IMMIGRATION AND NATURALIZATION SERVICE v. ORLANDO VENTURA

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Syllabus
IMMIGRATION AND NATURALIZATION SERVICE v.
ORLANDO VENTURA
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 dem-
onstrates 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 re-
gardless of past persecution because conditions in Guatemala had im-
proved to the point where no realistic persecution threat existed. Be-
cause 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 administra-
tive 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 re-
quirement 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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port about Guatemala is legally inadequate because the report was am-
biguous about changed circumstances, and because remand could lead
to the presentation of further evidence of current circumstances, which
may well prove enlightening given that five years have elapsed since
the report was written.
Certiorari granted; 264 F. 3d 1150, reversed and remanded.
Per Curiam.
Federal statutes authorize the Attorney General, in his
discretion, to grant asylum to an alien who demonstrates
“persecution or a well-founded fear of persecution on account
of . . . [a] political opinion,” and they require the Attorney
General to withhold deportation where the alien’s “life or
freedom would be threatened” for that reason. Immigration
and Nationality Act, §§ 101(a)(42)(A), 208(a), 243(h), 66 Stat.
166, as amended, 8 U. S. C. §§ 1101(a)(42), 1158(a), 1253(h)(1)
(1994 ed. and Supp. V). The Board of Immigration Appeals
(BIA) determined that respondent Fredy Orlando Ventura
failed to qualify for this statutory protection because any
persecution that he faced when he left Guatemala in 1993
was not “on account of ” a “political opinion.” The Court
of Appeals for the Ninth Circuit reversed the BIA’s holding.
264 F. 3d 1150 (2001) (emphasis added).
The Court of Appeals then went on to consider an alterna-
tive argument that the Government had made before the Im-
migration Judge, namely, that Orlando Ventura failed to
qualify for protection regardless of past persecution because
conditions in Guatemala had improved to the point where no
realistic threat of persecution currently existed. Both sides
pointed out to the Ninth Circuit that the Immigration Judge
had held that conditions had indeed changed to that point
but that the BIA itself had not considered this alternative
claim. And both sides asked that the Ninth Circuit remand
the case to the BIA so that it might do so. See Brief for
Petitioner in No. 99–71004 (CA9), pp. 5, 6, 24; Brief for Re-
spondent in No. 99–71004 (CA9), pp. 8, 9, 23.

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The Court of Appeals, however, did not remand the case.
Instead, it evaluated the Government’s claim itself. And it
decided the matter in Orlando Ventura’s favor, holding that
the evidence in the record failed to show sufficient change.
264 F. 3d, at 1157–1158. The Government, seeking certio-
rari here, argues that the Court of Appeals exceeded its legal
authority when it decided the “changed circumstances” mat-
ter on its own. We agree with the Government that the
Court of Appeals should have remanded the case to the BIA.
And we summarily reverse its decision not to do so.
I
We shall describe the basic proceedings so far. In 1993
Orlando Ventura, a citizen of Guatemala, entered the United
States illegally. In 1995 the Attorney General began depor-
tation proceedings. And in 1998 an Immigration Judge con-
sidered Orlando Ventura’s application for asylum and with-
holding of deportation, an application based upon a fear and
threat of persecution “on account of ” a “political opinion.”
8 U. S. C. §§ 1101(a)(42)(A), 1253(h) (1994 ed. and Supp. V).
Orlando Ventura testified that he had received threats of
death or harm unless he joined the guerrilla army, that his
family members had close ties to the Guatemalan military,
and that, in his view, the guerrillas consequently believed he
held inimical political opinions.
The Immigration Judge denied relief. She recognized
that Orlando Ventura subjectively believed that the guer-
rillas’ interest in him was politically based. And she cred-
ited testimony showing (a) that Orlando Ventura’s family had
many connections to the military, (b) that he was very close
to one cousin, an army lieutenant who had served for almost
12 years, (c) that in 1987 his uncle, a local military com-
missioner responsible for recruiting, was attacked by people
with machetes, and (d) that in 1988 his cousin (a soldier) and
the cousin’s brother (a civilian) were both shot at and the
soldier-cousin killed. Nonetheless, Orlando Ventura had

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failed objectively “to demonstrate that the guerillas’ inter-
est” in him was “on account of his political opinion.” App.
to Pet. for Cert. 22a. The Immigration Judge added that
“conditions” in Guatemala had changed significantly. Even
“if the guerillas” once had had a politically based “interest”
in Orlando Ventura, the evidence failed to show that the
guerrillas would “continue to have motivation and inclination
to persecute him in the future.” Ibid.
The BIA, considering the matter de novo, “agree[d]” with
the Immigration Judge that Orlando Ventura “did not meet
his burden of establishing that he faces persecution ‘on ac-
count of ’ a qualifying ground . . . .” Id., at 15a. The BIA
added that it “need not address” the question of “changed
country conditions.” Ibid.
The Court of Appeals, reviewing the BIA’s decision, de-
cided that this evidence “compel[led] ” it to reject the BIA’s
conclusion. 264 F. 3d, at 1154 (emphasis added); see INS v.
Elias-Zacarias, 502 U. S. 478, 481, n. 1 (1992) (“To reverse
the BIA finding we must find that the evidence not only
supports that conclusion, but compels it . . .” (emphasis in
original)). It recognized that the BIA had not decided
the “changed circumstances” question and that “generally”
a court should remand to permit that consideration. 264
F. 3d, at 1157. Cf. Castillo v. INS, 951 F. 2d 1117, 1120–1121
(CA9 1991) (specifying that the Court of Appeals must re-
view the decision of the BIA, not the underlying decision of
the immigration judge). But the Court of Appeals added
that it need “not remand . . . when it is clear that we would
be compelled to reverse the BIA’s decision if the BIA decided
the matter against the applicant.” 264 F. 3d, at 1157. And
it held that the record evidence, namely, a 1997 State Depart-
ment report about Guatemala, “clearly demonstrates that
the presumption of a well-founded fear of future persecution
was not rebutted.” Ibid. Hence, it concluded, “remand . . .
is inappropriate.” Ibid.

