Garcia Hernandez v. Garland, No. 20-1678 (4th Cir. 2022)
Annotate this CaseThe Fourth Circuit granted the petition for review challenging the BIA's dismissal of petitioner's appeal of the IJ's denial of petitioner's motion to reopen removal proceedings. The court concluded that petitioner's motion to reopen should have been considered under 8 C.F.R. 1003.23(b)(3), not section 1003.23(b)(4). Therefore, petitioner filed his motion within 90 days of the final hearing, in which case section 1003.23(b)(3) applies instead of section 1003.23(b)(4). In this case, the BIA abused its discretion by failing to evaluate whether petitioner offered, in the proper form and with the appropriate contents, evidence that was material and not previously available at the initial hearing. The court also concluded that Zambrano v. Sessions', 878 F.3d 84 (4th Cir. 2017). A.R. 47, 64, framework in examining changed circumstances should have been applied to petitioner's asylum application. The court vacated and remanded for the BIA to consider petitioner's motion to reopen under the appropriate standard. The BIA should also address petitioner's asylum application under the framework of Zambrano and conduct any further proceedings consistent with the opinion.
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