United States Court of Appeals
                     For the First Circuit


No. 23-1156

                   ALAIN GLODY CIRHUZA BADOSE,

                           Petitioner,

                               v.

              MERRICK B. GARLAND, Attorney General,

                           Respondent.


               PETITION FOR REVIEW OF AN ORDER OF
                THE BOARD OF IMMIGRATION APPEALS


                             Before

                 Rikelman, Lipez, and Thompson,
                         Circuit Judges.


     Gregory Romanovsky, with whom Romanovsky Law Offices was on
brief, for petitioner.

     Jennifer A. Bowen, Trial Attorney, Office of Immigration
Litigation, with whom Brian M. Boynton, Principal Deputy Assistant
Attorney General, Civil Division, and Anthony C. Payne, Assistant
Director, Office of Immigration Litigation, were on brief, for
respondent.


                        December 19, 2024
              LIPEZ, Circuit Judge.    Soon after arriving in the United

States in 2014 on a student visa, petitioner Alain Glody Cirhuza

Badose applied for asylum, withholding of removal, and protection

under   the    Convention    Against   Torture    ("CAT").        In   2019,   an

Immigration Judge ("IJ") denied his claims for relief based on an

adverse   credibility       determination   or,    alternatively,       because

Badose had failed to show a sufficient nexus between the harm he

described and a protected ground.           About two and a half years

later, while his appeal to the Board of Immigration Appeals ("BIA")

was pending, Badose married a U.S. citizen.         He then filed a motion

to remand to the IJ to consider an adjustment of status based on

the marriage -- an independent form of immigration relief now open

to him.   The government did not oppose the motion.               The following

month, however, the BIA denied his remand request and affirmed the

IJ's removal order, stressing that Badose -- with his "lack of

candor"   and     documented     history    of    "lying     to    immigration

officials" -- was fully "aware that his [immigration] status was

in jeopardy" when he wed.

              Badose now contends we should vacate the BIA's decision

in its entirety because, among other things, the BIA arbitrarily

departed from a consistent practice of granting unopposed remand

requests for consideration of adjustment-of-status relief.                     He

also asserts that the BIA engaged in impermissible factfinding,

and thereby legally erred, when it all but said explicitly his


                                    - 2 -
marriage was a sham.     We agree.     Concluding that the BIA made two

errors of law when it denied Badose's motion to remand, we grant

Badose's petition for review.

                                     I.

            We draw the relevant background from the administrative

record, though, in doing so, "we need not detail the totality of

[Badose's] dense history before various immigration agencies and

entities in order to inform and explain today's outcome." Manguriu

v. Garland, 

 (1st Cir. 2023).

A.   Badose's U.S. entry and merits hearing

            Badose, a national of the Democratic Republic of the

Congo ("DRC"), was admitted to the United States in January 2014

on an F-1 student visa.       Instead of going to school, however,

Badose   filed   an   application    with     the   U.S.       Citizenship    and

Immigration   Services   ("USCIS")     for    asylum     and    withholding    of

removal -- a Form I-589 -- and also sought protection under the

CAT.   In his application, he claimed that he would be in danger in

the DRC because of his political opinion or affiliation. See 

(b).      Removal proceedings were then initiated,

with Badose conceding removability as charged.                   See 

(a)(1)(C)(i)    (non-citizen        failing   to   maintain     terms   or

conditions of nonimmigrant status under which admitted, i.e.,

student).




                                    - 3 -
          At his merits hearing before the IJ in October 2019,

Badose testified as the sole witness in support of his claims for

relief.   He   averred   that   he   and   his   father   were   government

employees but also active members and supporters of "the main

opposition [political] party" in the DRC; that both were arrested

because of their challenges to "corruption"; and that Badose was

then detained for several days, during which he was separated from

his father, denied food and water, and repeatedly beaten.           Badose

explained that a soldier allowed him to escape prison, but only

after he witnessed the execution of two fellow inmates and was

threatened that he would be next unless he relinquished money and

compromising information about his father.            In his testimony,

Badose repeated several times that, "to this day," he has no

knowledge of his father's whereabouts or wellbeing.          He also said

he feared he would be killed by government officials and would put

family members in danger if he returned to the DRC.