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The Government challenges the decision not to remand.
And it says the matter is important. The “error,” it says, is
a “recurring error [that] puts the Ninth Circuit in conflict
with other courts of appeals, which generally respect the
BIA’s role as fact-finder by remanding to the BIA in similar
situations.” Pet. for Cert. 11. See also Pet. for Cert. in
INS v. Chen, O. T. 2002, No. 25, p. 23 (referring to eight other
recent decisions from the Court of Appeals for the Ninth
Circuit, which, in the Government’s view, demonstrate this
trend). After examining the record, we find that well-
established principles of administrative law did require the
Court of Appeals to remand the “changed circumstances”
question to the BIA.
II
No one disputes the basic legal principles that govern re-
mand. Within broad limits the law entrusts the agency to
make the basic asylum eligibility decision here in question.
E. g., 8 U. S. C. § 1158(a); 8 U. S. C. § 1253(h)(1) (1994 ed.);
Elias-Zacarias, supra, at 481; INS v. Aguirre-Aguirre, 526
U. S. 415 (1999). See also 8 CFR § 3.1 (2002). In such cir-
cumstances a “judicial judgment cannot be made to do serv-
ice for an administrative judgment.” SEC v. Chenery Corp.,
318 U. S. 80, 88 (1943). Nor can an “appellate court . . . in-
trude upon the domain which Congress has exclusively
entrusted to an administrative agency.” Ibid. A court of
appeals “is not generally empowered to conduct a de novo
inquiry into the matter being reviewed and to reach its own
conclusions based on such an inquiry.” Florida Power &
Light Co. v. Lorion, 470 U. S. 729, 744 (1985). Rather, “the
proper course, except in rare circumstances, is to remand
to the agency for additional investigation or explanation.”
Ibid. Cf. SEC v. Chenery Corp., 332 U. S. 194, 196 (1947)
(describing the reasons for remand).
Generally speaking, a court of appeals should remand a
case to an agency for decision of a matter that statutes place
primarily in agency hands. This principle has obvious im-

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portance in the immigration context. The BIA has not yet
considered the “changed circumstances” issue. And every
consideration that classically supports the law’s ordinary re-
mand requirement does so here. The agency can bring its
expertise to bear upon the matter; it can evaluate the evi-
dence; it can make an initial determination; and, in doing so,
it can, through informed discussion and analysis, help a court
later determine whether its decision exceeds the leeway that
the law provides.
These basic considerations indicate that the Court of Ap-
peals committed clear error here. It seriously disregarded
the agency’s legally mandated role. Instead, it independ-
ently created potentially far-reaching legal precedent about
the significance of political change in Guatemala, a highly
complex and sensitive matter. And it did so without giving
the BIA the opportunity to address the matter in the first
instance in light of its own expertise.
The Court of Appeals rested its conclusion upon its belief
that the basic record evidence on the matter—the 1997 State
Department report about Guatemala—compelled a finding of
insufficiently changed circumstances. But that foundation is
legally inadequate for two reasons. First, the State Depart-
ment report is, at most, ambiguous about the matter. The
bulk of the report makes clear that considerable change has
occurred. The report says, for example, that in December
1996 the Guatemalan Government and the guerrillas signed
a peace agreement, that in March 1996 there was a cease fire,
that the guerrillas then disbanded as a fighting force, that
“the guerrillas renounced the use of force to achieve political
goals,” and that “there was [a] marked improvement in the
overall human rights situation.” Bureau of Democracy,
Human Rights and Labor, U. S. Dept. of State, Guatemala-
Profile of Asylum Claims & Country Conditions 2–4 (June
1997).
As the Court of Appeals stressed, two parts of the report
can be read to the contrary. They say that (1) even “after

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the March cease-fire, guerrillas continued to employ death
threats” and (2) “the level of crime and violence now seems
to be higher than in the recent past.” Id., at 3–4. Yet the
report itself qualifies these statements. As to the second,
the report (as the Court of Appeals noted) says: “Although
the level of crime and violence now seems to be higher than
in the recent past, the underlying motivation in most asy-
lum cases now appears to stem from common crime and/or
personal vengeance,” i. e., not politics. Id., at 4 (emphasis
added). And the report (in sections to which the Court of
Appeals did not refer) adds that in the context of claims
based on political opinion, in “our experience, only party
leaders or high-profile activists generally would be vulnera-
ble to such harassment and usually only in their home com-
munities.” Id., at 8. This latter phrase “only in their home
communities” is particularly important in light of the fact
that an individual who can relocate safely within his home
country ordinarily cannot qualify for asylum here. See 8
CFR § 208.13(b)(1)(i) (2002).
Second, remand could lead to the presentation of further
evidence of current circumstances in Guatemala—evidence
that may well prove enlightening given the five years that
have elapsed since the report was written. See §§ 3.1, 3.2
(permitting the BIA to reopen the record and to remand to
the Immigration Judge as appropriate).
III
We conclude that the Court of Appeals should have applied
the ordinary “remand” rule. We grant the Government’s
petition for certiorari. We reverse the judgment of the
Court of Appeals for the Ninth Circuit insofar as it denies
remand to the agency. And we remand the case for further
proceedings consistent with this opinion.
So ordered.