Naser

MEMORANDUM **

Mohammed Tahir Naser, an ethnic Tajik and Shiite Moslem citizen of Afghanistan, petitions for review of the Board of Immigration Appeals’ '(“BIA”) affirmance of the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252 , and grant the petition for review and remand.

*339 The BIA’s agreement with the IJ’s conclusion that it lacked jurisdiction to reconsider the claim of asylum and withholding, including the issues of adverse credibility, past persecution, and charges of excludability on remand is error. The BIA misconstrued our mandate in its 2008 decision, despite its recognition of the correct interpretation in its 2004 order upon remand. The BIA’s 2004 order vacated the prior decisions denying reconsideration of the asylum and withholding claims and ordered reopening “for a further hearing on the applicant’s application for asylum and withholding of exclusion.”

Our 2004 disposition had concluded that the BIA abused its discretion in denying Naser’s motion to reopen pursuant to 8 C.F.R. § 3.2 (c)(2) 1 because his motion…