          On cross-examination, however, Badose conceded that, on

each of his visa application forms, he had listed his father's

contact information and indicated that his father was paying for

his travel to the United States.         He also marked on these forms

that he had never been arrested in the DRC, despite his contrary

testimony at the hearing,1 and admitted that he had been denied


     1  Badose has since sought to clarify these answers,
explaining, for example, that family money paid for his travel,


                                 - 4 -
two prior visas due to questions about the legitimacy of proffered

bank statements.2   Finally, Badose also admitted that he had no

plans to go to school when he travelled to the United States on

the student visa, and acknowledged that there had been a political

transition in the DRC after he left, with the opposition party

securing some key leadership positions.

B.   The IJ's decision

          In late 2019, the IJ issued a decision rejecting Badose's

direct testimony in its entirety and denying his request for relief

from removal.   In explaining the adverse credibility finding, the

IJ noted that "[m]uch of [Badose's] testimony was inconsistent

with his three written [affidavits], his asylum application, his

visa interviews, and his asylum interview."    The IJ then concluded

that "the cumulative effect of such inconsistencies calls into

question the credibility of the entire claim."        Elaborating, the

IJ identified various portions of Badose's testimony that were

internally contradictory (such as Badose's description of his

arrest and his subsequent contact with his father), "implausible"

(such as the details of his prison escape), or both (such as the


that he has spoken with his father in recent years only in brief
cell phone conversations that his father initiated, and that he
reasonably understood the arrest question on the forms to be asking
whether he had ever been "lawfully arrested" in the DRC (the
truthful answer to which, he maintains, is "no").
     2 The record indicates that       these   bank   statements   were
ultimately verified as authentic.


                               - 5 -
suspiciously condensed timeline of his government employment,

arrest, and departure from the DRC).

           Having thus discredited the facts Badose offered in

support of his request for immigration relief, the IJ denied his

claims for asylum, withholding of removal, and protection under

the CAT.     The IJ also found, in the alternative, that Badose's

asylum and withholding-of-removal claims failed because he did not

sufficiently establish a nexus between any harm he experienced and

a protected ground (i.e., his political opinion or membership in

a particular social group); and that his CAT protection claim

failed due to insufficient evidence that any torture he experienced

was done or instigated by government officials.           Badose filed an

appeal with the BIA in early 2020.

C.   Events during the pendency of Badose's appeal

           In August 2020, the BIA initially dismissed Badose's

appeal as untimely.      However, Badose successfully asserted a

"deficient   representation"   claim,   and   the   BIA   reinstated   his

appeal in April 2022.

           In the meantime, in May 2021, Badose married Workenesh

Gregory Thier, a U.S. citizen, with whom he also had a child later

that year.    Shortly thereafter, Thier filed a marriage-based visa

petition -- a Form I-130, Petition for Alien Relative -- on behalf

of Badose, along with various forms of proof of the "bona fides"

of the marriage, including their marriage certificate and a jointly


                                - 6 -
filed tax return for 2021.    The USCIS approved the I-130 petition

on October 28, 2022.

          At that time, Badose -- with his appeal to the BIA

pending -- remained    "in   removal    proceedings."    

(a)(1).    Because the I-130 approval made him prima facie

eligible for "adjustment of status" to "that of an alien lawfully

admitted for permanent residence," 

, and on the

assumption that "the [IJ] hearing the proceeding ha[d] exclusive

jurisdiction to adjudicate" his adjustment-of-status application,

(a)(1), Badose filed a motion to remand his case

from the BIA to the IJ. In that December 2022 motion, Badose cited

the USCIS's "approv[al of] the I-130 petition filed by [his] U.S.

citizen wife" as evidence both "material" and "not available" at

the time of his October 2019 hearing or the IJ's December 2019

removal order.    Asserting that the relief sought -- adjustment of

status to that of a lawful permanent resident -- was "on the basis

of circumstances that have arisen subsequent to the hearing,"

Badose requested a remand for the IJ to consider "this new evidence

and [Badose]'s eligibility for relief."

