INS v. Orlando Ventura, 537 U.S. 12 (2002) (per curiam)

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on petition for writ of certiorari to the united states court of appeals for the ninth circuit

No. 02-29. Decided November 4, 2002

The Attorney General is authorized to grant asylum to an alien who demonstrates persecution or a well-founded fear of persecution on account of a "political opinion," and is required to withhold deportation where the alien's "life or freedom would be threatened" for that reason. 8 U. S. C. 1101(a)(42), 1158(a), 1253(h)(1). The Board of Immigration Appeals (BIA) ruled that respondent did not qualify for such protection based on the persecution he faced when he left Guatemala in 1993. The Ninth Circuit reversed and then went on to address the Government's alternative argument that respondent did not qualify for protection regardless of past persecution because conditions in Guatemala had improved to the point where no realistic persecution threat existed. Because the BIA had not considered this argument, both sides asked the court to remand the case to the BIA. The court, however, evaluated the Government's claim itself, holding that the evidence failed to show a sufficient change.

Held: Well-established administrative-law principles required the Ninth

Circuit to remand the "changed circumstances" question to the BIA. Where, as here, the law entrusts the agency to make the basic decision in question, a judicial judgment cannot be substituted for an administrative one, SEC v. Chenery Corp., 318 U. S. 80, 88, and an appellate court's proper course is to remand to the agency for additional investigation or explanation, Florida Power & Light Co. v. Lorion, 470 U. S. 729, 744. The BIA has not yet considered the "changed circumstances" issue, and every consideration classically supporting the law's ordinary remand requirement does so here: The agency can bring its expertise to bear upon the matter; can evaluate the evidence; can make an initial determination; and, in doing so, can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides. Here, the Ninth Circuit seriously disregarded the agency's legally mandated role. It independently created a potentially far-reaching legal precedent about the significance of political change in Guatemala, a highly complex and sensitive matter, without giving the BIA the opportunity to address the matter in the first instance in light of its expertise. The court's reliance on a 1997 State Department re-

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