MOTIONS TO REOPEN OR RECONSIDER

IMMIGRATION PROCEEDINGS
Table of Contents

I. DIFFERENCES BETWEEN MOTIONS TO REOPEN AND MOTIONS

TO RECONSIDER ..........................................................................................1

A. Motion to Reopen ..................................................................................1

B. Motion to Reconsider ............................................................................3
C. Motion to Remand .................................................................................4
D. Motion to Reissue..................................................................................5
E. Improperly Styled Motions ...................................................................5
II. JURISDICTION ..............................................................................................6
A. Finality of the Underlying Order.........................................................10
B. Filing Motion to Reopen or Reconsider Not a Jurisdictional
Prerequisite to Filing a Petition for Review ........................................11
C. No Tolling of the Time Period to File Petition for Review ................11
D. No Automatic Stay of Deportation or Removal..................................11
1. Exception for In Absentia Removal or Deportation .................11
E. Consolidation.......................................................................................11
F. Departure from the United States ........................................................11
III. STANDARD OF REVIEW ...........................................................................13
A. Generally .............................................................................................13
B. Full Consideration of All Factors ........................................................15
1. Later-Acquired Equities ............................................................17
C. Explanation of Reasons .......................................................................17
D. Irrelevant Factors.................................................................................18
E. Credibility Determinations ..................................................................18
IV. REQUIREMENTS FOR A MOTION TO REOPEN....................................19
A. Supporting Documentation .................................................................19

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 1. Exception ..................................................................................20
B. Previously Unavailable Evidence........................................................20
C. Explanation for Failure to Apply for Discretionary Relief .................21
D. Prima Facie Eligibility for Relief ........................................................21
E. Discretionary Denial............................................................................22
F. Failure to Depart Voluntarily ..............................................................22
G. Appeal of Deportation Order...............................................................25
H. Fugitive Disentitlement Doctrine ........................................................25
V. TIME AND NUMERICAL LIMITATIONS ................................................25
A. Generally .............................................................................................25
1. Time Limitations .......................................................................25
2. Numerical Limitations ..............................................................27
B. Exceptions to the Ninety-Day/One-Motion Rule................................28
1. In Absentia Orders ....................................................................28
a. Exceptional Circumstances.............................................28
(i) Evidentiary Requirements ....................................29
(ii) Cases Finding Exceptional Circumstances ..........29
(iii) Cases Finding No Exceptional Circumstances ....30
(iv) Arriving Late While IJ On Bench ........................31
b. Improper Notice of Hearing ...........................................31
c. Proper Notice Requirements...........................................33
(i) Presumption of Proper Notice ..............................33
(ii) Pre-IIRIRA Proceedings ......................................34
(A) OSCs ..........................................................34
(B) Hearing Notices..........................................35
(iii) Removal Proceedings ...........................................36
(iv) Notice to Counsel Sufficient ................................37
(v) Notice to Juvenile Insufficient .............................38

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 (vi) Notice to Applicant No Longer Residing in the
United States.........................................................38
2. Asylum and Withholding Claims .............................................38
3. Jointly-Filed Motions ................................................................40
4. Government Motions Based on Fraud ......................................40
5. Movant in Custody ....................................................................40
6. Sua Sponte Reopening by the Agency ......................................41
VI. EQUITABLE TOLLING ..............................................................................43
A. Circumstances Beyond the Applicant’s Control .................................43
B. Fraudulent or Erroneous Attorney Conduct ........................................44
C. Changes in Law ...................................................................................45
D. Due Diligence ......................................................................................46
VII. INEFFECTIVE ASSISTANCE OF COUNSEL ...........................................47
A. Presented Through a Motion to Reopen..............................................47
B. Exhaustion and Proper Forum .............................................................47
C. Standard of Review .............................................................................48
D. Requirements for Due Process Violation ............................................49
1. Constitutional Basis ..................................................................49
2. Counsel’s Competence..............................................................50
3. Prejudice....................................................................................51
a. Exception for In Absentia Orders ...................................53
E. The Lozada Requirements...................................................................53
1. Exceptions .................................................................................54
F. Cases Discussing Ineffective Assistance of Counsel ..........................55
1. Cases Finding Ineffective Assistance .......................................55
2. Cases Rejecting Ineffective Assistance of Counsel Claims .....57
VIII. CASES ADDRESSING MOTIONS TO REOPEN FOR SPECIFIC RELIEF
.......................................................................................................................58
A. Motions to Reopen to Apply for Suspension of Deportation..............58

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 B. Motions to Reopen to Apply for Asylum and Withholding ...............59
C. Motions to Reopen to Apply for Relief Under the Convention Against
Torture .................................................................................................60
D. Motions to Reopen to Apply for Adjustment of Status ......................61
E. Motion to Reopen Reasonable Fear Proceeding .................................62
F. Motions to Reopen to Apply for Other Relief ....................................62

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MOTIONS TO REOPEN OR RECONSIDER IMMIGRATION
PROCEEDINGS
IIRIRA transformed motions to reopen from a regulatory to a statutory form
of relief. Dada v. Mukasey, 554 U.S. 1, 14 (2008). For individuals in removal
proceedings, motions to reopen and to reconsider are governed by 8 U.S.C.
§ 1229a(c)(7) and (6) (formerly codified at 8 U.S.C. § 1229a(c)(6) and (5)). For
deportation cases pending before the April 1, 1997 effective date of IIRIRA,
motions to reopen or to reconsider are governed by 8 C.F.R. §§ 1003.2(c) and
1003.23(b) (formerly codified at 8 C.F.R. §§ 3.2 and 3.23).

I. DIFFERENCES BETWEEN MOTIONS TO REOPEN AND

MOTIONS TO RECONSIDER

A. Motion to Reopen

“The motion to reopen is an ‘important safeguard’ intended ‘to ensure a

proper and lawful disposition’ of immigration proceedings.” Cuenca v. Barr, 956
F.3d 1079, 1082 (9th Cir. 2020) (as amended) (internal quotation marks and
citation omitted). See also Kucana v. Holder, 558 U.S. 233, 242 (2010); Dada v.
Mukasey, 554 U.S. 1 (2008)); Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir.
2014).

“[E]very alien ordered removed” also “has a right to file one motion”
with the IJ or Board to “reopen his or her removal proceedings.”
[Dada v. Mukasey, 554 U.S. 1, 4–5 (2008)]; see § 1229a(c)(7)(A).
Subject to exceptions …, that motion to reopen “shall be filed within
90 days” of the final removal order. § 1229a(c)(7)(C)(i). Finally, the
BIA’s regulations provide that, separate and apart from acting on the
alien’s motion, the BIA may reopen removal proceedings “on its own
motion”—or, in Latin, sua sponte—at any time. 8 C.F.R. § 1003.2(a)
(2015).

Mata v. Lynch, 576 U.S. 143, 145 (2015). See also Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062, 1067 (2020) (the INA permits a person one motion to reopen and
the motion must usually be filed within 90 days of the date of entry of a final
administrative order of removal).
“A motion to reopen is a traditional procedural mechanism in immigration
law with a basic purpose that has remained constant – to give aliens a means to

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provide new information relevant to their cases to the immigration authorities.”
Meza-Vallejos v. Holder, 669 F.3d 920, 924 (9th Cir. 2012) (internal quotation
marks and citation omitted) (as amended); see also Guerrero-Lasprilla, 140 S. Ct.
at 1067 (a motion to reopen is a form of procedural relief that asks the BIA to
change its decision in light of newly discovered evidence); Ayala v. Sessions, 855
F.3d 1012, 1020 (9th Cir. 2017) (“a motion to reopen may be granted only upon a
proffer of new evidence that is material and was not available and could not have
been discovered or presented at the former hearing.” (quotation marks omitted));
Oyeniran v. Holder, 672 F.3d 800, 808 (9th Cir. 2012) (motion to reopen alleges
new facts bearing upon agency’s earlier decision). A motion to reopen is based on
factual grounds, and seeks a fresh determination based on newly discovered facts
or a change in the applicant’s circumstances since the time of the hearing. See 8
U.S.C. § 1229a(c)(7)(B) (removal proceedings); 8 C.F.R. § 1003.2(c); Oyeniran,
672 F.3d at 808; Ali v. Holder, 637 F.3d 1025, 1031–32 (9th Cir. 2011);
Iturribarria v. INS, 321 F.3d 889, 895–96 (9th Cir. 2003); see also Azarte v.
Ashcroft, 394 F.3d 1278, 1283 (9th Cir. 2005) (providing history of motions to
reopen), abrogated on other grounds by Dada v. Mukasey, 554 U.S. 1, 19–21
(2008).

Whereas “[a] motion to reconsider seeks to correct alleged errors of fact or

law,” a “motion to reopen … is purely fact-based, seeking to present newly
discovered facts or changed circumstances since a petitioner’s hearing.” Doissaint
v. Mukasey, 538 F.3d 1167, 1170 (9th Cir. 2008). Accordingly, “when the BIA
commits legal error in a petitioner’s direct appeal, the BIA cannot cure that error in
a denial of the petitioner’s motion to reopen.” Id. at 1170–71 (the BIA, which
erroneously deemed CAT claim abandoned on direct appeal, could not cure error
on motion to reopen, because “the legal basis for the IJ’s denial of Petitioner’s
CAT claim – the IJ’s adverse credibility finding – was not before the BIA on
Petitioner’s motion to reopen”).

A petitioner’s assertion of new legal arguments does not constitute new

“facts” warranting reopening. Membreno v. Gonzales, 425 F.3d 1227, 1229–30
(9th Cir. 2005) (en banc).

A petitioner may move to reopen for the purpose of submitting a new

application for relief, provided such motion is accompanied by the appropriate
application for relief and all supporting documentation, and the evidence sought to
be offered is material and was not available and could not have been discovered or
presented at the former hearing. See 8 C.F.R. § 1003.2(c)(1). However, a motion
to reopen for the purpose of affording the petitioner an opportunity to apply for any

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form of discretionary relief shall not be granted “if it appears that the [petitioner’s]
right to apply for such relief was fully explained to him or her and an opportunity
to apply therefore was afforded at the former hearing, unless the relief is sought on
the basis of circumstances that have arisen subsequent to the hearing.” Id.
Furthermore, “[a]liens who seek to remand or reopen proceedings to pursue relief
bear a ‘heavy burden’ of proving that, if proceedings were reopened, the new
evidence would likely change the result in the case.” Shin v. Mukasey, 547 F.3d
1019, 1025 (9th Cir. 2008). “[A] prima facie case for relief is sufficient to justify
reopening, … and a prima facie case is established when ‘the evidence reveals a
reasonable likelihood that the statutory requirements for relief have been satisfied.”
See Tadevosyan v. Holder, 743 F.3d 1250, 1254–55 (9th Cir. 2014) (“‘A motion to
reopen proceedings for the purpose of submitting an application for relief must be
accompanied by the appropriate application for relief and all supporting
documentation.’ But the BIA does ‘not require[ ] a conclusive showing that,
assuming the facts alleged to be true, eligibility for relief has been established.’”
(internal citations omitted)).

“[W]hen a petitioner seeks to reopen proceedings as to the original claim,

nothing in § 1003.2(c)(1) requires the petitioner to attach a new application for
relief instead of his initial (relevant) application for relief.” Aliyev v. Barr, 971
F.3d 1085, 1087 (9th Cir. 2020) (holding that the BIA abused its discretion in
denying petitioner’s motion to reopen on the ground that he failed to attach the
“appropriate application for relief” where he did not attach a new asylum
application, but did however, attach his prior asylum application – the one he
sought to reopen).

Motions to reopen are also the appropriate avenue to raise ineffective

assistance of counsel claims. See Iturribarria, 321 F.3d at 897; see also Correa-
Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013) (“Indeed, as a practical
matter, a motion to reopen is the only avenue ordinarily available to pursue
ineffective assistance of counsel claims.” (quoting Iturribarria, 321 F.3d at 896)).

B. Motion to Reconsider

A motion to reconsider is based on legal grounds, and seeks a new

determination based on alleged errors of fact or law. See 8 U.S.C. § 1229a(c)(6); 8
C.F.R. § 1003.2(b)(1); see also Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir.
2017) (a motion to reconsider addresses whether an IJ made errors of law or fact);
Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004). A motion to reconsider must be
accompanied by a statement of reasons and supported by pertinent authority. See 8

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U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321
F.3d 889, 895–96 (9th Cir. 2003). “A motion to reconsider a final order of
removal generally must be filed within thirty days of the date of entry of the
order.” Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020) (citing 8 U.S.C.
§ 1229a(c)(6)(B)).

The BIA’s grant of a motion to reconsider does not divest the court of
jurisdiction. See Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745–46 (9th Cir.
2008) (explaining that although the grant of a motion to reopen vacates the final
order of deportation, a motion to reconsider is fundamentally different than a
motion to reopen, and does not divest the court of appeals of jurisdiction),
overruled on other grounds by Marmolejo-Campos v. Holder, 558 F.3d 903 (9th
Cir. 2009) (en banc); see also Robles-Urrea v. Holder, 678 F.3d 702, 707 (9th Cir.
2012) (explaining that the grant of the motion to reconsider did not divest court of
jurisdiction over the petition of review of initial order where the analysis and
results reached after reconsideration were substantially the same; but further
explaining that the precedential decision issued upon granting the motion to
reconsider effectively superseded the initial opinion, and thus the petition for
review of the initial decision was moot).

The procedures for both motions for reconsideration and motions to reopen
are the same. See Bartolome v. Sessions, 904 F.3d 803, 815 (9th Cir. 2018).

C. Motion to Remand

A motion to remand removal proceedings from the BIA to the IJ is similar to

a motion to reopen and should be drafted in conformity with the regulations
pertinent to motions to reopen. Angov v. Lynch, 788 F.3d 893, 897 (9th Cir. 2015)
(holding BIA did not abuse its discretion in denying motion to remand where
petitioner did not provide any evidence supporting the motion nor explain why he
believed a regulation had been violated). A motion to reopen or reconsider filed
while an immigration judge’s deportation or removal decision is before the BIA on
direct appeal will be treated as a motion to remand the proceedings to the
immigration judge. See 8 C.F.R. § 1003.2(b)(1) and (c)(4); Movsisian v. Ashcroft,
395 F.3d 1095, 1097 (9th Cir. 2005); Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir.
1987). “The formal requirements of the motion to reopen and those of the motion
to remand are for all practical purposes the same.” Rodriguez, 841 F.2d at 867; see
also Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008); cf. Guzman v.
INS, 318 F.3d 911, 913 (9th Cir. 2003) (per curiam) (motion to remand filed while

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appeal of IJ’s denial of previous motion to reopen was pending was properly
treated as a second motion to reopen).