          The government filed no response to Badose's appeal or

remand motion.

D.   The BIA's decision

          In January 2023, the BIA issued a written decision

affirming the IJ's 2019 denial of Badose's claims and denying the


                                - 7 -
motion to remand.   With respect to Badose's claims for asylum,

withholding of removal, and CAT protection, the BIA upheld the

IJ's adverse credibility finding as not clearly erroneous, noting

that the IJ had identified numerous discrepancies between Badose's

testimony and the documentary record.3   The BIA concluded that the

supportable adverse credibility determination foreclosed all three

forms of relief, and it affirmed the 2019 removal order on that

basis without reaching the IJ's alternative findings on the lack

of connection to statutorily protected grounds.4

          The BIA then considered and denied Badose's unopposed

request for remand to seek an adjustment of status.        The BIA

explained its denial as follows:

          [Badose]'s   marriage   occurred,   and  visa
          petition filed, after the Immigration Judge's
          denial, and thus [Badose] was aware that his
          status was in jeopardy.    Furthermore, as we
          have found no clear error in the Immigration
          Judge's adverse credibility finding, which
          included a finding of lying to immigration
          officials to obtain a visa, [his] lack of
          candor is a further negative discretionary

     3 The BIA assessed the IJ's adverse credibility determination
on a range of discrete issues, including: the identity (and
political affiliation) of the arresting officials in 2013;
Badose's "unplausible" release by the sympathetic guard; Badose
and his father's discovery of governmental corruption preceding
their arrest; Badose's professed lack of contact with his father;
the nature of Badose's short governmental employment; and Badose's
overall "lack of candor" in the U.S. visa application process.
     4Badose also sought relief under the CAT based on independent
evidence (i.e., DRC country conditions in 2019), but the BIA found
that claim waived. Given our disposition here, we need not delve
into this claim.


                              - 8 -
           factor. Beyond his recent marriage, [Badose]
           has not identified any other positive equities
           or extraordinary factors that would overcome
           the negative factors identified above.      As
           such, we decline to remand as a matter of
           discretion.

           Badose now seeks review of the BIA's final order of

removal, specifically asking us to vacate the BIA's denial of his

remand motion and arguing that the adverse credibility finding

upheld by the BIA is unsupported by the record.5            As it is

dispositive here, we address only Badose's assertion that the BIA

abused its discretion in denying his request for remand.

                                  II.

A.   Standard of Review

           We apply the "highly deferential abuse-of-discretion

standard" to the BIA's denial of Badose's remand motion.          Moreno

v. Garland, 

 (1st Cir. 2022) (quoting Adeyanju v.

Garland, 

 (1st Cir. 2022)).          That is, we will

"overturn" such decisions only "when 'the petitioner can establish

that the BIA made an error of law or acted in a manner that is

fairly   characterizable   as   arbitrary   and   capricious.'"     

(quoting Lee v. Barr, 

 (1st Cir. 2020)).




     5 Following oral argument, we referred Badose's case to the
First Circuit Civil Appeals Management Program ("CAMP").     The
parties subsequently informed the court that they were unable to
resolve the case.


                                 - 9 -
B.   Discussion

            To prevail on his remand motion before the BIA, Badose

had to make three showings: (1) that the evidence he was seeking

to offer was "material" and previously unavailable; (2) that this

new evidence likely would "change the result in the case"; and (3)

"prima    facie   eligibility"   for   the     relief    sought,    i.e.,   an

adjustment of status.    Id.; see also Rivera-Medrano v. Garland, 

 (1st Cir. 2022).     A noncitizen who entered the United

States illegally may apply for an adjustment of status to lawful

permanent    resident   if,   inter    alia,    "an     immigrant   visa    is

immediately available to [him] at the time his application is

filed."     

(i); see also Patel v. Garland, 

 (2022) ("[T]he Attorney General has discretion to adjust

the status of an eligible noncitizen who entered the United States

illegally to that of lawful permanent resident, forgiving the

illegal entry and protecting the noncitizen from removal on that

ground. . . . [T]he Attorney General has delegated to immigration

judges the ability to grant relief from removal.").

