings sua
sponte is not codified in statute and operates purely as a creature
of agency discretion, see Matos-Santana, 660 F.3d at 94, the
government further contends that even if the post-departure bar
cannot prevent a noncitizen from filing a motion to reopen pursuant
to the statute, the agency retains the ability to apply the post-
departure bar to any motion that falls outside the statute.
Several of our sister circuits have adopted this rule, despite also
holding that the post-departure bar cannot be applied to
noncitizens invoking their statutory reopening rights. Compare
Perez-Santana, slip op. at 10 (collecting circuit opinions), with
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Ovalles v. Holder, 577 F.3d 288, 295-96 (5th Cir. 2009) (holding
that post-departure bar may be applied to untimely motion to
reopen, since such motion "invokes statutory provisions that offer
him no relief"); see also Desai v. Att'y Gen., 695 F.3d 267, 270-71
(3d Cir. 2012) (stating that previous holding that post-departure
bar conflicted with motion to reopen statute "does not extend to
cases like this one, where neither that statutory right nor
congressional intent is implicated"); Zhang v. Holder, 617 F.3d
650, 661 (2d Cir. 2010) (stating that agency retains "the authority
to limit that jurisdiction and define [sua sponte reopening's]
contours through, among other things, the departure bar").
Whatever the merits of this argument, we cannot address
it here. Under well-settled principles of administrative law, we
must accept or reject the agency's decision based on the rationale
the agency provides. See Wiratama v. Mukasey, 538 F.3d 1, 6 (1st
Cir. 2008) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).
While alternative grounds for affirming the agency's decision may
be evident in the record, a court may not substitute its own
rationale to justify the agency's conclusion. See Pina v. Mukasey,
542 F.3d 5, 12 n.7 (1st Cir. 2008) (stating that because "the BIA
did not address that issue, . . . we may not conduct our own de
novo inquiry" (citing INS v. Ventura, 537 U.S. 12, 16 (2002)).
Thus, the proper way to handle an agency error in the ordinary
circumstance "'is to remand to the agency for additional
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investigation or explanation.'" Ventura, 537 U.S. at 16 (quoting
Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). This
principle is known as the "ordinary remand rule." See
Castaneda-Castillo v. Holder, 638 F.3d 354, 363 (1st Cir. 2011).
Here, the BIA's dismissal of Bolieiro's appeal was
premised on its application of the post-departure bar, as the
government acknowledged at oral argument. In applying the bar,
however, the BIA did not make a distinction between timely and
untimely motions to reopen. Instead, the agency enforced the
blanket rule that all such motions were barred "after the alien's
departure from the United States." In support of this conclusion,
the agency cited 8 C.F.R. § 10023.23(b)(1), which is the version of
the post-departure bar applicable to motions before the IJ, as well
as the BIA's precedent opinion in Matter of Armendarez-Mendez.
Neither the regulation nor Matter of Armendarez-Mendez
distinguishes between timely and untimely motions. The suggestion
that Bolieiro's motion stands on different "statutory footing" than
a timely motion appears nowhere in the BIA's analysis, or in the
authorities it relied upon to dismiss her appeal.4 If the agency
wishes to articulate a more nuanced basis for rejecting her motion
based upon her motion's untimeliness, it may do so, but we decline
4
Although the BIA's opinion does mention that Bolieiro's
motion was filed "long after the statutory deadline for seeking
reopening has passed," the BIA made that comment in the context of
rejecting her alternative due process-based argument.
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to supply that basis on the agency's behalf. See Halo v. Gonzales,
419 F.3d 15, 18-19 (1st Cir. 2005) ("[A] reviewing court . . . must
judge the propriety of [administrative] action solely by the
grounds invoked by the agency, and that basis must be set forth
with such clarity as to be understandable." (second alteration in
original) (citation and internal quotation marks omitted)).
To sum up, in the companion case of Perez Santana, we
reject the proposition that the post-departure bar precludes a
noncitizen who has departed the country from vindicating her
statutory right to seek reopening. As we have explained, given the
basis for the BIA's decision in this case, Bolieiro's and Perez
Santana's cases both present the same issue — whether the post-
departure bar can prevent a noncitizen from invoking his or her
statutory right to file a motion to reopen. We have concluded that
it cannot. Because we must evaluate the agency's refusal to
consider Bolieiro's petition upon the grounds that it has
proffered, and because the agency's refusal to consider her motion
rested on the same rationale as its refusal to consider Perez
Santana's, our holding in Perez Santana compels us to grant
Bolieiro's petition as well.5
5
As noted, the BIA's opinion also concluded that due process
does not require that Bolieiro's proceedings be reopened to address
the vacatur of the criminal conviction upon which her removal was
based. Bolieiro contests that determination on appeal as an
alternative to her challenge to the post-departure regulation.