“A party asserting that the [BIA] cannot properly resolve an appeal without
further factfinding must file a motion for remand.” 8 C.F.R. § 1003.1(d)(3)(iv);
see also Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1119 (9th Cir. 2019).

See also Taggar v. Holder, 736 F.3d 886, 889–90 (9th Cir. 2013)
(concluding denial of motion to remand was not an abuse of discretion);
Movsisian, 395 F.3d at 1097–98 (holding that the BIA must articulate its reasons
for denying a motion to remand); Narayan v. Ashcroft, 384 F.3d 1065, 1068 (9th
Cir. 2004) (holding that the BIA must address and rule on substantive remand
motions).

D. Motion to Reissue

A motion to reissue the agency decision is treated as a motion to reopen.

See Coyt v. Holder, 593 F.3d 902, 904 & n.1 (9th Cir. 2010) (government equated
motion to reissue with a motion to reopen); Chen v. U.S. Atty. Gen., 502 F.3d 73,
75 (2d Cir. 2007) (“A motion to reissue is treated as a motion to reopen.” (citing
Tobeth-Tangang v. Gonzales, 440 F.3d 537, 539 n.2 (1st Cir. 2006))). See also
Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1077 (9th Cir. 2010) (the BIA
construed the petitioner’s motion to reopen and reinstate as a motion to reissue,
and this court referred to the motion as a “motion to reopen/reissue,” reviewing for
abuse of discretion); Singh v. Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007)
(petitioner “filed a motion to reopen with the BIA requesting that it reissue its
decision so [he] could timely appeal to this court).

E. Improperly Styled Motions

Where a petitioner improperly titles a motion to reopen or to reconsider, the

BIA should construe the motion based on its underlying purpose. See Mohammed
v. Gonzales, 400 F.3d 785, 792–93 (9th Cir. 2005) (noting that the BIA properly
construed “motion to reconsider” based on ineffective assistance of counsel as a
motion to reopen, and that petitioner’s subsequent “motion to reopen” should have
been construed as a motion to reconsider the BIA’s previous decision). For
example, in Hernandez-Velasquez v. Holder, 611 F.3d 10733, 1075–77 (9th Cir.
2010), the BIA construed the petitioner’s motion to reopen and reinstate as a
motion to reissue, where she claimed she never received notice of the BIA’s final

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decision and was requesting that the decision be reissued so that she could timely
pursue her legal alternatives.

“Appeals asserting ineffective assistance claims, like improperly captioned

motions asserting such claims, are effectively motions to reopen.” Correa-Rivera
v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013) (where petitioner improperly used
an appeal to the BIA as vehicle to allege ineffective assistance of counsel, instead
of a motion to reopen is which is as a practical matter “the only avenue ordinarily
available to pursue ineffective assistance of counsel claims,” the appeal was
effectively a motion to reopen).

II. JURISDICTION

As [the Supreme Court] held in Kucana v. Holder, circuit courts have

jurisdiction when an alien appeals from the Board’s denial of a motion
to reopen a removal proceeding. See [558 U.S. at 242]. The INA, in
combination with a statute cross-referenced there, gives the courts of
appeals jurisdiction to review “final order[s] of removal.” 8 U.S.C.
§ 1252(a)(1); 28 U.S.C. § 2342. That jurisdiction, as the INA
expressly contemplates, encompasses review of decisions refusing to
reopen or reconsider such orders. See 8 U.S.C. § 1252(b)(6) (“[A]ny
review sought of a motion to reopen or reconsider [a removal order]
shall be consolidated with the review of the [underlying] order”).
Indeed, as [the Court] explained in Kucana, courts have reviewed
those decisions for nearly a hundred years; and even as Congress
curtailed other aspects of courts’ jurisdiction over BIA rulings, it left
that authority in place. See 558 U.S., at 242–251, [].

Nothing changes when the Board denies a motion to reopen because it

is untimely—nor when, in doing so, the Board rejects a request for
equitable tolling. Under the INA, as under our century-old practice,
the reason for the BIA’s denial makes no difference to the
jurisdictional issue. Whether the BIA rejects the alien’s motion to
reopen because it comes too late or because it falls short in some other
respect, the courts have jurisdiction to review that decision.

Mata v. Lynch, 576 U.S. 143, 147–48 (2015). See also Lona v. Barr, 958 F.3d
1225, 1229 (9th Cir. 2020) (reviewing the denial of a motion to reconsider);
Oyeniran v. Holder, 672 F.3d 800, 805 (9th Cir. 2012) (The denial of a motion to
reopen is a final administrative decision generally subject to judicial review in the

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court of appeals.); Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004)
(permanent rules); Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997)
(concluding “that other recent changes to the INA did not alter our traditional
understanding that the denial of a motion to reconsider or to reopen generally does
fall within our jurisdiction over final orders of deportation”); see also 8 U.S.C.
§ 1252(b)(6) (“When a petitioner seeks review of an order under this section, any
review sought of a motion to reopen or reconsider the order shall be consolidated
with the review of the order”).

Jurisdiction over motions to reopen may be limited where the underlying

request for relief is discretionary.

Section 1252(a)(2)(B)(i) permits the exercise of jurisdiction in cases

in which the BIA rules that a motion to reopen fails to satisfy
procedural standards such as the evidentiary requirements specified in
8 C.F.R. § 1003.2(c)(1), but bars jurisdiction where the question
presented is essentially the same discretionary issue originally
decided.

[Thus, i]f … the BIA determines that a motion to reopen proceedings

in which there has already been an unreviewable discretionary
determination concerning a statutory prerequisite to relief does not
make out a prima facie case for that relief, § 1252(a)(2)(B)(i)
precludes our visiting the merits, just as it would if the BIA had
affirmed the IJ on direct appeal.

Fernandez v. Gonzales, 439 F.3d 592, 600–01 (9th Cir. 2006). See also Vilchiz-
Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order) (concluding that denial of
motion to reconsider was outside of court’s jurisdiction because it could not
“reconsider the discretionary, fact-based determination that petitioners failed to
demonstrate the requisite hardship” and also that the court lacked jurisdiction over
the motion to reopen to seek prosecutorial discretion based on the recent order of
President Obama, citing 8 U.S.C. § 1252(g)).

However, “[w]here the relief sought is formally the same as was previously
denied but the evidence submitted with a motion to reopen is directed at a different
basis for providing the same relief, the circumstances can take the matter out of the
realm of § 1252(a)(2)(B)(i).” Fernandez, 439 F.3d at 601. For example, the court

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would have jurisdiction to review the denial of a motion to reopen seeking
consideration of non-cumulative evidence showing hardship for cancellation
eligibility, such as a newly-discovered life-threatening medical condition afflicting
a qualifying relative. Id. at 601–02. See also Garcia v. Holder, 621 F.3d 906,
910–12 (9th Cir. 2010) (discussing Fernandez and concluding that the court had
jurisdiction where the motion to reopen presented hardship evidence regarding a
medical condition that was new and distinct from the evidence presented at
petitioners’ hearing, which focused on the educational, cultural, and economic
challenges that the daughters would face in Mexico).

The court also has jurisdiction to review motions to reopen seeking

consideration of new requests for discretionary forms of relief. See de Martinez v.
Ashcroft, 374 F.3d 759, 761 (9th Cir. 2004) (holding that court retained jurisdiction
to review denial of motion to reopen to apply for adjustment of status); see also
Medina-Morales v. Ashcroft, 371 F.3d 520, 527 (9th Cir. 2004) (holding that
§ 1252(a)(2)(B)(i) did not preclude review of the denial of a motion to reopen to
re-apply for adjustment of status where the agency had not previously made a
discretionary decision on the adjustment application); Zazueta-Carrillo v. Ashcroft,
322 F.3d 1166, 1169–70 (9th Cir. 2003) (holding that § 1252(a)(2)(B)(i) did not
bar review of the denial of a motion to reopen to apply for adjustment of status);
Arrozal v. INS, 159 F.3d 429, 431–32 (9th Cir. 1998) (holding that § 309(c)(4)(E)
of the transitional rules did not bar review of the denial of petitioner’s motion to
reopen to apply for suspension of deportation).

Likewise, the court has jurisdiction to review the denial of motions to reopen
in which an independent claim of ineffective assistance of counsel is at issue.
Fernandez, 439 F.3d at 602. This is true even where the ineffectiveness and
prejudice evaluations require an indirect weighing of discretionary factors. See id.;
see also Rodriguez-Lariz v. INS, 282 F.3d 1218, 1223 (9th Cir. 2002) (holding that
court retained jurisdiction to review denial of motion to reopen arguing ineffective
assistance of counsel in a suspension of deportation case).

The court generally lacks jurisdiction to review the BIA’s decision not to
invoke its sua sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a).
See Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1115 (9th Cir. 2019); Menendez v.
Whitaker, 908 F.3d 467, 471 (9th Cir. 2018); Singh v. Holder, 771 F.3d 647, 650
(9th Cir. 2014); Go v. Holder, 744 F.3d 604, 609–10 (9th Cir. 2014) (the court
lacks jurisdiction to review the BIA’s decision not to invoke its sua sponte
authority to reopen proceedings); Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th

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Cir. 2009); Toufighi v. Mukasey, 538 F.3d 988, 993 n.8 (9th Cir. 2008); Ekimian v.
INS, 303 F.3d 1153, 1159–60 (9th Cir. 2002). However,

[the] court has jurisdiction to review Board decisions denying sua

sponte reopening for the limited purpose of reviewing the reasoning
behind the decisions for legal or constitutional error. If, upon exercise
of its jurisdiction, this court concludes that the Board relied on an
incorrect legal premise, it should “remand to the BIA so it may
exercise its authority against the correct ‘legal background.’ ” Pllumi,
642 F.3d at 160 (quoting Mahmood, 570 F.3d at 469). Once it does
so, this court will have no jurisdiction to review the sua sponte
decision, as Ekimian instructs.

Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (as amended); see also Lona v.
Barr, 958 F.3d 1225, 1227 (9th Cir. 2020) (stating Bonilla remains settled law in
the Ninth Circuit); Menendez-Gonzalez, 929 F.3d at 1115; Menendez, 908 F.3d at
471 (concluding BIA did not rely on an appropriate ground in refusing to reopen
Rodriguez’s case, and granting petition for review); Singh, 771 F.3d at 650 (where
the BIA “concludes that it lacks the authority to reopen, rather than denying a
motion to reopen as an exercise of discretion … Ekimian does not preclude [the
court’s] jurisdiction.”).

Although 8 C.F.R. § 1003.1(c) “grants the BIA authority to accept a

procedurally improper appeal by certification,” the court lacks jurisdiction to
review the BIA’s decision of whether to certify a claim under 8 C.F.R. § 1003.1(c)
because such decision is committed to agency discretion. See Idrees v. Barr, 923
F.3d 539, 542–43 & n.3 (9th Cir. 2019) (dismissing challenge to the agency’s
discretionary decision not to certify petitioner’s ineffective assistance of counsel
claim, where petitioner challenged only the BIA’s exercise of discretion, and
asserted no constitutional or legal error).

In cases involving noncitizens who are removable for having committed

certain crimes, the Supreme Court has held that the courts of appeals have
jurisdiction to consider the noncitizen’s claims of due diligence for the purpose
equitably tolling the deadline for filing a motion to reopen, when the underlying
facts are not in dispute. See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068–73
(2020).

The BIA’s decision that a petitioner withdrew his appeal is “the logical and
functional equivalent” of an order denying a motion to reopen or reconsider a final

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order of removal, which the court has jurisdiction to review. Lopez-Angel v. Barr,
952 F.3d 1045, 1047 (9th Cir. 2020) (as amended).

Cross-reference: Jurisdiction over Immigration Petitions, Jurisdiction over

Motions to Reopen.

A. Finality of the Underlying Order

The filing of a motion to reopen does not disturb the finality of the
underlying deportation or removal order. See Pablo v. INS, 72 F.3d 110, 113 (9th
Cir. 1995). However, if the BIA grants a motion to reopen, “there is no longer a
final decision to review,” and the petition should be dismissed for lack of
jurisdiction. Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (order);
Cordes v. Mukasey, 517 F.3d 1094, 1095 (9th Cir. 2008) (order) (vacating prior
opinion where unbeknownst to the court “the BIA sua sponte reopened the
underlying proceeding, vacated its order of removal, and remanded the matter to
the [IJ]” thereby stripping the court of jurisdiction); Timbreza v. Gonzales, 410
F.3d 1082, 1083 (9th Cir. 2005) (order) (advising parties to notify the court when
the BIA grants a motion to reopen while a petition for review is pending); cf.
Plasencia-Ayala v. Mukasey, 516 F.3d 738, 745–46 (9th Cir. 2008) (explaining
that although the grant of a motion to reopen vacates the final order of deportation,
a motion to reconsider is fundamentally different than a motion to reopen, and does
not divest the court of appeals of jurisdiction), overruled on other grounds by
Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc). Where the
court is the only tribunal addressing a noncitizen’s removability and there is a final
removal order, even if the BIA granted a motion for reconsideration on some
aspect of the proceedings, the court retains jurisdiction. See Saavedra-Figueroa v.
Holder, 625 F.3d 621, 624 (9th Cir. 2010) (explaining the court “lack[s]
jurisdiction over a petition for review when the BIA reopens an alien’s removal
proceedings[,]” and concluding that although the BIA granted a motion for
reconsideration, because the BIA affirmed its earlier decision, there remained a
final order of removal which the court had jurisdiction to review).

This court may review the denial of a motion to reopen even if a motion to
reconsider is pending before the BIA. See Singh v. INS, 213 F.3d 1050, 1052 n.2
(9th Cir. 2000).

February 2021 C-10

 B. Filing Motion to Reopen or Reconsider Not a Jurisdictional
Prerequisite to Filing a Petition for Review

The filing of a motion to reopen or reconsider with the BIA is not a

jurisdictional prerequisite to filing a petition for review with the court of appeals.
See Castillo-Villagra v. INS, 972 F.2d 1017, 1023–24 (9th Cir. 1992); see also
Noriega-Lopez v. Ashcroft, 335 F.3d 874, 881 (9th Cir. 2003) (motions to reopen
and reconsider are not remedies available as of right and not required for
exhaustion).

C. No Tolling of the Time Period to File Petition for Review

The time period for filing a petition for review with the court of appeals is
not tolled by the filing of a motion to reopen. See Stone v. INS, 514 U.S. 386, 405–
06 (1995); Martinez-Serrano v. INS, 94 F.3d 1256, 1258 (9th Cir. 1996).