            As Badose correctly points out, his 2021 marriage to a

U.S. citizen and the USCIS-approved I-130 rendered him prima facie

eligible for an adjustment of status.        See Wen Yuan Chan v. Lynch,

 (1st Cir. 2016).6          Relying on this prima facie


     6 That is to say, the "approved I–130 petition from USCIS
show[ed] that" Badose now had "a visa available to [him]," giving


                                 - 10 -
eligibility, Badose asserts that the BIA abused its discretion in

rejecting his remand request by committing a half dozen material

errors of law.      As one such error alone warrants reversal, see

Khalil v. Garland, 

 (1st Cir. 2024), we focus our

attention here on only two: the BIA's arbitrary departure from a

settled   course    of    adjudication   and    the   BIA's   impermissible

factfinding.

            1.   The BIA's departure from a well-established practice

            Badose asserts that the BIA inexplicably departed from

what he characterizes as a "settled course" of routinely granting

unopposed    remand      requests   so   that   petitioners    in   removal

proceedings may pursue adjustment of status. See Thompson v. Barr,

 (1st Cir. 2020) (vacating BIA decision based

on conclusion that "the BIA departed from its settled course of

adjudication"); Adeyanju, 

 n.25 (observing that "the

BIA's variation from th[e] 'settled course' can be a ground of




him another, independent basis for pressing his "eligibility for
adjustment of status and admissibility." Wen Yuan Chan, 

.   However, the "IJ has jurisdiction to inquire into the
bona fides of the anchoring marriage even if USCIS already has
approved an I–130 petition to the alien's behoof." 

 Moreover,
the USCIS view of the marriage as bona fide does not mean that the
IJ or the BIA, in turn, must view the marriage as a positive equity
in its own decision making. See Adeyanju, 

 (holding
that the BIA continues to retain "de novo legal authority to assign
various weights -- positive or negative, heavy or little -- to
those undisputed underlying facts in its discretionary calculus").


                                    - 11 -
legal error" (quoting Perez-Trujillo v. Garland, 

(1st Cir. 2021))).

           To support this contention, Badose identifies more than

a dozen orders issued during a roughly fifteen-year period in which

the BIA -- seemingly as a matter of course -- granted unopposed

motions akin to his.       See, e.g., In re Lopez-Castillo, A206-237-

859, 2018 Immig. Rptr. LEXIS 10954, *2 (Nov. 1, 2018) ("[W]e note

that the [government] has not responded to the motion or the

appeal.    Accordingly, the following order [to grant the motion to

remand] will be entered." (citation omitted)); In re Toure, A087-

183-369,   2012   Immig.    Rptr.    LEXIS   5713,   *1   (Aug.   10,   2012)

(similar).   At least some of these orders granting remand involved

petitioners who, like Badose, were facing removal due to adverse

credibility determinations made in earlier proceedings.                  See,

e.g., In re Grullon, A096-762-369, 2015 Immig. Rptr. LEXIS 7844,

*2-3 (Mar. 10, 2015) (granting remand to pursue adjustment of

status based on daughter's immigrant visa petition despite record

evidence petitioner previously married for immigration benefits).

The government brushes these cases aside by claiming they are

"inapposite" without acknowledging these relevant procedural and

factual analogies.

           Further, in responding in this way, the government does

not assert that Badose's invocation of such a routine practice by

the BIA (granting unopposed remand requests so that petitioners in


                                    - 12 -
removal     proceedings         may    pursue      adjustments      of     status)   is

incorrect.       The government has therefore forfeited any legal

challenge to Badose's settled-course argument as well as any

factual claim that Badose's characterization of the BIA's practice

is inaccurate, incomplete, or otherwise misleading.                         See Lopez-

Reyes v. Garland, No. 22-1014, 

, at *2 (4th Cir.

Dec.      27,    2023)          ("[T]he        Government     has        forfeited   a

defense . . . because it did not raise the defense in its brief or

during oral argument."); Alvarez v. Lynch, 

 (4th

Cir. 2016) (the government forgoes consideration of defense theory

by "inexplicably ignor[ing] [an appellant's] arguments in its

response brief" and "outright fail[ing] to join in the adversarial

process").      Cf. Alejos-Perez v. Garland, 

, 807 (5th

Cir. 2024) ("[Petitioner]'s failure to raise these authorities in

his opening brief forfeits his ability to rely on them, as the

government      had   no    ability       to    respond.");    Laparra-Deleon        v.