Because we grant her petition on other grounds, we express no view
on the merits of her due process argument or her remaining
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This holding should not be construed as a judgment on
whether Bolieiro's motion should be granted. We say only that the
agency's ground for refusing to consider her motion does not
withstand scrutiny. On remand, if the agency offers an alternative
basis for refusing to consider her motion, we will evaluate that
basis if and when the case returns to us.
2. Equitable Tolling
We do wish to correct a misapprehension on the part of
the government because it will be important on remand. Contrary to
the government's assertions, Bolieiro's motion does not seek to
invoke the agency's sua sponte authority to reopen proceedings, but
rather her statutory right to seek reopening. Although she
acknowledges that the motion was filed more than ninety days after
the entry of Bolieiro's order of deportation (indeed, almost twenty
years after), she contends that the time deadline should be
equitably tolled in order to permit her to file a motion to reopen.
"Equitable tolling applies 'as a matter of fairness where a [party]
has been prevented in some extraordinary way from exercising [her]
rights.'" Iavorski v. INS, 232 F.3d 124, 129 (2d Cir. 2000) (first
alteration in original) (quoting Johnson v. Nyack Hosp., 86 F.3d 8,
12 (2d Cir. 1996)). By excusing tardiness, the doctrine permits a
party to invoke the right that she would otherwise be unable to
access. In other words, by contending that equitable tolling
contentions.
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should excuse the untimeliness of her motion, Bolieiro's argument
is directed at her statutory right to file a motion to reopen, not
the agency's sua sponte authority to reopen proceedings. See Singh
v. Holder, 658 F.3d 879, 884 (9th Cir. 2011) ("If an alien
qualifies for equitable tolling of the time and/or numerical
limitations on a motion to reopen, the motion is treated as if it
were the one the alien is statutorily entitled to file.");
Ortega-Marroquin v. Holder, 640 F.3d 814, 819 (8th Cir. 2011) ("To
fall within the scope of the motion-to-reopen statute, Ortega must
show that the filing deadline is subject to equitable tolling,
thereby excusing its lateness.").6
Thus, Bolieiro does in fact seek a statutory foothold for
her motion to reopen. This is not to say that Bolieiro's attempt
to invoke the statute will be successful, as we have not yet
decided whether equitable tolling applies to the statute's ninety-
day deadline, despite multiple opportunities to do so. See, e.g.,
Romer v. Holder, 663 F.3d 40, 43 (1st Cir. 2011); Neves v. Holder,
613 F.3d 30, 36 (1st Cir. 2010).7 It is also not clear that
6
Bolieiro sought sua sponte reopening of her proceedings as
well. This argument was clearly framed in the alternative,
however, and her primary contention was grounded in the statute.
7
Notably, every circuit that has addressed the issue thus far
has held that equitable tolling applies to either or both the time
and numerical limits to filing motions to reopen. See
Avila-Santoyo v. Att'y Gen., 713 F.3d 1357, 1362-64 (11th Cir.
2013) (en banc); Yuan Gao v. Mukasey, 519 F.3d 376, 377 (7th Cir.
2008); Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007);
Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004); Riley v. INS,
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Bolieiro would be entitled to equitable tolling of the deadline,
even assuming that the deadline could be tolled. See Jobe v. INS,
238 F.3d 96, 100 (1st Cir. 2001) (en banc) (setting forth five-
factor test used to determine entitlement to equitable tolling).
But the government fails to engage with her argument when it
contends that her motion necessarily falls outside the statute
simply because it is untimely. The agency should not make a
similar error on remand. Cf. Romer, 663 F.3d at 43 (remanding case
for failure to consider applicability of equitable tolling and
observing that agency "ignore[d] Romer's argument, ignore[d]
arguably applicable law, and cross[ed] the line from merely
deficient to plainly arbitrary").
B. Bolieiro's VAWA Claims
Bolieiro also sought to reopen her removal proceedings
under certain statutory provisions specific to survivors of
domestic violence, due to the abuse she had suffered at the hands
of her former U.S. citizen husband. Under VAWA, such individuals
may seek unique versions of adjustment of status and cancellation
of removal. Both of these forms of relief offer a pathway for
Bolieiro to obtain lawful permanent resident status. See 8 U.S.C.