D. No Automatic Stay of Deportation or Removal

The filing of a motion to reopen or reconsider does not automatically result

in a stay of deportation or removal. See 8 C.F.R. § 1003.2(f); Baria v. Reno, 180
F.3d 1111, 1113 (9th Cir. 1999). See also Dada v. Mukasey, 554 U.S. 1, 18–19
(2008) (explaining there is no statutory authority for the automatic tolling of the
voluntary departure period during the pendency of a motion to reopen).

1. Exception for In Absentia Removal or Deportation

The filing of a motion to reopen an in absentia order of deportation or
removal stays deportation. See 8 C.F.R. § 1003.23(b)(4)(ii); 8 C.F.R. § 1003.2(f).

E. Consolidation

Judicial review of a motion to reopen or reconsider must be consolidated

with the review of the final order of removal. See 8 U.S.C. § 1252(b)(6) (“When a
petitioner seeks review of an order under this section, any review sought of a
motion to reopen or reconsider the order shall be consolidated with the review of
the order.”).

F. Departure from the United States

“[T]he text of IIRIRA makes clear that the statutory right to file a motion to
reopen and a motion to reconsider is not limited by whether the individual has

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departed the United States.” Toor v. Lynch, 789 F.3d 1055, 1060 (9th Cir. 2015).
In Toor, the court held that IIRIRA invalidated the regulatory departure bar set
forth in 8 C.F.R. §§ 1003.2(d) and 1003.23(b)(1). Furthermore, the regulatory
departure bar is invalid, irrespective of the manner in which the movant departed
the United States (voluntarily or involuntarily). Toor, 789 F.3d at 1064.

Where a petitioner has filed a motion to reopen, and then is involuntarily

removed before the BIA has ruled on the motion, the BIA cannot deem the motion
to reopen withdrawn. See Coyt v. Holder, 593 F.3d 902, 906–07 (9th Cir. 2010)
(holding that 8 C.F.R. § 1003.2 was invalid as applied to a forcibly removed
petitioner). Likewise, in addressing the withdrawal sanction in 8 C.F.R. § 1003.4,
the court has held that “an alien does not withdraw his appeal of a final removal
order, including the appeal of the denial of a motion to reopen or reconsider,
simply because he was involuntarily removed before the appeal was decided.
Rather, … § 1003.4 provides for withdrawal only when the petitioner engaged in
conduct that establishes a waiver of the right to appeal.” Lopez-Angel v. Barr, 952
F.3d 1045, 1049 (9th Cir. 2020) (as amended) (addressing the withdrawal sanction
in 8 C.F.R. § 1003.4).

Additionally, physical removal of a petitioner by the United States does not

preclude the petitioner from pursuing a motion to reopen. See Reyes-Torres v.
Holder, 645 F.3d 1073, 1076–77 (9th Cir. 2011). See also Toor, 789 F.3d at 1063
(explaining that in both Coyt and Reyes-Torres, the court held that IIRIRA
invalidated the regulatory departure bar as applied to involuntary departures).

A motion to reopen may be made on the basis that the departure was not
legally executed. See Wiedersperg v. INS, 896 F.2d 1179, 1181–82 (9th Cir. 1990)
(holding that petitioner was entitled to reopen his deportation proceedings where
his state conviction, which was the sole ground of deportation, was vacated);
Estrada-Rosales v. INS, 645 F.2d 819, 820–21 (9th Cir. 1981); Mendez v. INS, 563
F.2d 956, 958 (9th Cir. 1977). The court’s holdings in Wiedersperg and Estrada-
Rosales are not limited to cases in which a vacated state court conviction was the
sole ground of deportability; rather, reopening is permitted where the conviction
was a “key part” of the deportation or removal proceeding. Cardoso-Tlaseca v.
Gonzales, 460 F.3d 1102, 1107 (9th Cir. 2006) (holding that BIA was not
precluded from ruling on motion to reopen).

Additionally, a noncitizen who departs the United States after the

completion of immigration proceedings and then re-enters the United States may
file a motion to reopen with an immigration judge, Lin v. Gonzales, 473 F.3d 979,

February 2021 C-12

982 (9th Cir. 2007) (concluding that 8 C.F.R. § 1003.23(b)(1) did not preclude
jurisdiction in such circumstances), or with the BIA, Reynoso-Cisneros v.
Gonzales, 491 F.3d 1001, 1002 (9th Cir. 2007) (per curiam) (concluding that 8
C.F.R. § 1003.2(d) did not preclude jurisdiction in such circumstances).

Removal of a noncitizen from the United States does not divest the court of
jurisdiction over his petition for review. See Saavedra-Figueroa v. Holder, 625
F.3d 621, 623 n.1 (9th Cir. 2010).

If a noncitizen who is removed pursuant to a removal order unlawfully

reenters the United States, and the removal order is reinstated pursuant to 8 U.S.C.
§ 1231(a)(5), the noncitizen is barred from reopening the prior removal
proceedings under § 1229a(c)(7). See Cuenca v. Barr, 956 F.3d 1079, 1082 (9th
Cir. 2020) (as amended). Although, “an individual placed in reinstatement
proceedings under § 1231(a)(5) cannot as a general rule challenge the validity of
the prior removal order in the reinstatement proceeding itself[,]” the noncitizen
retains “the right, conferred by § 1229a(b)(5)(C)(ii), to seek rescission of a
removal order entered in absentia, based on lack of notice, by filing a motion to
reopen ‘at any time.’” Miller v. Sessions, 889 F.3d 998, 1002–03 (9th Cir. 2018).

Cross-reference: Jurisdiction over Immigration Petitions in the Ninth

Circuit, Departure from the United States, Review of Motions to Reopen.

III. STANDARD OF REVIEW

A. Generally

The court reviews denials of motions to reopen, remand or reconsider for

abuse of discretion. See Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002);
see also Aliyev v. Barr, 971 F.3d 1085, 1085–86, 1087 (9th Cir. 2020) (holding the
BIA abused its discretion by denying petitioner’s motion to reopen); Lona v. Barr,
958 F.3d 1225, 1229 (9th Cir. 2020) (the denial of a motion to reconsider a final
order of removal is generally reviewed for an abuse of discretion, and reversed
when the denial is “arbitrary, irrational, or contrary to law”); Aguilar Fermin v.
Barr, 958 F.3d 887, 892 (9th Cir. 2020) (“A denial of a motion to reopen is
reviewed for abuse of discretion.”), cert. denied sub nom. Fermin v. Barr, 141
S. Ct. 664 (2020); Martinez v. Barr, 941 F.3d 907, 921–22 (9th Cir. 2019) (holding
the BIA “abused its discretion in failing to reopen proceedings that had a facially
apparent due process violation and vacate the removal order that was unsupported
by substantial evidence”); Bartolome v. Sessions, 904 F.3d 803, 815 (9th Cir.

February 2021 C-13

2018) (“The IJ’s failure to recognize that he had at least sua sponte jurisdiction to
reopen proceedings was an abuse of discretion.”); Agonafer v. Sessions, 859 F.3d
1198, 1203 (9th Cir. 2017) (motion to reopen); Ayala v. Sessions, 855 F.3d 1012,
1020 (9th Cir. 2017) (motion to reopen and reconsider); Salim v. Lynch, 831 F.3d
1133, 1137 (9th Cir. 2016) (agency abused its discretion denying motion to reopen;
petition for review granted); Yang v. Lynch, 822 F.3d 504, 509 (9th Cir. 2016)
(“Because the BIA may not make credibility determinations on a motion to reopen,
the BIA’s decision to discredit Yang’s affidavit based on application of the falsus
maxim was contrary to law, and therefore an abuse of discretion.”); Garcia v.
Lynch, 786 F.3d 789, 792 (9th Cir. 2015) (motion to reconsider); Velasquez-
Escovar v. Holder, 768 F.3d 1000 (9th Cir. 2014) (agency abused its discretion in
denying motion to reopen); Go v. Holder, 744 F.3d 604, 609 (9th Cir. 2014)
(reviewing denial of motion to reopen for abuse of discretion, explaining that the
BIA’s decision may only be reversed if “arbitrary, irrational, or contrary to law”);
Tadevosyan v. Holder, 743 F.3d 1250, 1252–53 (9th Cir. 2014) (explaining BIA
abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law and
when it fails to provide a reasoned explanation for its actions, and granting the
petition for review); Taggar v. Holder, 736 F.3d 886, 889–90 (9th Cir. 2013)
(reviewing denial of motion to remand for abuse of discretion); Zhao v. Holder,
728 F.3d 1144, 1147 (9th Cir. 2013) (motion to reopen); Hernandez-Velasquez v.
Holder, 611 F.3d 1073, 1077 (9th Cir. 2010) (motion to reopen/reissue); Morales
Apolinar v. Mukasey, 514 F.3d 893, 895 (9th Cir. 2008) (motion to reconsider); de
Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir. 2007) (motion to
remand); see also Kucana v. Holder, 558 U.S. 233, 242 (2010) (“Mindful of the
Board’s ‘broad discretion’ in such matters, however, courts have employed a
deferential, abuse-of-discretion standard of review.”).

The abuse of discretion standard applies regardless of the underlying relief

requested. See INS v. Doherty, 502 U.S. 314, 323 (1992). “[M]otions to reopen
are disfavored in deportation proceedings.” INS v. Abudu, 485 U.S. 94, 107, 110
(1988) (noting, among other things, “the tenor of the Attorney General’s
regulations, which plainly disfavor motions to reopen”); see also Chandra v.
Holder, 751 F.3d 1034 (9th Cir. 2014) (“Motions to reopen, however, are generally
disfavored because every delay works to the advantage of the deportable alien who
wishes merely to remain in the United States.” (internal quotation marks and
citation omitted)); Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (same);
Lin v. Holder, 588 F.3d 981, 984 (9th Cir. 2009) (motions to reopen are
discretionary and disfavored).

February 2021 C-14

 This court will reverse the denial of a motion to reopen if it is “arbitrary,
irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002)
(internal quotation marks omitted); see also Sanchez Rosales v. Barr, 980 F.3d
716, 719 (9th Cir. 2020) (“The BIA abuses its discretion when it makes an error of
law or fails to provide a reasoned explanation for its actions.”); Lona, 958 F.3d at
1229; Aguilar Fermin, 958 F.3d at 892; Agonafer, 859 F.3d at 1203; Perez v.
Mukasey, 516 F.3d 770, 773 (9th Cir. 2008).

The BIA can deny a motion to reopen on any one of at least three
independent grounds, for example, “failure to establish a prima facie case for the
relief sought, failure to introduce previously unavailable, material evidence, and a
determination that even if these requirements were satisfied, the movant would not
be entitled to the discretionary grant of relief which he sought.” Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010) (internal quotation marks and citation
omitted).

The BIA’s determination of purely legal questions is reviewed de novo. See

Martinez v. Barr, 941 F.3d 907, 921 (9th Cir. 2019) (reviewing de novo legal
questions, including claims of due process violations, as well as the sufficiency of
a notice to appear); Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir. 2018)
(reviewing de novo whether BIA’s denial of motion to reopen sua sponte was
based on legal error); Ayala v. Sessions, 855 F.3d 1012, 1020 (9th Cir. 2017) (de
novo review applies to the BIA’s determination of purely legal questions); Alali-
Amin v. Mukasey, 523 F.3d 1039, 1041 (9th Cir. 2008) (“A denial of a motion to
reopen immigration proceedings is generally reviewed for abuse of discretion;
however, where … the issue presented is a ‘purely legal question,’ a de novo
standard applies.”); Morales Apolinar, 514 F.3d at 895; Singh v. INS, 213 F.3d
1050, 1052 (9th Cir. 2000); see also Minasyan v. Mukasey, 553 F.3d 1224, 1227
(9th Cir. 2009) (BIA’s interpretation of the one-year period for filing an asylum
application); Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005). Factual
findings are reviewed for substantial evidence. See Sharma v. INS, 89 F.3d 545,
547 (9th Cir. 1996).

Cross-reference: Jurisdiction over Immigration Petitions, Standards of

Review; Ninth Circuit Standards of Review Outline.

B. Full Consideration of All Factors

The BIA must show proper consideration of all factors, both favorable and
unfavorable. See Chandra v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014); Zhao v.

February 2021 C-15

Holder, 728 F.3d 1144, 1149 (9th Cir. 2013); Ali v. Holder, 637 F.3d 1025, 1031–
32 (9th Cir. 2011) (remanding where BIA failed to consider all factors); Garcia v.
Holder, 621 F.3d 906, 913 (9th Cir. 2010) (remanding to BIA where the BIA failed
entirely to address petitioner’s supplemental brief and the evidence attached to it;
although BIA had discretion whether to consider the evidence, it was legal error
for the BIA to fail entirely to exercise its discretion); Franco-Rosendo v. Gonzales,
454 F.3d 965, 967–68 (9th Cir. 2006) (holding that the BIA abused its discretion in
denying motion to reopen based solely on failure to post voluntary departure bond
without consideration of favorable factors); Bhasin v. Gonzales, 423 F.3d 977,
986–87 (9th Cir. 2005) (holding that the BIA abused its discretion by improperly
discrediting petitioner’s affidavit as “self-serving” and failing to properly consider
the factors relevant to eligibility for relief); Mohammed v. Gonzales, 400 F.3d 785,
792 (9th Cir. 2005) (holding that BIA abused its discretion by denying motion to
reopen in an incomplete and nonsensical opinion, and in failing to consider all
attached evidence); Singh v. Gonzales, 416 F.3d 1006, 1015 (9th Cir. 2005)
(remanding in light of BIA’s unexplained failure to address petitioner’s ineffective
assistance of counsel claim); Movsisian v. Ashcroft, 395 F.3d 1095, 1097–99 (9th
Cir. 2005) (remanding where BIA failed to articulate its reasons for denying
motion to reopen).

The BIA has a duty to weigh all relevant evidence when there is a factual
dispute about whether a document has been mailed by the BIA to a petitioner and,
whether a document has been mailed by petitioner to the BIA. See Hernandez-
Velasquez v. Holder, 611 F.3d 1073, 1078–79 (9th Cir. 2010) (granting petition
because BIA failed to weigh the evidence petitioner submitted in support of her
claim that she mailed a Change of Address form to the BIA and evidence that
petitioner did not receive notice of BIA’s decision).

“The BIA abuses its discretion when it denies petitioner’s claim with no
indication that it considered all of the evidence and claims presented by the
petition.” Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011) (remanding where
it was unclear whether BIA considered specific claim raised by petitioner).