Garland, 

 (1st Cir. 2022) (observing that the

government may waive issues not raised before the BIA).

            However,       in    a    notably    odd   argument,    the     government

instead suggests that we should dismiss Badose's settled-course

argument based on precedent from other circuits holding that the

BIA abuses its discretion by denying motions to remand solely

because the government opposed the motion with no analysis of the

merits of that opposition.             See, e.g., Melnitsenko v. Mukasey, 517


                                          - 13 -
F.3d 42, 51 (2d Cir. 2008).         In other words, the government is

saying that because the BIA may not automatically deny a motion to

remand based only on the government's unreasoned opposition, the

BIA cannot be required to automatically grant a motion when there

is no government opposition at all.

             But the issue here is not whether the BIA is required by

law to grant a motion when there is no government opposition.             The

question is whether there is a "settled course" by the BIA of

routinely     granting   such    unopposed     remand   requests    so   that

petitioners in removal proceedings may proceed for an adjustment

of status.    As a matter of law, it is arbitrary and capricious for

the BIA to suddenly and "inexplicably depart[] from established

policies, including its own precedents."         Adeyanju, 

(internal quotation marks omitted).          Badose asserts that this is

exactly what happened here.         As noted, the government has not

refuted that proposition.        Its invocation of an objection by the

courts to the BIA's practice on some occasions of denying motions

to remand just because the government opposed it (even when the

government provided little to no explanation as to why the case

should not be remanded) is entirely beside the point.               Moreover,

Melnitsenko and similar cases reflect a judgment by the courts to

safeguard a fair process for noncitizens navigating immigration

proceedings by ensuring that the BIA considers on the merits the

factors   supporting     the    noncitizen's    eligibility   for    remand.


                                   - 14 -
Hence, the holdings in those cases are far more consistent with

Badose's position here than the government's.

           We also think it noteworthy that the government not only

failed to oppose the remand request, but also did not respond to

Badose's   appeal   on   the    merits.     Although   the     timing   of   the

government's knowledge of Badose's marriage and his intent to seek

a remand is unclear, its failure to respond on the merits of his

appeal would be understandable if the government had anticipated

that the case would be remanded as a matter of course.

           We   therefore      conclude   that   the   BIA's    rejection     of

Badose's unopposed remand request was an arbitrary and capricious

departure from its settled course of adjudication.              See Thompson,

.    That error on its own warrants our vacating the

BIA's decision, with instructions on remand to return the case to

the IJ for consideration of Badose's request for adjustment of

status.    As we explain below, however, the BIA's refusal to grant

the remand motion was legally flawed for another reason, and that

error would require us to vacate the BIA's decision regardless of

its routine handling of unopposed remand motions.                  Hence, we

proceed to discuss this additional legal error by the BIA with

respect to factfinding in the event of further proceedings before

the BIA in this case.




                                   - 15 -
            2.    The BIA's factfinding on the marriage

            Badose contends that the BIA's refusal to remand was

premised in part on its implicit finding that his marriage was a

sham, and he argues that the BIA committed a legal error by making

such a finding because the BIA is barred by regulation from

engaging    in    factfinding.7          We   agree     with    Badose    that      any

determination on whether his marriage was entered into with the

proper   intent    is    a    factual    question       and    that    impermissible

factfinding by the BIA would constitute a material error of law

necessitating reversal.         See Adeyanju, 

;

Domingo-Mendez v. Garland, 

 (1st Cir. 2022) (noting

that the BIA lacks statutory authority to engage in factfinding of

its own).    The government contends that these principles do not

assist Badose.