§ 1154(a)(1) (permitting survivor of domestic violence to petition
on her own behalf, otherwise known as "self-petition," for
310 F.3d 1253, 1258 (10th Cir. 2002); Iavorski v. INS, 232 F.3d
124, 129-30 (2d Cir. 2000).
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adjustment of status); id. § 1229b(b) (setting forth requirements
for VAWA "special rule" cancellation); see also Hamilton v. Holder,
680 F.3d 1024, 1026 (8th Cir. 2012) (discussing VAWA cancellation);
Ochoa-Artega v. U.S. Att'y Gen., 364 Fed. App'x 614, 617 (11th Cir.
2010) (describing VAWA's self-petitioning processes).8 Different
procedural requirements govern motions to reopen to the extent that
the noncitizen seeks to obtain relief under VAWA. If the motion
seeks to reopen proceedings so that the movant can obtain relief
under VAWA, "[a]ny limitation . . . on the deadlines for filing [a
motion to reopen] shall not apply." 8 U.S.C.
§ 1229a(c)(7)(C)(iv)(I). The VAWA-specific provisions also require
that the movant be "physically present in the United States at the
time of filing the motion." Id. § 1229a(c)(7)(C)(iv)(IV).
Noting that she was within in the United States when she
filed her motion to reopen under the special rule, Bolieiro argues
that the post-departure bar is therefore inapplicable to her motion
to the extent it seeks relief under VAWA. The government responds
that Bolieiro was "physically present" in the country only because
she had reentered unlawfully after having been deported.
8
Bolieiro has not clearly specified which form of VAWA relief
she seeks, or if she seeks both. She has filed a VAWA self-
petition, which is a prerequisite to obtaining adjustment of
status. Her brief before us also suggests that she seeks
adjustment. But her motion to reconsider before the IJ contended
that she is "prima facie eligible for VAWA Cancellation of
Removal." As the particular form of VAWA relief Bolieiro seeks is
immaterial to this appeal, we leave this issue for the agency and
the parties to sort out on remand.
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Considering Bolieiro's motion, the government maintains, would
unjustly reward her for violating the law, and the statute should
not be read to permit such a result. The government also contends
that Bolieiro is ineligible for relief under VAWA, and that her
petition should be denied due to futility.
The BIA did not address any of these arguments, instead
citing the post-departure bar as its basis for refusing to consider
Bolieiro's motion. The BIA's opinion did not even mention the
motion's invocation of both the general provisions of the motion to
reopen statute, as well as those specific to individuals seeking
VAWA relief. The agency therefore failed to examine whether
Bolieiro's motion, to the extent it seeks reopening to obtain
relief under VAWA, may stand on different footing from her
invocation of the reopening statute's general provisions. Having
already decided that remand is warranted, we need not dive into
this VAWA thicket. Instead, we simply add those issues to the list
of arguments that the agency may consider on remand. See Campbell
v. Holder, 698 F.3d 29, 36 (1st Cir. 2012) ("[S]ince the Board did
not reach these issues, neither do we."); Guta-Tolossa v. Holder,
674 F.3d 57, 61 (1st Cir. 2012) ("Where a question is best resolved
by the agency in the first instance, or is left primarily in the
agency's hands by statute, and the agency has failed to address
that question, we generally must remand.").
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Urging us to deny the petition nonetheless, the
government invokes the "rare circumstances" exception to the
ordinary remand rule, contending that Bolieiro has no viable
avenues to relief and that the outcome of her proceedings is
foregone. See Ventura, 537 U.S. at 16 ("[T]he proper course,
except in rare circumstances, is to remand to the agency for
additional investigation or explanation." (emphasis added)); see
also Hussain v. Gonzales, 477 F.3d 153, 158 (4th Cir. 2007)
(declining to remand case to BIA "[b]ecause the result of a remand
to the Board is a foregone conclusion such that remand would amount
to nothing more than a mere formality"). We offer no judgment on
the contours of this exception here, except to say that this case
falls beyond them. The government's futility arguments rely on
complicated legal and factual issues that have been neither
ventilated adequately before us, nor addressed by the agency.
Although we are not yet in a position to evaluate the merits of the
government's contentions, we cannot say that Bolieiro's attempts to
obtain relief are doomed. These circumstances counsel strongly in
favor of remand.
III.
For the reasons stated, we grant the petition for review,
vacate the order of the BIA, and remand for further proceedings
consistent with this opinion.
So ordered.
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