Although the BIA must consider all evidence, it need not expressly refute on
the record every single piece of evidence presented. Lin v. Holder, 588 F.3d 981,
987–88 (9th Cir. 2009) (where BIA did not specifically address some of the
evidence submitted, it did not abuse its discretion in denying the motion to
reopen); see also Agonafer v. Sessions, 859 F.3d 1198, 1206 (9th Cir. 2017)
(recognizing that the BIA does not have to write an exegesis on every contention).

February 2021 C-16

 In Agonafer, the court held that “[b]ecause the BIA failed to consider the
issues raised by the new reports in a manner showing that it ‘heard and thought and
not merely reacted’ to Agonafer’s motion to reopen, … , it ‘abused its discretion in
dismissing the new evidence as demonstrating a mere continuance of the previous
circumstances.’ … Accordingly, the BIA’s denial of Agonafer’s motion to reopen
was arbitrary, irrational, or contrary to law.” Id. at 1207 (citations omitted).

1. Later-Acquired Equities

It is unclear whether equities acquired after a final order of deportation or

removal must be given less weight than those acquired before the applicant was
found to be deportable. Compare Caruncho v. INS, 68 F.3d 356, 362 (9th Cir.
1995) (“The government rightly points out that equities flowing from [petitioner’s]
marriage should be given little weight because it took place … three months after
the BIA’s summary dismissal/final deportation order.”), with Vasquez v. INS, 767
F.2d 598, 602 (9th Cir. 1985) (affirming denial of motion to reopen because
petitioner’s intra-proceedings marriage did not outweigh his violations of
immigration law), with Israel v. INS, 785 F.2d 738, 741 (9th Cir. 1986)
(concluding that the BIA’s denial of a motion to reopen to adjust status based on a
“last-minute marriage” was arbitrary). See also Malhi v. INS, 336 F.3d 989, 994
(9th Cir. 2003) (discussing regulatory presumption of fraud for intra-proceedings
marriages and requirements of bona fide marriage exemption).

In Chandra v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014), the court held
that the “BIA committed legal error insofar as it determined that [petitioner’s]
post-removal conversion to Christianity rendered him ineligible to file an untimely
motion under the changed conditions exception.” The court explained that 8
C.F.R. § 1003.2(c)(3)(ii) does not prohibit “a motion to reopen based on evidence
of changed country conditions that are relevant in light of the petitioner’s changed
circumstances.” Id. at 1037.

C. Explanation of Reasons

“We have long held that the BIA abuses its discretion when it fails to
provide a reasoned explanation for its actions.” Movsisian v. Ashcroft, 395 F.3d
1095, 1098 (9th Cir. 2005) (granting petition where BIA summarily denied motion
to reopen and remand without explanation). “[W]here the BIA entertains a motion
to reopen in the first instance, and then fails to provide specific and cogent reasons
for its decision, we are left without a reasoned decision to review.” Id. (rejecting
government’s contention that BIA’s summary denial of a motion to reopen and

February 2021 C-17

remand was consistent with its streamlining procedures). “While the BIA ‘does
not have to write an exegesis on every contention,’ it is required to ‘consider the
issues raised, and announce its decision in terms sufficient to enable a reviewing
court to perceive that it has heard and thought and not merely reacted.’” Agonafer
v. Sessions, 859 F.3d 1198, 1206 (9th Cir. 2017) (citation omitted).

See also Avagyan v. Holder, 646 F.3d 672, 681–82 (9th Cir. 2011)
(remanding were it was unclear whether BIA considered specific claim raised by
petitioner); Franco-Rosendo v. Gonzales, 454 F.3d 965, 967–68 (9th Cir. 2006);
Mohammed v. Gonzales, 400 F.3d 785, 792 (9th Cir. 2005) (“[T]he BIA must issue
a decision that fully explains the reasons for denying a motion to reopen.”);
Narayan v. Ashcroft, 384 F.3d 1065, 1068 (9th Cir. 2004) (holding that “the BIA
must address and rule upon remand motions, giving specific, cogent reasons for a
grant or denial”); Arrozal v. INS, 159 F.3d 429, 433 (9th Cir. 1998) (“[T]he BIA
must indicate how it weighed [the favorable and unfavorable] factors and indicate
with specificity that it heard and considered petitioner’s claims.”).

D. Irrelevant Factors

The BIA may not rely on irrelevant factors. See, e.g., Virk v. INS, 295 F.3d
1055, 1060–61 (9th Cir. 2002) (holding that BIA improperly considered the impact
of an unrelated section of the INA and petitioner’s wife’s pre-naturalization
misconduct); Ng v. INS, 804 F.2d 534, 539 (9th Cir. 1986) (holding that BIA
improperly relied on misconduct of petitioner’s father).

E. Credibility Determinations

The BIA should not make credibility determinations on motions to reopen.

See Silva v. Barr, 965 F.3d 724, 736 (9th Cir. 2020) (“The BIA may not make
credibility determinations on motions to reopen … and must accept as true the
facts asserted by the [movant], unless they are ‘inherently unbelievable[.]”
(citations omitted)); Yang v. Lynch, 822 F.3d 504, 509 (9th Cir. 2016) (“[T]he BIA
may not make adverse credibility determinations (including adverse credibility
determinations based on the falsus maxim) in denying a motion to reopen.”);
Ghadessi v. INS, 797 F.2d 804, 806 (9th Cir. 1986) (“As motions to reopen are
decided without a factual hearing, the Board is unable to make credibility
determinations at this stage of the proceedings.”). Facts presented in supporting
affidavits must be accepted as true unless inherently unbelievable. See Bhasin v.
Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (stating that the “self-serving nature
of a declaration in support of a motion to reopen is not an appropriate basis for

February 2021 C-18

discrediting its content”); Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir.
2002); Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991); see also Ordonez v. INS,
345 F.3d 777, 786 (9th Cir. 2003) (“The BIA violates an alien’s due process rights
when it makes a sua sponte adverse credibility determination without giving the
alien an opportunity to explain alleged inconsistencies.”); Monjaraz-Munoz v. INS,
327 F.3d 892, 897 (9th Cir. 2003) (holding that where BIA cites no evidence to
support a finding that petitioner’s version of the facts is incredible, and none is
apparent from the court’s review of the record, petitioner’s allegations will be
credited), amended by 339 F.3d 1012 (9th Cir. 2003) (order). “[T]he BIA may not
apply the falsus maxim to deny a motion to reopen.” Yang, 822 F.3d at 509
(explaining that the maxim is discretionary rather than mandatory, and that it is in
tension with the BIA’s limited and deferential role in reviewing an IJ’s credibility
determination).

IV. REQUIREMENTS FOR A MOTION TO REOPEN

The BIA can deny a motion to reopen on any one of at least three
independent grounds, such as “failure to establish a prima facie case for the relief
sought, failure to introduce previously unavailable, material evidence, and a
determination that even if these requirements were satisfied, the movant would not
be entitled to the discretionary grant of relief which he sought.” Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010) (internal quotation marks and citation
omitted).

A. Supporting Documentation

A motion to reopen must be supported by affidavits, the new evidentiary

material sought to be introduced, and, if necessary, a completed application for
relief. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1); see also INS v.
Wang, 450 U.S. 139, 143 (1981) (per curiam) (upholding BIA’s denial of motion
to reopen to apply for suspension of deportation because “the allegations of
hardship were in the main conclusory and unsupported by affidavit”); Agonafer v.
Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017) (“A motion to reopen ‘shall be
supported by affidavits or other evidentiary material.’ 8 C.F.R. § 1003.2(c)(1).”);
Patel v. INS, 741 F.2d 1134, 1137 (9th Cir. 1984) (“[I]n the context of a motion to
reopen, the BIA is not required to consider allegations unsupported by affidavits or
other evidentiary material.”). “Although the statute and regulation refer to
‘affidavits,’ [the court has] treated affidavits and declarations interchangeably for
purposes of motions to reopen.” Malty v. Ashcroft, 381 F.3d 942, 947 n.2 (9th Cir.
2004).

February 2021 C-19

 1. Exception
The petitioner’s failure to submit supporting documentation does not bar
reopening where the government either joins in the motion to reopen, or does not
affirmatively oppose it. See Konstantinova v. INS, 195 F.3d 528, 530–31 (9th Cir.
1999) (where government did not oppose petitioner’s motion to remand, BIA
abused its discretion by denying the motion on basis that petitioner failed to
include completed application for relief); see also Guzman v. INS, 318 F.3d 911,
914 n.3 (9th Cir. 2003) (per curiam).

The supporting documentation need not be submitted concurrently with the

motion so long as it is submitted within the 90-day time limitation on motions to
reopen. Yeghiazaryan v. Gonzales, 439 F.3d 994, 998–99 (9th Cir. 2006) (holding
that BIA abused its discretion and violated due process in dismissing motion
before expiration of the limitation period based on petitioner’s failure to file
supporting brief).

B. Previously Unavailable Evidence

The moving party must show that the previously unavailable material
evidence could not have been discovered or presented at the former hearing. See
INS v. Doherty, 502 U.S. 314, 324 (1992) (holding that the Attorney General did
not abuse his discretion by denying motion to reopen to apply for asylum and
withholding based on lack of new material evidence); Oyeniran v. Holder, 672
F.3d 800, 808–09 (9th Cir. 2012) (granting petition for review where petitioner
offered a legitimate and plausible explanation as to why evidence was new); Goel
v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (holding that results of a polygraph
examination administered after the former hearing before the IJ concerning events
that took place prior to the hearing cannot serve as a basis for reopening); Bhasin v.
Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (explaining that the statute and 8
C.F.R. § 1003.2(c)(1) require that the evidence must not have been available to be
presented at the former hearing before the IJ); Guzman v. INS, 318 F.3d 911, 913
(9th Cir. 2003) (per curiam) (affirming denial of motion to reopen because “new”
information was available and capable of discovery prior to deportation hearing);
Bolshakov v. INS, 133 F.3d 1279, 1282 (9th Cir. 1998) (finding no evidence of new
circumstances to support asylum application); Ramon-Sepulveda v. INS, 743 F.2d
1307, 1310 (9th Cir. 1984) (holding that BIA erred in affirming the IJ’s decision
granting the government’s motion to reopen based on a foreign birth certificate that
could have been discovered and presented at prior hearing).

February 2021 C-20

 “It is not sufficient that the evidence physically existed in the world at large;
rather, the evidence must have been reasonably available to the petitioner.”
Oyeniran, 672 F.3d at 808 (granting petition for review where new evidence was
“significant, dramatic, and compelling”).

C. Explanation for Failure to Apply for Discretionary Relief

If the motion to reopen is made for the purpose of obtaining discretionary

relief, the moving party must establish that he or she was denied the opportunity to
apply for such relief, or that such relief was not available at the time of the original
hearing. See INS v. Doherty, 502 U.S. 314, 324, 327 (1992) (holding that the
Attorney General did not abuse his discretion by denying motion to reopen because
the applicant failed to satisfactorily explain his previous withdrawal of his asylum
and withholding application); INS v. Abudu, 485 U.S. 94, 111 (1988) (affirming
BIA’s denial of motion to reopen to apply for asylum where applicant failed to
explain why the asylum application was not submitted earlier); Lainez-Ortiz v. INS,
96 F.3d 393, 396 (9th Cir. 1996).

D. Prima Facie Eligibility for Relief

The applicant must also show prima facie eligibility for the underlying
substantive relief requested. See INS v. Wang, 450 U.S. 139, 145 (1981) (per
curiam); see also Silva v. Barr, 965 F.3d 724, 736 (9th Cir. 2020); Ramirez-Munoz
v. Lynch, 816 F.3d 1226, 1228 (9th Cir. 2016) (“A motion to reopen will not be
granted unless the respondent establishes a prima facie case of eligibility for the
underlying relief sought.”); Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th
Cir. 2013) (“BIA entitled to deny a motion to reopen where applicant fails to
demonstrate prima facie eligibility for the underlying relief.”); Mendez-Gutierrez v.
Ashcroft, 340 F.3d 865, 868–69 (9th Cir. 2003) (concluding that request to
reinstate asylum application is analogous to motion to reopen); Dielmann v. INS,
34 F.3d 851, 853 (9th Cir. 1994); Limsico v. INS, 951 F.2d 210, 213 (9th Cir.
1991); Aviles-Torres v. INS, 790 F.2d 1433, 1435–36 (9th Cir. 1986).

A prima facie case is established “‘where the evidence reveals a reasonable

likelihood the statutory requirements for relief have been satisfied.’” Mendez-
Gutierrez v. Gonzales, 444 F.3d 1168, 1171 (9th Cir. 2006) (quoting Ordonez v.
INS, 345 F.3d 777, 785 (9th Cir. 2003)); see also Silva, 965 F.3d at 736 (“To
establish a prima facie case, the movant must adduce evidence that, along with the
facts already in the record, ‘will support the desired finding if evidence to the
contrary is disregarded.’”); Ramirez-Munoz, 816 F.3d at 1228 (“Prima facie

February 2021 C-21

eligibility for asylum relief is met when an alien demonstrates he is unwilling or
unable to return to his country of origin ‘because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.’”); Tadevosyan v. Holder, 743 F.3d
1250, 1255 (9th Cir. 2014) (concluding the BIA abused its discretion in denying
the motion to reopen and explaining that the BIA does not require a conclusive
showing that relief has been established, but rather that the BIA is willing to
reopen where the new facts alleged, when coupled with the facts already of record
show that it would be worthwhile to develop issues further at a plenary injunction
hearing on reopening); Lopez-Vasquez, 706 F.3d at 1080 (petitioner failed to
establish reasonable likelihood that he was eligible for adjustment of status). Cf.
Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (“Aliens who seek to
remand or reopen proceedings to pursue relief bear a ‘heavy burden’ of proving
that, if proceedings were reopened, the new evidence would likely change the
result in the case.”).

E. Discretionary Denial

Where ultimate relief is discretionary, such as asylum, the BIA may leap
over the threshold concerns, and determine that the moving party would not be
entitled to the discretionary grant of relief. See, e.g., INS v. Abudu, 485 U.S. 94,
105–06 (1988); INS v. Rios-Pineda, 471 U.S. 444, 449 (1985); Sequeira-Solano v.
INS, 104 F.3d 278, 279 (9th Cir. 1997); Vasquez v. INS, 767 F.2d 598, 600 (9th
Cir. 1985); see also 8 C.F.R. § 1003.2(a) (“The Board has discretion to deny a
motion to reopen even if the party moving has made out a prima facie case for
relief.”).

