Pena-Torres

MEMORANDUM **

Aurelio Pena-Torres petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reconsider its dismissal of his appeal. We grant his petition for review in part, reverse the BIA’s decision concerning his application *630 for asylum, and remand for the Attorney General to exercise his discretion in determining whether to grant Pena-Torres asylum.

Preliminary Matters

1. Scope of review: Where the BIA’s denial of a motion to reconsider “adopt[s] the underlying reasoning and holding of its prior opinion,” this court, on a petition for review from denial of the reconsideration motion, reviews the underlying opinion. Ma v. Ashcroft, 361 F.3d 553, 557 (9th Cir.2004). Here, in denying Pena-Torres’s motion to reconsider, the BIA referenced the conclusion of its previous order regarding the IJ’s decision and then continued: “Upon reconsideration, we again find no error by the Immigration Judge in denying [Pena-Torres’s] application for relief” (emphasis added). Because the BIA, “upon reconsideration,” decided anew the issue it had previously considered, we examine the merits of the original IJ decision. Pena-Torres has asked us to review these…