MARIO FONSECA-FONSECA V. MERRICK GARLAND, No. 20-71977 (9th Cir. 2023)
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Petitioner, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals (“BIA”) denial of his motion to reopen. Petitioner sought to reopen his immigration proceedings to apply for cancellation of removal. The BIA found that he failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that would likely change the result in his case. The parties disagree on a threshold issue—whether the BIA applied the correct burden of proof.
The Ninth Circuit granted the petition for review. The panel clarified any possible confusion in this circuit’s case law regarding a petitioner’s burden of proof in a motion to reopen. Prima facie eligibility for relief requires only a threshold showing of eligibility—a “reasonable likelihood” that the petitioner would prevail on the merits if the motion to reopen was granted. To be eligible for a discretionary grant of relief, a petitioner must present new evidence that “would likely change” the result in the case. Because the BIA erred by applying the wrong legal standard, the panel remanded to the BIA to adjudicate the motion to reopen under the proper standard.
Court Description: Immigration. The panel granted a petition for review of the Board of Immigration Appeals’ denial of Mario Fonseca-Fonseca’s motion to reopen immigration proceedings to apply for cancellation of removal, and remanded for consideration of the motion under the correct standard.
The BIA can deny a motion to reopen on any one of at least three independent grounds: for failure to establish a prima facie case for the relief sought; for failure to introduce previously unavailable, material evidence; or based on a determination that even if these requirements were satisfied, a movant would not be entitled to the discretionary grant of relief sought. Here, the BIA denied petitioner’s motion to reopen after concluding that Fonseca-Fonseca failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that “would likely change” the result of his case.
The panel clarified any possible confusion in this circuit’s case law regarding a petitioner’s burden of proof in a motion to reopen. Prima facie eligibility for relief requires only a threshold showing of eligibility—a “reasonable likelihood” that the petitioner would prevail on the merits if the motion to reopen were granted. To be eligible for a discretionary grant of relief, a petitioner must present new evidence that “would likely change” the result in the case. Because the BIA erred by applying the wrong legal standard, the panel remanded to the BIA to adjudicate the motion to reopen under the proper standard.
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