However, “the BIA must consider and weigh the favorable and unfavorable
factors in determining whether to deny a motion to reopen proceedings on
discretionary grounds.” Virk v. INS, 295 F.3d 1055, 1060 (9th Cir. 2002)
(remanding where BIA did not consider any of the factors weighing in petitioner’s
favor); see also Franco-Rosendo v. Gonzales, 454 F.3d 965, 968 (9th Cir. 2006);
Arrozal v. INS, 159 F.3d 429, 433–34 (9th Cir. 1998).

F. Failure to Depart Voluntarily

There is no statutory authority to automatically toll the voluntary departure

period while a petitioner’s motion to reopen is pending. See Dada v. Mukasey, 554
U.S. 1 (2008) (holding that to safeguard the right to pursue a motion to reopen,
voluntary departure recipients should be permitted an opportunity to withdraw a

February 2021 C-22

motion for voluntary departure, provided the request is made prior to the departure
period expiring). “Following Dada, the Executive Office of Immigration Review
… issued a rule … provid[ing] that ‘[t]he filing of a motion to reopen or reconsider
prior to the expiration of the period allowed for voluntary departure has the effect
of automatically terminating the grant of voluntary departure, and accordingly does
not toll, stay, or extend the period allowed for voluntary departure.’” Meza-
Vallejos v. Holder, 669 F.3d 920 (9th Cir. 2012) (quoting 8 C.F.R.
§ 1240.26(e)(1)). The regulation only applies prospectively. Meza-Vallejos, 669
F.3d at 924 n.4. “Whether, and how, Dada applies retroactively remains an open
question” Id.

In Nevarez Nevarez v. Holder, 572 F.3d 605, 609–10 (9th Cir. 2009), the
court granted the petition for review and remanded to the BIA so that it could
decide in the first instance whether Dada applied retroactively. On remand, the
BIA concluded that, since the petitioners “were unaware that they had a unilateral
right to withdraw their request for voluntary departure,” the BIA would “deem the
filing of their motion to reopen, followed by their election to remain to pursue that
motion, as an expression of their desire to exercise their unilateral right to
withdraw their request for voluntary departure.” Meza-Vallejos, 669 F.3d at 924
n.4.

Prior to Dada, this court had held that for permanent rules cases, the filing of
a timely motion to reopen or reconsider automatically tolled the voluntary
departure period, regardless of whether the motion was accompanied by a motion
to stay the voluntary departure period. Barroso v. Gonzales, 429 F.3d 1195, 1204–
05, 1207 (9th Cir. 2005); see also Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir.
2005) (rejecting the court’s prior analysis in Shaar v. INS, 141 F.3d 953 (9th Cir.
1998), and holding that petitioner’s voluntary departure period is tolled while the
BIA considers a timely-filed motion to reopen accompanied by a motion to stay
removal), abrogated by Dada v. Mukasey, 554 U.S. 1, 19–21 (2008); cf. Medina-
Morales v. Ashcroft, 371 F.3d 520, 529–31 & n.9 (9th Cir. 2004) (holding, in
permanent rules case, that where a petitioner bargains for voluntary departure in
lieu of full adjudication under 8 U.S.C. § 1229c(a)(1), the BIA may weigh
petitioner’s voluntary departure agreement against the grant of a motion to reopen).

If the petitioner files a motion to reopen after the expiration of the voluntary
departure period, the BIA must deny the motion to reopen based on petitioner’s
failure to depart. See Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1015 (9th
Cir. 2008) (per curiam) (holding that because motion to reopen was filed after
expiration of voluntary departure period, BIA was compelled to deny the motion);

February 2021 C-23

de Martinez v. Ashcroft, 374 F.3d 759, 763–64 (9th Cir. 2004) (denying petition
for review in permanent rules case where petitioner moved to reopen to apply for
adjustment of status 30 days after the expiration of her voluntary departure period);
Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1174 (9th Cir. 2003). Note that
where the voluntary departure period expires on a weekend, and a motion to
reopen is filed on the following Monday, the motion may be timely. See Meza-
Vallejos, 669 F.3d at 927 (where voluntary departure period expired on weekend,
and motion to reopen was filed on following Monday, court determined that
motion was timely filed).

Under the transitional rules, the BIA may deny a motion to reopen to apply
for relief where the petitioners failed to depart during the voluntary departure
period. See Shaar v. INS, 141 F.3d 953, 959 (9th Cir. 1998) (pre-IIRIRA); cf.
Ordonez v. INS, 345 F.3d 777, 783–84 (9th Cir. 2003) (holding in transitional rules
case that BIA erred in denying motion to reopen to apply for suspension of
deportation where IJ failed to give adequate oral warning under the former statute
of the consequences of failing to depart voluntarily).

The BIA may not deny reopening as a matter of discretion based solely on
the failure to post a voluntary departure bond or to depart voluntarily without also
considering the favorable factors in support of reopening. See Franco-Rosendo v.
Gonzales, 454 F.3d 965, 968 (9th Cir. 2006) (remanding for consideration of
positive factors in favor of reopening where BIA denied reopening based solely on
petitioner’s failure to post a voluntary departure bond and/or depart voluntarily).

Note that where voluntary departure was granted on or after January 20,
2009, the filing of a motion to reopen or reconsider, or the filing of a petition for
review before the court of appeals will terminate voluntary departure. See 8 C.F.R.
§ 1240.26(e)(1); Matter of Velasco, 25 I. & N. Dec. 143 (BIA 2009); see also
Garfias-Rodriguez v. Holder, 702 F.3d 504, 524–25 (9th Cir. 2012) (en banc)
(“[B]ecause the filing of a petition now automatically terminates a petitioner’s
grant of voluntary departure, we conclude that, assuming that 8 C.F.R. § 1240.26(i)
is valid, we have no authority to issue an equitable stay of Garfias’s voluntary
departure period.”); Meza-Vallejos, 669 F.3d at 924 n.4.

Cross-reference: Cancellation of Removal, Ten-Year Bars to Cancellation,

Failure to Depart.

February 2021 C-24

 G. Appeal of Deportation Order

“The BIA cannot deny a motion to reopen merely because an alien appeals a
deportation order.” Medina-Morales v. Ashcroft, 371 F.3d 520, 531 n.10 (9th Cir.
2004) (citing Watkins v. INS, 63 F.3d 844, 851 (9th Cir. 1995)).

H. Fugitive Disentitlement Doctrine

Individuals who disregard the order of deportation against them by refusing

to report on their appointed date of departure may have their motion to reopen
denied as a matter of discretion. See Antonio-Martinez v. INS, 317 F.3d 1089,
1091 (9th Cir. 2003) (applying the fugitive disentitlement doctrine where petitioner
had lost contact with his attorney and the agency and all efforts to contact him
failed for over two years); cf. Bhasin v. Gonzales, 423 F.3d 977, 988–89 (9th Cir.
2005) (declining to uphold BIA’s reliance on fugitive disentitlement doctrine in
denying petitioner’s motion to reopen because petitioner failed to receive critical
agency documents).

“[T]he critical question the court must ask when deciding whether to apply
the fugitive disentitlement doctrine is whether the appellant is a fugitive at the time
the appeal is pending.” Sun v. Mukasey, 555 F.3d 802, 805 (9th Cir. 2009). “[F]or
disentitlement to be appropriate, there must be some connection between a
defendant’s fugitive status and the appellate process.” Id. (internal quotation
marks omitted).

“Two justifications frequently advanced in support of dismissal on a fugitive

disentitlement theory are: (1) the pragmatic concern with ensuring that the court’s
judgment will be enforceable against the appellant; and (2) the equitable notion
that a person who flouts the authority of the court waives his entitlement to have
his appeal considered.” Id. at 804.

V. TIME AND NUMERICAL LIMITATIONS

A. Generally

1. Time Limitations
“8 U.S.C. § 1229a(c)(7)(C)(i) requires that a motion to reopen be filed
within 90 days of a final order of removal. 8 U.S.C. § 1101(a)(47)(B) mandates
that an order of removal becomes final upon the earlier of: (i) a BIA determination
affirming the order; or (ii) the expiration of the deadline to seek the BIA’s review

February 2021 C-25

of the order.” Ocampo v. Holder, 629 F.3d 923, 927–28 (9th Cir. 2010); see also
Mata v. Lynch, 576 U.S. 143, 145 (2015) (“Subject to exceptions …, [a] motion to
reopen ‘shall be filed within 90 days’ of the final removal order.”); Go v. Holder,
744 F.3d 604, 607 (9th Cir. 2014) (motion to reopen must be filed no later than 90
days after the final decision in the proceeding sought to be reopened; holding that 8
C.F.R. § 1003.2(c) applies to CAT claims); Vega v. Holder, 611 F.3d 1168, 1170–
71 (9th Cir. 2010) (BIA reasonably interpreted 8 U.S.C. § 1229a(c)(7)(C)(i) as
requiring the motion to reopen to have been filed within 90 days of the merits
decision, rather than from a denial of the motion to reconsider); Lin v. Holder, 588
F.3d 981, 985 (9th Cir. 2009) (explaining that while a motion to reopen must be
filed within 90 days of the entry of the final order of removal, there is no time limit
for motions to reopen for asylum applications based on changed country
conditions).

A motion to reconsider must be filed within thirty days after the date of
entry of the final administrative decision. See 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R.
§ 1003.2(b)(2). See also Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020) (“A
motion to reconsider a final order of removal generally must be filed within thirty
days of the date of entry of the order.”).

The limitation period begins to run when the agency sends its decision to the
correct address. See Martinez-Serrano v. INS, 94 F.3d 1256, 1258–59 (9th Cir.
1996); see also Hernandez-Velasquez v. Holder, 611 F.3d 1073, 1078–79 (9th Cir.
2010) (granting petition because BIA failed to weigh the evidence petitioner
submitted in support of her claim that she mailed a Change of Address form to the
BIA and evidence that petitioner did not receive notice of BIA’s decision); Singh v.
Gonzales, 494 F.3d 1170, 1172 (9th Cir. 2007) (explaining that although the
limitation period begins to run when the decision is sent to the correct address, the
presumption of mailing may be rebutted by affidavits of nonreceipt, but declining
to decide whether the presumption was rebutted and remanding for the BIA to
consider the issue in the first instance).

A removal order granting voluntary departure becomes final for purposes of

a motion to reopen upon the BIA’s affirmance of the order, not upon the
noncitizen’s overstay of the voluntary departure period. Ocampo, 629 F.3d at 925–
28. If the petitioner files a motion to reopen after the expiration of the voluntary
departure period, the BIA must deny the motion to reopen based on petitioner’s
failure to depart. See Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1015 (9th
Cir. 2008) (per curiam) (holding that because motion to reopen was filed after
expiration of voluntary departure period, BIA was compelled to deny the motion);

February 2021 C-26

de Martinez v. Ashcroft, 374 F.3d 759, 763–64 (9th Cir. 2004) (denying petition
for review in permanent rules case where petitioner moved to reopen to apply for
adjustment of status 30 days after the expiration of her voluntary departure period);
Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1174 (9th Cir. 2003).

Where the voluntary departure period expires on a weekend, and a motion to

reopen is filed on the following Monday, the motion may be timely. See Meza-
Vallejos v. Holder, 669 F.3d 920, 927 (9th Cir. 2012) (where voluntary departure
period expired on weekend, and motion to reopen was filed on following Monday,
court determined that motion was timely filed).

“[T]he pendency of a petition for review of an order of removal does not toll
the statutory time limit for the filing of a motion to reopen with the BIA.” Dela
Cruz v. Mukasey, 532 F.3d 946, 949 (9th Cir. 2008) (per curiam) (relying on Stone
v. INS, 514 U.S. 386, 405–06 (1995) for proposition that “a removal order is final
when issued” regardless of subsequent motion to reconsider) (internal quotation
marks omitted).

Where a noncitizen is ordered deported, but is granted deferral under the

CAT, the order constitutes an order of deportation, and the 90-day time period for
filing a motion to reopen begins to run when the order becomes final. See Alali-
Amin v. Mukasey, 523 F.3d 1039, 1041–42 (9th Cir. 2008).

With respect to deadlines specified in regulations, “the general rules

concerning adequacy of notice through publication in the Federal Register apply in
the immigration context.” Williams v. Mukasey, 531 F.3d 1040, 1042 (9th Cir.
2008) (publication of CAT regulations in Federal Register provided adequate
notice of June 21, 1999 deadline to file motion to reopen based on CAT claim of
applicant subject to pre-March 22, 1999 removal order).

The court can “review the merits of a citizenship claim by way of a petition
for review from the denial of a motion to reopen, even where the motion was
‘untimely’ and denied ‘as procedurally improper.’” Anderson v. Holder, 673 F.3d
1089, 1096 n.6 (9th Cir. 2012).

2. Numerical Limitations

A party may make one motion to reopen and one motion to reconsider. See
8 U.S.C. § 1229a(c)(7)(A) and (c)(6)(A); 8 C.F.R. § 1003.2(c)(2) and (b)(2); see
also Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017) (“An alien may

February 2021 C-27

generally file only one motion to reopen removal proceedings … .”); Shin v.
Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (“[A]liens are entitled to file only
one motion to reopen.”). The single-motion limitation on motions to reopen does
not apply to motions to reopen and rescind in absentia orders of deportation. See
Fajardo v. INS, 300 F.3d 1018, 1020 (9th Cir. 2002) (noting for in absentia cases
that the limitation applies only to removal cases under IIRIRA’s permanent rules).
Where a motion to remand is filed before a final administrative decision, it does
not implicate 8 C.F.R. § 1003.2(c)(2). See Zhao v. Holder, 728 F.3d 1144, 1147
(9th Cir. 2013) (BIA erred in holding motion to reopen numerically barred when
first motion to remand was filed before administrative decision was filed).

Whether “a petition to reopen that is denied for untimeliness and thus is not
considered on the merits by the BIA counts as a first petition for purposes of the
number-bar rule” is an open question. See Nevarez Nevarez v. Holder, 572 F.3d
605, 608 (9th Cir. 2009) (remanding for BIA to consider the question in first
instance).

B. Exceptions to the Ninety-Day/One-Motion Rule

1. In Absentia Orders

a. Exceptional Circumstances
An in absentia removal order may be rescinded “upon a motion to
reopen ... if the alien demonstrates that the failure to appear was
because of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i).
“The term ‘exceptional circumstances’ refers to exceptional
circumstances (such as battery or extreme cruelty to the alien or any
child or parent of the alien, serious illness of the alien, or serious
illness or death of the spouse, child, or parent of the alien, but not
including less compelling circumstances) beyond the control of the
alien.” 8 U.S.C. § 1229a(e)(1). While the enumerated examples are
not exclusive, exceptional circumstances must include a “similarly
severe impediment.” Singh-Bhathal v. INS, 170 F.3d 943, 947 (9th
Cir. 1999). Additionally, “[t]his court must look to the ‘particularized
facts presented in each case’ in determining whether the petitioner has
established exceptional circumstances.” Singh [v. INS, 295 F.3d
1037,] 1040 [(9th Cir. 2002)] (quoting Singh v. INS, 213 F.3d 1050,
1052 (9th Cir. 2000)).

