Catherine Phiri v. Eric Holder, Jr.

MEMORANDUM

Catherine Phiri (“Phiri”) petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her application for asylum. See 8 U.S.C. § 1158 . We deny the petition.

(1) Phiri first asserts that the BIA erred because it upheld a decision of a new Immigration Judge (“IJ”) that was issued after a remand by the BIA when it determined that there was no transcript (or recording) of the first hearing and decision. We disagree. As the BIA stated, Phiri and the government effectively stipulated that the IJ should conduct a new hearing and issue a new decision. Certainly, Phiri did not object to that approach when she was before the IJ and, in fact, expressly embraced it. The issue was waived. See Gonzalez-Rivera v. INS, 22 F.3d 1441, 1444 (9th Cir.1994). In any event, the BIA’s remand order did not restrict the scope of the IJ’s authority to rehear and redecide the case upon remand; it expansively indicated that the IJ could take all “necessary and appropriate” steps. Due to that lack of express limitations, the IJ was not foreclosed from proceeding as he did. See Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir.2010). Thus, the BIA did not err.

(2) Phiri then…