            First,      the   government      insists    that    the    BIA   did    no

factfinding on the bona fides of Badose's marriage, with its

decision instead being fully and permissibly anchored by the IJ's

supportable adverse credibility determination.                   That contention,


     7 He also asserts that the BIA erred by impermissibly: (1)
failing to expressly evaluate the required remand criteria, see
Moreno, 

; (2) failing to make an "individualized
hardship inquiry," Perez-Trujillo, 

; (3) "attaching
weight to a factor that d[id] not appropriately bear on the
decision" when it referred to the timing of his marriage, Murillo-
Robles v. Lynch, 

 (1st Cir. 2016); and (4) departing
from its own precedent by inappropriately relying on his
preconceived intent as a negative factor. We do not address these
claims.


                                        - 16 -
however, is belied by the language the BIA used to explain its

decision: "[Badose]'s marriage occurred, and visa petition filed,

after the Immigration Judge's denial, and thus [Badose] was aware

that his status was in jeopardy."                   The insinuation here of an

improper motive for the marriage is unmistakable -- Badose married

because he was in jeopardy of removal.

              The    BIA    then    took    this    factual     determination     into

account when making its decision to deny the remand motion.                      After

discussing the timing of Badose's marriage, the BIA expressly

identified      the     IJ's     adverse    credibility        determination     as    a

"further"     negative       factor    it    relied    upon     in   exercising       its

discretion.         Plainly, the BIA's initial negative factor was its

doubt that Badose's marriage was unrelated to his immigration

status   --    a     view   that,     inescapably,      amounted      to   a   factual

determination on the legitimacy of Badose's marriage.

              Second, the government argues that the BIA was permitted

to make factual determinations in the context of Badose's request

for remand.          It maintains that the applicable version of the

regulation that prohibits the BIA from "engag[ing] in factfinding"

covers only "appeals" and not other phases of an immigration case,

even though a later version of the provision changed its language

to expressly proscribe BIA factfinding more broadly in "cases."

Compare 

(d)(3)(iv) (2008) (barring "factfinding

in   the       course       of     deciding        appeals")      with     8    C.F.R.


                                        - 17 -
§ 1003.1(d)(3)(iv)(A) (2021) (barring "factfinding in the course

of deciding cases"); see also Appellate Procedures and Decisional

Finality in Immigration Proceedings; Administrative Closure, 

, 81592 (Dec. 16, 2020) ["Appellate Procedures"].

According     to   the     government,     the    revised   regulation   is

inapplicable because       it was enjoined by a district court in

California before the BIA acted on Badose's remand motion.               See

Centro Legal de la Raza v. EOIR, 

, 928, 980

(N.D. Cal. 2021).        The government thus maintains that the prior

version of the regulation governs our review of the BIA's decision

and that, under our caselaw, the prohibition on BIA factfinding

does not apply to Badose's motion.

              This argument by the government also misses the mark

for multiple reasons.      With respect to prior cases, the government

invokes our unpublished decision in Tsai v. Holder, 

 (1st Cir. 2013), as support for its insistence that the BIA

could properly perform factfinding in the context of Badose's

motion.     There we observed: "Although Tsai is correct that 'the

Board will not engage in factfinding in the course of deciding

appeals,' 

(d)(3)(iv) [2008], this case concerns

a motion to reopen and not an appeal of an IJ's decision."            Tsai,

.       As an unpublished decision, however, Tsai has

limited     precedential    value,   and    its    relevance   is   further

diminished by the fact that we concluded that the BIA had not


                                  - 18 -
engaged in factfinding -- meaning that the language quoted by the

government is mere dicta.8

          More importantly, however, the shift in language from

"appeals" to "cases" in 

(d)(3)(iv) -- which

occurred after Tsai was decided -- did not represent a change in

the scope of the regulation.       In revising the regulation, the

agency explained that the BIA "adjudicates multiple types of cases,

not just appeals," i.e., "cases may be initiated [by]: (1) The

filing of a Notice of Appeal, (2) the filing of a motion directly

with the [BIA] (e.g., a motion to reconsider or a motion to

reopen), or (3) the receipt of a remand."        Appellate Procedures,

85 Fed. Reg. at 81592.    The regulation's language was revised to

explicitly   reflect   that   diversity   and   to   "ensure   that   [the

provision] is clearly applicable to all cases before the [BIA],

not solely cases arising through appeals."       Id. (emphasis added);

id. at n.11 (applying same reasoning specifically to subsection

(d)(3)(iv)).