February 2021 C-28

Arredondo v. Lynch, 824 F.3d 801, 805 (9th Cir. 2016); see also Reyes v. Ashcroft,
358 F.3d 592, 596 (9th Cir. 2004); Singh v. INS, 295 F.3d 1037, 1040 (9th Cir.
2002) (“This court must look to the particularized facts presented in each case in
determining whether the petitioner has established exceptional circumstances.”
(internal quotation marks omitted)).

The applicant has 180 days to file a motion to reopen based on exceptional
circumstances to rescind the in absentia order. See 8 U.S.C. § 1229a(b)(5)(C)(i); 8
C.F.R. § 1003.23(b)(4)(ii) and (b)(4)(iii)(A)(1); see also Lo v. Ashcroft, 341 F.3d
934, 936 (9th Cir. 2003).

Note that “a petitioner who arrives late for his immigration hearing, but
while the IJ is still in the courtroom, has not failed to appear for that hearing …
and is not required to demonstrate exceptional circumstances in order to reopen
proceedings.” Perez v. Mukasey, 516 F.3d 770, 774 (9th Cir. 2008).

Cross Reference: Equitable Tolling.

(i) Evidentiary Requirements

The BIA may not impose new proof requirements without notice. See Singh
v. INS, 213 F.3d 1050, 1053–54 (9th Cir. 2000) (holding that BIA violated due
process where it newly required an applicant to produce an affidavit from his
employer or doctor, and to contact the immigration court); cf. Celis-Castellano v.
Ashcroft, 298 F.3d 888, 891 (9th Cir. 2002) (holding that petitioner had notice of
BIA’s evidentiary requirements).

(ii) Cases Finding Exceptional Circumstances

Chete Juarez v. Ashcroft, 376 F.3d 944, 948 (9th Cir. 2004) (holding that
petitioner established exceptional circumstances because she appeared at all
scheduled hearings but the last, of which she had no actual notice; she had
prevailed on appeal before the BIA; and she had no reason to delay or evade the
hearing); Reyes v. Ashcroft, 358 F.3d 592, 596–97 (9th Cir. 2004) (stating that
ineffective assistance of counsel qualifies as an exceptional circumstance, but
denying relief because petitioner failed to comply with the procedural prerequisites
of Matter of Lozada); Lo v. Ashcroft, 341 F.3d 934, 939 (9th Cir. 2003) (holding
that counsel’s secretary’s statement that hearing was on wrong day constituted
ineffective assistance, which was an exceptional circumstance); Monjaraz-Munoz
v. INS, 327 F.3d 892, 894–95, 898 (9th Cir. 2003) (counsel’s wife’s advice to leave
and reenter the United States the day before the hearing, in order to prove that

February 2021 C-29

petitioner’s visa was valid, constituted ineffective assistance of counsel and
exceptional circumstances), amended by 339 F.3d 1012 (9th Cir. 2003) (order);
Fajardo v. INS, 300 F.3d 1018, 1022 n.8 (9th Cir. 2002) (suggesting to BIA on
remand that “it [would be] difficult to imagine” how the paralegal’s failure to
inform the petitioner “of her need to appear at her deportation hearing would not
constitute an exceptional circumstance”); Singh v. INS, 295 F.3d 1037, 1039–40
(9th Cir. 2002) (holding that petitioner established exceptional circumstances
where he arrived late to his hearing based on a misunderstanding, and had “no
possible reason to try to delay the hearing” because he was eligible for adjustment
of status); Romani v. INS, 146 F.3d 737, 739 (9th Cir. 1998) (holding that where
applicants were in the courthouse but did not enter the courtroom due to incorrect
advice by lawyer’s assistant, they did not fail to appear for their hearing, and
reopening was warranted). See also Bassene v. Holder, 737 F.3d 530, 535 (9th
Cir. 2013) (as amended) (IJ agreed with noncitizen that he “was exempted from the
one year filing period under the “extraordinary circumstances” exception because
he filed the N–400 citizenship application less than six months after his J1 visa
expired[;]” the IJ then treated the mistakenly filed N-400 citizenship application as
a quasi-asylum application).

(iii) Cases Finding No Exceptional Circumstances

Arredondo v. Lynch, 824 F.3d 801, 806 (9th Cir. 2016) (“[A] car’s
mechanical failure does not alone compel granting a motion to reopen based on
‘exceptional circumstances.’”); Vukmirovic v. Holder, 640 F.3d 977, 978 (9th Cir.
2011) (noncitizen’s failure to know about post-remand removal hearing because he
had moved from his previous address without advising his new lawyer or
immigration court of his whereabouts did not constitute exceptional
circumstances); Valencia-Fragoso v. INS, 321 F.3d 1204, 1205–06 (9th Cir. 2003)
(per curiam) (holding that applicant who was 4 ½ hours late due to a
misunderstanding of the time of the hearing, and made no showing that she arrived
while the IJ was still hearing cases, did not establish exceptional circumstances,
especially where only possible relief was discretionary grant of voluntary
departure); Celis-Castellano v. Ashcroft, 298 F.3d 888, 891–92 (9th Cir. 2002)
(severe asthma attack not exceptional); Singh-Bhathal v. INS, 170 F.3d 943, 946–
47 (9th Cir. 1999) (holding that erroneous advice of immigration consultant not to
appear at hearing did not constitute exceptional circumstances); Farhoud v. INS,
122 F.3d 794, 796 (9th Cir. 1997) (holding that petitioner’s failure personally to
receive the notice of hearing, which was mailed to his last known address, where
receipt was acknowledged, was not an exceptional circumstance); Sharma v. INS,
89 F.3d 545, 547 (9th Cir. 1996) (traffic congestion and parking difficulties not

February 2021 C-30

exceptional); see also Hernandez-Vivas v. INS, 23 F.3d 1557, 1559–60 (9th Cir.
1994) (holding under the previous standard of reasonable cause that the mere filing
of a motion for a change of venue did not excuse the failure to appear).

(iv) Arriving Late While IJ On Bench

See Perez v. Mukasey, 516 F.3d 770, 774 (9th Cir. 2008) (holding that a
petitioner does not need to demonstrate exceptional circumstances where he arrives
late for his immigration hearing, but while the IJ is still in the courtroom);
Jerezano v. INS, 169 F.3d 613, 615 (9th Cir. 1999) (concluding that applicant did
not fail to appear where he was 20 minutes late and the IJ was still on the bench,
and that an in absentia order was too “harsh and unrealistic”).

b. Improper Notice of Hearing

8 U.S.C. § 1229a(b)(5), authorizes immigration judges to order non-
citizens removed from the country in absentia—that is, in the person’s
absence. Such orders may be entered when a non-citizen is directed
to appear at a removal hearing but fails to show up, provided the
government proves that it gave written notice of the hearing as
required by statute and that the non-citizen is in fact removable.
§ 1229a(b)(5)(A). That rule would lead to obvious unfairness (and
potential due process problems) if it were applied to someone who
never actually received the required notice. So the statute provides a
fail-safe mechanism: If the individual can show that she never
received notice of the hearing, she may seek to rescind a removal
order entered in absentia by filing a motion to reopen “at any time.”
§ 1229a(b)(5)(C)(ii).

Miller v. Sessions, 889 F.3d 998, 999 (9th Cir. 2018). See also 8 U.S.C.
§ 1229a(b)(5)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(ii) and (b)(4)(iii)(A)(2). “Neither
the statute nor the BIA’s interpretation of the statute – or any court of appeals
opinion – limits this ‘any time’ language by prescribing a cut-off period after an
alien learns of the deportation order.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th
Cir. 2004) (per curiam) (interpreting pre-IIRIRA notice provision in 8 U.S.C.
§ 1252b(c)(3)(B) (repealed 1996)). See also Miller, 889 F.3d at 1002–03.

“[A]liens are entitled to notice unless they fail to give a current address to
the government or fail to let the government know when they move.” Velasquez-
Escovar v. Holder, 768 F.3d 1000, 1004 (9th Cir. 2014) (petition for review

February 2021 C-31

granted where agency denied motion to reopen removal proceeding in which
petitioner was ordered removed in absentia, and petitioner was entitled to notice of
her deportation hearing).

Due process requires notice of an immigration hearing that is reasonably

calculated to reach the interested parties. See Khan v. Ashcroft, 374 F.3d 825, 828
(9th Cir. 2004); Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1155–56 (9th Cir.
2004); Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997). If petitioners do not
receive actual or constructive notice of deportation proceedings, “it would be a
violation of their rights under the Fifth Amendment of the Constitution to deport
them in absentia.” Andia, 359 F.3d at 1185.

A petitioner “does not have to actually receive notice of a deportation

hearing in order for the requirements of due process to be satisfied.” Farhoud, 122
F.3d at 796 (holding with respect to former 8 U.S.C. § 1252b(c)(1) that notice was
sufficient where mailed to applicant’s last address, where receipt was
acknowledged); see also Dobrota v. INS, 311 F.3d 1206, 1211 (9th Cir. 2002).
“Actual notice is, however, sufficient to meet due process requirements.” Khan,
374 F.3d at 828 (holding that a second notice in English was sufficient to advise
petitioner of the pendency of the action when petitioner had appeared in response
to an earlier notice in English). Cf. Sembiring v. Gonzales, 499 F.3d 981, 988–89
(9th Cir. 2007) (petitioner demonstrated nonreceipt of hearing notice for purpose
of rescinding in absentia order).

In Hamazaspyan v. Holder, 590 F.3d 744, 749 (9th Cir. 2009), the court held
that “serving a hearing notice on an alien, but not on the alien’s counsel of record,
is insufficient when an alien’s counsel of record has filed a notice of appearance
with the immigration court.” The government must serve all notices to appear and
hearing notices on the counsel of record, when an appearance has been filed. Id.

“[A]n individual placed in reinstatement proceedings under § 1231(a)(5)

cannot as a general rule challenge the validity of the prior removal order in the
reinstatement proceeding itself. But she retains the right, conferred by
§ 1229a(b)(5)(C)(ii), to seek rescission of a removal order entered in absentia,
based on lack of notice, by filing a motion to reopen ‘at any time.’” Miller v.
Sessions, 889 F.3d 998, 1002–03 (9th Cir. 2018) (holding that 8 U.S.C.
§ 1231(a)(5), which precludes reopening of a reinstated removal order where the
non-citizen leaves the United States while under the order of removal and then
reenters illegally, does not bar immigration judges from entertaining a motion to
reopen based on lack of notice under § 1229a(b)(5)(C)(ii)).

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 Cross-reference: Due Process in Immigrations Proceedings; Notice of
Hearing.

c. Proper Notice Requirements

(i) Presumption of Proper Notice

The INS will benefit from a presumption of effective delivery if the notice of
hearing was properly addressed, had sufficient postage, and was properly deposited
in the mails. See Busquets-Ivars v. Ashcroft, 333 F.3d 1008, 1010 (9th Cir. 2003).
“A notice which fails to include a proper zip code is not properly addressed.” Id.
“Notice mailed to an address different from the one [the applicant] provided could
not have conceivably been reasonably calculated to reach him.” Singh v. Ashcroft,
362 F.3d 1164, 1169 (9th Cir. 2004).

In Popa v. Holder, 571 F.3d 890, 895–96 (9th Cir. 2009), this court held that
the time and place of the removal proceeding sent after the first notice to appear is
sufficient to meet the statutory notice requirements. Note that the Supreme Court
later held in Pereira v. Sessions, 138 S. Ct. 2105 (2018), that a Notice to Appear
that fails to designate the specific time or place of a noncitizen’s removal
proceedings is not a notice to appear under § 1229a and does not trigger the stop-
time rule for purposes of cancellation of removal. Id. at 2113–14.

In Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020), cert. denied sub
nom. Fermin v. Barr, 141 S. Ct. 664 (2020), the court held that a notice to appear
that did not include the address of the immigration court, or date and time of
hearing did not deprive immigration court of jurisdiction. Id. at 893–95 (rejecting
petitioner’s claim that the NTA was insufficient to vest jurisdiction in the
immigration court, distinguishing the Supreme Court’s decision in Pereira, which
articulated the requirements for an NTA in regards to the stop-time rule under 8
U.S.C. § 1229b(d)(1)(A), but did not address the requirements for an NTA to vest
an immigration court with jurisdiction).

The applicant is responsible for informing the immigration agency of his

current address. See 8 U.S.C. § 1305(a); Farhoud v. INS, 122 F.3d 794, 796 (9th
Cir. 1997); cf. Singh v. Gonzales, 412 F.3d 1117, 1121–22 (9th Cir. 2005)
(explaining that § 1305(a) applies only so long as the applicant is within the United
States and where he or she receives written notice of the address notification
requirement); Lahmidi v. INS, 149 F.3d 1011, 1017 (9th Cir. 1998) (holding, under
the pre-1996 statutory provision, that applicant who was not informed of the

February 2021 C-33

change-of-address requirement established reasonable cause for failure to appear at
the hearing); Urbina-Osejo v. INS, 124 F.3d 1314, 1317 (9th Cir. 1997) (remanded
for further findings). However, “[o]nce the alien provides an address and phone
number, the alien’s work is done.” Velasquez-Escovar v. Holder, 768 F.3d 1000,
1005 (9th Cir. 2014) (holding that petitioner was entitled to notice where
government sent notice to an outdated address and petitioner made plausible
declaration that she had given immigration officials her current address).

Where an applicant seeks to reopen proceedings on the basis of nondelivery

or improper delivery of the notice, the IJ and BIA must consider the evidence
submitted by the applicant. See Arrieta v. INS, 117 F.3d 429, 432 (9th Cir. 1997)
(per curiam).

“[S]erving a hearing notice on an alien, but not on the alien’s counsel of

record, is insufficient when an alien’s counsel of record has filed a notice of
appearance with the immigration court.” Hamazaspyan v. Holder, 590 F.3d 744,
749 (9th Cir. 2009). The government must serve all notices to appear and hearing
notices on the counsel of record, when an appearance has been filed. Id.

(ii) Pre-IIRIRA Proceedings

Before passage of IIRIRA, service of Orders to Show Cause and written

notice of deportation hearings was governed by INA § 242B, 8 U.S.C.
§§ 1252b(a)(1) and (a)(2) (repealed 1996).

(A) OSCs

Service of the Order to Show Cause was required to be given in person to

the respondent or, if personal service was not practicable, by certified mail to the
respondent or his counsel of record, with the requirement that the certified mail
receipt be signed by the respondent or a responsible person at the respondent’s
address. Matter of Grijalva, 21 I. & N. Dec. 27, 32 (BIA 1995) (en banc). The
pre-IIRIRA notice provision required that the Order to Show Cause be written in
English and Spanish. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1155 (9th
Cir. 2004); 8 U.S.C. § 1252b(a) (repealed 1996).

A presumption of effective service for OSCs sent via certified mail to the
noncitizen’s address of record does not exist, rather the government must
demonstrate by clear, unequivocal, and convincing evidence that petitioner or a
responsible person at his address signed the certified mail return receipt for his

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OSC. Chaidez v. Gonzales, 486 F.3d 1079, 1087 (9th Cir. 2007) (concluding that
the government did not meet its burden of demonstrating signature on certified
mail receipt was that of a “responsible person” where signer signed for both OSC
and hearing notice, but petitioner submitted affidavit stating he did not know
signer, that he did not believe she lived at his address at the relevant time and that
she did not have authorization to receive service for him).

(B) Hearing Notices

Unlike service of the Order to Show Cause, written notice of the time and
place of the deportation hearing sent by certified mail to the respondent at the last
address provided to the agency can be sufficient to establish proper service by
“clear, unequivocal, and convincing” evidence, regardless of whether there is proof
of actual service or receipt of the notice by respondent. See 8 U.S.C. § 1252b(c)(1)
(repealed) (stating that written notice shall be considered sufficient if provided at
the most recent address provided by respondent); Arrieta v. INS, 117 F.3d 429, 431
(9th Cir. 1997) (per curiam); see also Matter of Grijalva, 21 I. & N. Dec. 27, 33–
34 (BIA 1995) (en banc).

Adopting the BIA’s standard in Matter of Grijalva, this court has held that
written notice of a deportation hearing sent by certified mail through the United
States Postal Service with proof of attempted delivery creates a “strong
presumption of effective service.” Mejia-Hernandez v. Holder, 633 F.3d 818, 822
(9th Cir. 2011); Arrieta, 117 F.3d at 431; Busquets-Ivars v. Ashcroft, 333 F.3d
1008, 1009 (9th Cir. 2003); see also Matter of Grijalva, 21 I. & N. Dec. at 37.
“This strong presumption of effective notice by certified mail contrasts with a
weaker presumption that results from regular mail service.” Mejia-Hernandez, 633
F.3d at 822 (holding that petitioner failed to overcome presumption of effective
notice) (citation omitted). However, this presumption of service may be overcome
if the applicant presents “substantial and probative evidence,” such as documentary
evidence from the Postal Service, or personal or third-party affidavits, that her
mailing address has remained unchanged, that neither she nor a responsible party
working or residing at the address refused service, and that there was nondelivery
or improper delivery by the Postal Service. Arrieta, 117 F.3d at 431. This court
has not addressed whether the presumption of delivery is rebutted where the INS
lacks the certified return receipt. See Busquets-Ivars, 333 F.3d at 1009 (expressing
“no opinion whether the record, lacking the return receipt, deprives the INS of the
presumption that notice was effective”). Contrast Singh v. Gonzales, 412 F.3d
1117, 1119 n.1 (9th Cir. 2005) (noting that the government did not submit into
evidence the certified mail return receipt).

February 2021 C-35

 (iii) Removal Proceedings
Proper notice procedures for removal proceedings are set forth in 8 U.S.C.
§ 1229(a)(1) and (2). The statute provides that “written notice (in this section
referred to as a ‘notice to appear’) shall be given in person to the alien (or, if
personal service is not practicable, through service by mail to the alien or to the
alien’s counsel of record, if any).” Id. at § 1229(a)(1); see also Velasquez-Escovar
v. Holder, 768 F.3d 1000, 1004 (9th Cir. 2014); Khan v. Ashcroft, 374 F.3d 825,
828 (9th Cir. 2004). “In addition, the notice must include seven specified
elements, including, inter alia, the nature of the proceedings, the conduct that is
alleged to be in violation of the law, and the date and time of the proceedings.”
Khan, 374 F.3d at 828; see also Pereira v. Sessions, 138 S. Ct. 2105, 2110–11
(2018) (discussing § 1229(a), and requirements for notice to appear); Al Mutarreb
v. Holder, 561 F.3d 1023, 1026 (9th Cir. 2009) (“[N]otice is first accomplished
through an NTA, which advises the alien that removal proceedings have begun,
alerts [the alien] to the charges against him, and informs him of the date and
location of the hearing.”). When the time and place of the removal proceeding are
sent after the first notice to appear, it is sufficient to meet the statutory
requirements of notice. Popa v. Holder, 571 F.3d 890, 896–97 (9th Cir. 2009)
(additionally holding that section of notice to appear explaining duty to inform
immigration court of any change of address was not statutorily defective). Note
that the holding in Popa may conflict with the Supreme Court’s decision in
Pereira, which held that a Notice to Appear that fails to designate the specific time
or place of a noncitizen’s removal proceedings is not a notice to appear under
§ 1229a and does not trigger the stop-time rule for purposes of cancellation of
removal. 138 S. Ct. at 2113–15.

Neither the statute nor the regulations require notices to be provided in any
language other than English. See Khan, 374 F.3d at 828 (distinguishing translation
requirement for expedited removal proceedings); see also Flores-Chavez v.
Ashcroft, 362 F.3d 1150, 1155 n.4 (9th Cir. 2004) (discussing Congressional intent
to vest discretion for translation in the agency).

“[D]elivery by regular mail does not raise the same ‘strong presumption’ as
certified mail, and less should be required to rebut such a presumption.” Salta v.
INS, 314 F.3d 1076, 1079 (9th Cir. 2002) (holding, under the new statutory
provision in 8 U.S.C. § 1229(a)(1), which does not require service by certified
mail, that the BIA erred by applying the strong presumption of delivery accorded
to certified mail under the former statutory provision); see also Mejia-Hernandez
v. Holder, 633 F.3d 818, 822 (9th Cir. 2011) (“Th[e] strong presumption of

February 2021 C-36

effective notice by certified mail contrasts with a weaker presumption that results
from regular mail service.”). An applicant’s sworn affidavit that neither she nor a
responsible party residing at her address received the notice “should ordinarily be
sufficient to rebut the presumption of delivery and entitle [the applicant] to an
evidentiary hearing.” Mejia-Hernandez, 633 F.3d at 822 (noting that the applicant
initiated the proceedings to obtain a benefit, appeared at an earlier hearing, and had
no motive to avoid the hearing). See also Sembiring v. Gonzales, 499 F.3d 981,
987–89 (9th Cir. 2007) (applying Salta and concluding petitioner overcame weaker
presumption of delivery of hearing notice for purpose of rescinding in absentia
order).

Proper service of a notice of hearing amending the date and time of a

removal hearing, does not establish proper service of an amended notice to appear,
where the amended notice to appear replaces the underlying factual allegations
lodged against the noncitizen. See Martinez v. Barr, 941 F.3d 907, 923 (9th Cir.
2019). In Martinez, the record provided no evidence that petitioner was served
with the amended notice to appear, as required by regulation and due process. Id.
As such, the court held that the BIA abused its discretion in failing to reopen
proceedings that had a facially apparent due process violation and granted the
petition for review, remanding to the BIA with instructions to reopen the removal
proceedings. Id. at 924.

(iv) Notice to Counsel Sufficient

Notice to counsel is sufficient to establish notice to the applicant. See

Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir. 2000) (per curiam) (rejecting claim of
inadequate notice where the government personally served written notice of the
hearing on petitioner’s counsel; noting that petitioner did not raise an ineffective
assistance of counsel claim); see also Al Mutarreb v. Holder, 561 F.3d 1023, 1028
n. 6 (9th Cir. 2009) (“[S]ervice of a hearing notice on an alien’s counsel, and not
on the alien himself, may be a sufficient means of providing notice of the time and
location of removal proceedings.”). Where the government fails to send notice to
counsel of record, notice is insufficient. See Dobrota v. INS, 311 F.3d 1206 (9th
Cir. 2002).

“[S]erving a hearing notice on an alien, but not on the alien’s counsel of

record, is insufficient when an alien’s counsel of record has filed a notice of
appearance with the immigration court.” Hamazaspyan v. Holder, 590 F.3d 744,
749 (9th Cir. 2009) (emphasis added). The government must serve all notices to

February 2021 C-37

appear and hearing notices on the counsel of record, when an appearance has been
filed. Id.

See also Cui v. Mukasey, 538 F.3d 1289, 1293 (9th Cir. 2008) (addressing
adequate notice in the context of fingerprint requirements and concluding that
notice for fingerprint requirement was insufficient where petitioner spoke
Mandarin and IJ directed fingerprint instructions to counsel).

(v) Notice to Juvenile Insufficient

If a juvenile under 18 years old is released from INS custody to a

responsible adult, proper written notice must be served on the juvenile and on the
adult who took custody of him. See Flores-Chavez v. Ashcroft, 362 F.3d 1150,
1163 (9th Cir. 2004). But see Cruz Pleitez v. Barr, 938 F.3d 1141, 1142 (9th Cir.
2019) (holding that service of Order to Show Cause and Notice of Hearing only on
noncitizen minor, and not on responsible adult with whom noncitizen minor lived,
did not violate the noncitizen minor’s due process rights, where noncitizen minor
had never been detained, and had affirmatively applied for asylum relief,
distinguishing Flores-Chavez).

(vi) Notice to Applicant No Longer Residing in the

United States

A notice to appear mailed to an applicant’s former address after he has

already departed the United States may not be sufficient to establish proper notice.
See Singh v. Gonzales, 412 F.3d 1117, 1121–22 (9th Cir. 2005) (holding that BIA
abused its discretion in denying a motion to reopen where applicant submitted
evidence demonstrating that the agency mailed notice to his former address after
he had departed the United States).

2. Asylum and Withholding Claims

A motion to reopen to apply or reapply for asylum or withholding of

removal based on changed country conditions that could not have been discovered
or presented at the prior hearing, may be filed at any time. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Agonafer v. Sessions, 859 F.3d
1198, 1203–04 (9th Cir. 2017) (“[T]he ninety-day deadline and one-motion limit
do not apply if the motion to reopen is based on changed country conditions.”); Ali
v. Holder, 637 F.3d 1025, 1031–32 (9th Cir. 2011) (BIA abused discretion by
denying motion to reopen); Malty v. Ashcroft, 381 F.3d 942, 945–46 (9th Cir.
2004) (holding that BIA abused its discretion in denying as untimely and

February 2021 C-38

numerically barred a motion to reopen based on changed circumstances in Egypt);
Azanor v. Ashcroft, 364 F.3d 1013, 1021–22 (9th Cir. 2004). 8 C.F.R. § 1003.2(c)
also applies to motions to reopen to apply for CAT relief based on changed country
conditions. See Go v. Holder, 744 F.3d 604, 607–09 (9th Cir. 2014) (holding that
procedural requirements specified in 8 C.F.R. § 1003.2(c) apply to CAT claims).

Where, … , the motion to reopen is based on changed circumstances

in the country to which removal has been ordered, the movant must:
(1) produce evidence that conditions have changed in the country of
removal, (2) demonstrate that the evidence is material, (3) show that
the evidence was not available and would not have been discovered or
presented at the previous hearing, and (4) demonstrate that the new
evidence, when considered together with the evidence presented at the
original hearing, would establish prima facie eligibility for the relief
sought. See 8 U.S.C. 1229a(c)(7)(ii); 8 C.F.R. § 1003.2(c)(1);
Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017).

Silva v. Barr, 965 F.3d 724, 736 (9th Cir. 2020).

A petitioner’s evidence regarding changed circumstances will almost always

relate to his initial claim; nothing in the statute or regulations requires otherwise.
The critical question is not whether the allegations bear some connection to a prior
application, but rather whether circumstances have changed sufficiently that a
petitioner who previously did not have a legitimate claim for asylum now has a
well-founded fear of future persecution. Malty, 381 F.3d at 945; see also Ramirez-
Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016); Najmabadi v. Holder, 597
F.3d 983, 987–91 (9th Cir. 2010). A petitioner’s untimely motion to reopen may
qualify under the changed conditions exception under 8 C.F.R. § 1003.2(c)(3)(ii),
“even if the changed country conditions are made relevant by a change in the
petitioner’s personal circumstances.” Chandra v. Holder, 751 F.3d 1034, 1039 (9th
Cir. 2014) (concluding BIA abused its discretion in denying motion to reopen).

“[T]he changed country conditions exception is concerned with two points

in time: the circumstances of the country at the time of the petitioner’s previous
hearing, and those at the time of the motion to reopen.” Salim v. Lynch, 831 F.3d
1133, 1137 (9th Cir. 2016).

The exception for changed country conditions does not apply to changes in
United States asylum law. See Azanor, 364 F.3d at 1022 (rejecting claim that
recognition of female genital mutilation as a ground for asylum constituted

February 2021 C-39

changed country conditions within the meaning of former 8 C.F.R. § 3.2(c)(3)(ii)).
In addition, changes in a noncitizen’s personal circumstances do not provide a
basis to file a successive or untimely asylum application. See Chen v. Mukasey,
524 F.3d 1028, 1031–34 (9th Cir. 2008) (deferring to BIA’s interpretation that,
despite 8 U.S.C. § 1158(a)(2)(D)’s exception for time and number limits in cases
of “changed circumstances,” a successive and untimely application must satisfy
requirements for motion to reopen and 8 U.S.C. § 1229a(c)(7)(C)’s more
restrictive changed country conditions exception); see also Almaraz v. Holder, 608
F.3d 638, 640–41 (9th Cir. 2010) (holding it was not an abuse of discretion to deny
motion to reopen as untimely where the diagnosis of HIV did not constitute
changed circumstances “arising in the country of nationality” under 8 C.F.R.
§ 1003.2(c)(3)(ii), and petitioner failed to establish that certain provisions of the
Dominican Republic-Central America-United States Free Trade Agreement were
material to his claim).

3. Jointly-Filed Motions

An exception to the number and time restrictions exists if the motion to

reopen is agreed upon by all parties and jointly filed. See 8 C.F.R.
§ 1003.2(c)(3)(iii); Bolshakov v. INS, 133 F.3d 1279, 1281–82 (9th Cir. 1998)
(rejecting government’s contention that the “exception in section 3.2(c)(3)(iii) is an
administrative remedy that must be exhausted before an alien can petition the
Court of Appeals”). However, the deadline for filing a motion to reopen is not
tolled while a petitioner waits for a response from the District Counsel regarding
whether the government will join the motion. See Valeriano v. Gonzales, 474 F.3d
669, 673–75 (9th Cir. 2007).