     8  Tsai involved the BIA's assessment of the limited
evidentiary value of non-authenticated documents in deciding
whether to revisit a removal order (based on an alleged change in
country conditions) that had been issued, appealed, and affirmed
years earlier. See Tsai, 

. The government
seems to be suggesting that the BIA's evaluation of the
authenticity of documents is somehow equivalent to the BIA's
conclusion that Badose's marriage itself was not authentic. If
so, that suggestion is plainly preposterous.


                                - 19 -
            The status of the revised regulation -- i.e., the impact

of the California district court's enjoining it -- is therefore

irrelevant to our decision in this case and an issue we need not

discuss.9     Nor does the observation about the scope of 

(d)(3)(iv)     by     the    panel     in    Tsai   --      whatever    its

precedential value -- remain pertinent in construing the "appeals"

version of the regulation. The legislative history described above

firmly   establishes   that    the    regulation's        revised    language    --

expressly barring BIA factfinding in "deciding cases" -- was

intended    to   clarify    the     scope     of    the   regulation,     not    to

substantively change it.       See Brown v. Thompson, 

(4th Cir. 2004) ("In determining whether an amendment clarifies or

changes an existing law, a court, of course, looks to statements

of intent made by the legislature that enacted the amendment.").

And there is no doubt here that the BIA "decid[ed]" Badose's "case"

when it improperly rejected his remand motion based in part on its

own factfinding. That decision closed the door on Badose's pursuit

of an adjustment of status, ending his immigration proceedings

altogether.


     9 In Adeyanju, we assumed the earlier version of § 1003.1
applied, citing the decision in Centro Legal de la Raza enjoining
its implementation. See 

 n.6. At least one circuit
has declined to treat that decision as binding.      See Chen v.
Garland, 

, 253 n.7 (2d Cir. 2022) ("An agency subject
to review in the Second Circuit cannot point to a decision from
the Northern District of California to explain why it failed to
follow its regulations.").


                                     - 20 -
          Hence, even under the earlier version of the regulation,

the BIA was barred from using its own factfinding to decide

Badose's motion to remand. See, e.g., Liquilux Gas Corp. v. Martin

Gas Sales, 

 (1st Cir. 1992) ("[T]he amendment was

not a change at all, but a clarification that did not alter the

law, and merely explicated it."); NCNB Texas Nat'l Bank v. Cowden,

 (5th Cir. 1990) ("[A] legislative body may amend

statutory language 'to make what was intended all along even more

unmistakably clear.'" (quoting United States v. Montgomery Cnty.,

, 1003 (4th Cir. 1985))).       If the BIA determined that

"further factfinding [was] needed in [this] particular case,"

despite the government's lack of opposition to Badose's remand

motion or his merits appeal, the only available course was to

"remand the proceeding to the [IJ]."      

(d)(3)(iv);

see also Rodriguez v. Holder, 

 (9th Cir.

2012)   (remand    to   IJ    required    for   outcome   determinative

supplemental factfinding).     By instead offering its own assessment

of   Badose's     marriage,   the   BIA    engaged   in   impermissible

factfinding, rendering its decision to deny remand an abuse of

discretion.     See, e.g., Adeyanju, 

 ("A 'material

error of law automatically constitutes an abuse of discretion.'"

(quoting Aponte v. Holder, 

 (1st Cir. 2010))).

          On the record before us, we can only conclude that the

BIA improperly denied Badose's unopposed remand motion both by


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arbitrarily deviating from a standard course of practice and by

improperly   engaging   in   factfinding   in   violation   of   

(d)(3).    Badose is therefore entitled to a remand to the

IJ so that he can present his case for adjustment of status based

on his marriage.     See Patel, 

 (explaining that

adjustment of status is discretionary notwithstanding noncitizen's

eligibility for such relief).

                                  III.

          Accordingly, we GRANT the petition for review; VACATE

the BIA's decision; and REMAND the case to the BIA with directions

that the BIA grant Badose's motion to remand the case to the IJ

for further proceedings consistent with this opinion.

          So ordered.




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