4. Government Motions Based on Fraud

The government may, at any time, bring a motion based on fraud in the
original proceeding or a crime that would support termination of asylum. See 8
C.F.R. § 1003.2(c)(3)(iv).

5. Movant in Custody

A motion to reopen to rescind an in absentia order of removal may be filed

at any time if the applicant demonstrates that he failed to appear at the hearing
because he was in state or federal custody. See 8 C.F.R. § 1003.2(c)(3) (referring
to 8 C.F.R. § 1003.23(b)(4)(ii) and (b)(4)(iii)(A)(2)).

February 2021 C-40

 6. Sua Sponte Reopening by the Agency
The BIA may at any time reopen proceedings sua sponte. See 8 C.F.R.
§ 1003.2(a); Menendez-Gonzalez v. Barr, 929 F.3d 1113, 1116 (9th Cir. 2019).
“Similarly, ‘[a]n Immigration Judge may upon his or her own motion at any time,
or upon motion of the Service or the alien, reopen or reconsider any case.’”
Menendez-Gonzalez, 929 F.3d at 1116 (quoting 8 C.F.R. § 1003.23(b)(1)). “The
election to reopen or reconsider on its own motion is commonly called the exercise
of ‘sua sponte’ authority.” Menendez-Gonzalez, 929 F.3d at 1116. “In practice, the
agency’s decision to exercise its sua sponte authority is often not actually initiated
by the agency on its own but is instead prompted, …, by a party filing a motion to
reopen sua sponte.” Id.

“In order for an individual to obtain sua sponte relief under 8 C.F.R.
§ 1003.2(a), the Board must be persuaded that the respondent’s situation is truly
exceptional.” Lona v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020) (internal
quotation marks and citation omitted). “Importantly, however, the Board is not
required—by regulation or its own decisions—to reopen proceedings sua sponte in
exceptional situations.” Id. (internal quotation marks and citation omitted).

This court lacks jurisdiction to review a claim that the agency should have
exercised its sua sponte power to reopen proceedings. See Lona, 958 F.3d at 1227;
Menendez-Gonzalez, 929 F.3d at 1115 & 1116 (explaining that “denials of motions
to reopen sua sponte generally are not reviewable because the decisions are
committed to agency discretion”); Menendez v. Whitaker, 908 F.3d 467, 471 (9th
Cir. 2018) (“We generally lack jurisdiction to review the BIA’s decision not to
invoke its sua sponte authority to reopen proceedings.”); Go v. Holder, 744 F.3d
604, 609–10 (9th Cir. 2014); Sharma v. Holder, 633 F.3d 865, 874 (9th Cir. 2011);
Minasyan v. Mukasey, 553 F.3d 1224, 1229 (9th Cir. 2009); Toufighi v. Mukasey,
538 F.3d 988, 993 n.8 (9th Cir. 2008); Ekimian v. INS, 303 F.3d 1153, 1159 (9th
Cir. 2002); Abassi v. INS, 305 F.3d 1028, 1032 (9th Cir. 2002). Additionally, the
court lacks jurisdiction to review the BIA’s decision to overturn a sua sponte
motion by IJ to reopen deportation proceedings. Mejia-Hernandez v. Holder, 633
F.3d 818, 823–24 (9th Cir. 2011).

“This court generally lacks jurisdiction to review decisions denying sua

sponte reopening because of ‘the absence of a judicially manageable standard for
[the court] to evaluate the BIA’s exercise of discretion.’” Menendez-Gonzalez, 929
F.3d at 1117 (quoting Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014)).

February 2021 C-41

 Where, “the BIA concludes that it lacks the authority to reopen, rather than
denying a motion to reopen as an exercise of discretion, … Ekimian does not
preclude … jurisdiction.” Singh v. Holder, 771 F.3d 647, 650 (9th Cir. 2014).
Additionally, the court has “jurisdiction to review the Board’s decision [denying
sua sponte reopening] so as to assure that the Board made its discretionary decision
on the correct understanding of the applicable legal principles.” Bonilla v. Lynch,
840 F.3d 575, 588 (9th Cir. 2016) (granting the petition for review where the BIA
premised its decision on an erroneous understanding of the legal principles
concerning prior deportation and reopening of deportation proceedings). See also
Menendez-Gonzalez, 929 F.3d at 1120 (holding that the present petition did not fit
within the narrow exception where the BIA’s decision was based on legal or
constitutional error); Menendez v. Whitaker, 908 F.3d 467, 471 (9th Cir. 2018)
(“[W]e have jurisdiction to review the reasoning behind the BIA’s sua sponte
denial of reopening for the limited purpose of reviewing the reasoning behind the
decisions for legal or constitutional error.” (internal citation and quotation marks
omitted)). “If the BIA ‘relied on an incorrect legal premise,’ [the court] ‘remand[s]
to the BIA so it may exercise its authority against the correct legal background.’”
Menendez, 908 F.3d at 471 (quoting Bonilla, 840 F.3d at 588).

The scope of … review under Bonilla is limited to those situations

where it is obvious that the agency has denied sua sponte relief not as
a matter of discretion, but because it erroneously believed that the law
forbade it from exercising its discretion, …, or that exercising its
discretion would be futile, … . In other words, … review under
Bonilla is constricted to legal or constitutional error that is apparent
on the face of the BIA’s decision and does not extend to speculating
whether the BIA might have misunderstood some aspect of its
discretion.

Lona, 958 F.3d at 1234 (citations omitted).

In Mata v. Lynch, 576 U.S. 143, 147 (2015), the Supreme Court reiterated
that “circuit courts have jurisdiction when an alien appeals from the Board’s denial
of a motion to reopen a removal proceeding.” “[T]hat jurisdiction remains
unchanged if the Board, in addition to denying the alien’s statutorily authorized
motion, states that it will not exercise its separate sua sponte authority to reopen
the case.” Id. at 148 (holding court of appeals had jurisdiction over BIA’s denial
of motion to reopen, which was based on timeliness reasons, notwithstanding that
the BIA determined not to exercise its sua sponte authority to reopen).

February 2021 C-42

 Cross-reference: Equitable Tolling, Ineffective Assistance of Counsel.

VI. EQUITABLE TOLLING

The statutory filing deadlines for a motion to reopen (within 90 days of the
date of entry of the order) or a motion to reconsider (within 30 days of the date of
entry of the order) are amenable to equitable tolling. See Lona v. Barr, 958 F.3d
1225, 1230 (9th Cir. 2020) (“The BIA may equitably toll [the] statutory filing
deadline [for filing a motion to reconsider], including in cases where the petitioner
seeks excusal from untimeliness based on a change in the law that invalidates the
original basis for removal.”); Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th
Cir. 2015) (the deadline for filing a motion to reopen is subject to equitable
tolling). Equitable tolling is available “when a petitioner is prevented from filing
because of deception, fraud, or error, as long as the petitioner acts with due
diligence in discovering the deception, fraud, or error.” Iturribarria v. INS, 321
F.3d 889, 897 (9th Cir. 2003). See also Lona, 958 F.3d at 1230; Mejia-Hernandez
v. Holder, 633 F.3d 818, 824 (9th Cir. 2011) (“Equitable tolling is applied in
situations where, despite all due diligence, the party requesting equitable tolling is
unable to obtain vital information bearing on the existence of the claim.”).
Likewise, the 180-day limit on filing a motion to reopen and rescind an in absentia
removal order may also be tolled. See Fajardo v. INS, 300 F.3d 1018, 1022 (9th
Cir. 2002) (180-day limit for filing motion to reopen proceedings conducted in
absentia based on exceptional circumstances tolled due to deceptive actions of
notaries).

“The jurisdictional question (whether the court has power to decide if tolling
is proper) is of course distinct from the merits question (whether tolling is
proper).” Mata v. Lynch, 576 U.S. 143, 150 (2015).

A. Circumstances Beyond the Applicant’s Control

In Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) (en banc),
overruled on other grounds by Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en
banc), the court held that equitable tolling is available “in situations where, despite
all due diligence, [the party invoking equitable tolling] is unable to obtain vital
information bearing on the existence of the claim.” Socop-Gonzalez, 272 F.3d at
1193 (internal quotation marks omitted) (applying equitable tolling where INS
officer repeatedly provided erroneous information to the applicant). See also Lona
v. Barr, 958 F.3d 1225, 1230 (9th Cir. 2020) (“[E]quitable tolling is available
where, despite all due diligence, the party invoking the doctrine is unable to obtain

February 2021 C-43

vital information bearing on the existence of the claim.” (internal quotation marks
and citation omitted)). “The inability to obtain vital information bearing on the
existence of a claim need not be caused by the wrongful conduct of a third party.
Rather, the party invoking tolling need only show that his or her ignorance of the
limitations period was caused by circumstances beyond the party’s control.”

See also Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 845 (9th Cir. 2006)
(holding that the IJ’s erroneous statement that petitioner’s conviction qualified as
an aggravated felony and petitioner’s unawareness of subsequent caselaw to the
contrary did not warrant equitable tolling). Compare United States v. Camacho-
Lopez, 450 F.3d 928, 930 (9th Cir. 2006) (reasoning in a collateral attack on an
underlying removal order that IJ’s erroneous, but qualified, advice about whether
conviction constituted an aggravated felony invalidated prior deportation order).

B. Fraudulent or Erroneous Attorney Conduct

This court recognizes equitable tolling in cases involving ineffective

assistance by an attorney or representative, coupled with fraudulent or erroneous
conduct. See, e.g., Iturribarria v. INS, 321 F.3d 889, 897–98 (9th Cir. 2003).
“Where the ineffective performance was that of an actual attorney and the attorney
engaged in fraudulent activity causing an essential action in her client’s case to be
undertaken ineffectively, out of time, or not at all, equitable tolling is available.”
Id. at 898; see also Ray v. Gonzales, 439 F.3d 582, 588 n.5 (9th Cir. 2006); Singh
v. Ashcroft, 367 F.3d 1182, 1185–86 (9th Cir. 2004); Fajardo v. INS, 300 F.3d
1018, 1022 (9th Cir. 2002); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1224 (9th Cir.
2002); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999); cf. Hamoui v. Ashcroft,
389 F.3d 821, 826 (9th Cir. 2004) (stating that “[i]neffective assistance of counsel
amounting to a due process violation permits untimely reopening”). As such,
“[w]hen the issue is fraudulent representation, the limitations period is tolled until
the petitioner definitively learns of counsel’s fraud.” Mejia-Hernandez v. Holder,
633 F.3d 818, 824 (9th Cir. 2011) (internal quotation marks and citation omitted).
“Equitable tolling applies in ineffective assistance of counsel cases because,
‘[a]lthough there is no Sixth Amendment right to counsel in a deportation
proceeding, the due process guarantees of the Fifth Amendment still must be
afforded to an alien petitioner.’” Bonilla v. Lynch, 840 F.3d 575, 582 (9th Cir.
2016) (citation omitted).

In Singh v. Holder, 658 F.3d 879 (9th Cir. 2011), [the court]
succinctly explained the requirements for equitable tolling due to
ineffective assistance of counsel. The petitioner must demonstrate:

February 2021 C-44

 “(a) that he was prevented from timely filing his motion due to prior
counsel’s ineffectiveness; (b) that he demonstrated due diligence in
discovering counsel’s fraud or error; and (c) that he complied with the
procedural requirements of Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988).” Id. at 884. Having met these procedural requirements,
the alien must show that his “counsel’s performance was deficient,
and [that he] suffered prejudice” as a result. Id. at 885.

Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 (9th Cir. 2015) (concluding
petitioner was entitled to equitable tolling of 90-day limitation period for motions
to reopen where there was ineffective assistance of counsel).

Ineffective assistance of counsel, where a nonattorney engaged in fraudulent

activity causes an essential action in his or her client’s case to be undertaken
ineffectively, may equitably toll the statute of limitations. See Fajardo, 300 F.3d
at 1020; see also Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1099 (9th Cir. 2005)
(holding that fraudulent conduct by a non-attorney warranted equitable tolling of
the deadline to file a motion to reopen under NACARA); Rodriguez-Lariz, 282
F.3d at 1224.

See also Avagyan v. Holder, 646 F.3d 672, 678 (9th Cir. 2011) (concluding
that “even if a litigant is not constitutionally entitled to counsel, principles of
equity can justify tolling a limitations period where counsel’s behavior is
sufficiently egregious”).

C. Changes in Law

“Although claims for equitable tolling typically arise in conjunction with

claims of ineffective assistance of counsel, … , claims based on changes in the law
are not unheard of, nor are they prohibited.” Lona v. Barr, 958 F.3d 1225, 1230–
31 (9th Cir. 2020). As such, “[t]he BIA may equitably toll [the] statutory filing
deadline [for filing a motion to reconsider], including in cases where the petitioner
seeks excusal from untimeliness based on a change in the law that invalidates the
original basis for removal. Id. at 1230 (holding that given the lack of evidence that
petitioner took any action prior to the change in law, and the obvious and
uncomplicated nature of her underlying claim, the BIA’s implicit denial of
petitioner’s claim for equitable tolling was not arbitrary, irrational, or contrary to
law).

February 2021 C-45

 D. Due Diligence

The filing deadline may be tolled until the petitioner, exercising due
diligence, discovers the fraud, deception, or error. In cases involving ineffective
assistance, this court has found that the limitation period may be tolled until the
petitioner meets with new counsel to discuss his file, thereby becoming aware of
the harm resulting from the misconduct of his prior representatives. See
Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir. 2003); see also Mejia-Hernandez v.
Holder, 633 F.3d 818, 824–26 (9th Cir. 2011) (discussing diligence, and
concluding that petitioner was entitled to equitable tolling of deadline to apply for
relief under NACARA); Sun v. Mukasey, 555 F.3d 802, 806 (9th Cir. 2009)
(concluding that petitioner was entitled to equitable tolling where she acted with
due diligence); Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1099–1100 (9th Cir.
2005) (holding that petitioner acted with due diligence in making a FOIA request
for court case file after discovering former counsel’s deception); Fajardo v. INS,
300 F.3d 1018, 1021 (9th Cir. 2002).

The time limitation is not tolled while the petitioner awaits a response from
the District Counsel regarding whether the government would join a motion to
reopen because “attempting to obtain nonvital information or acquiescence is not
‘diligence’ within the meaning of our equitable tolling jurisprudence.” Valeriano
v. Gonzales, 474 F.3d 669, 673 (9th Cir. 2007).

“[R]eview of petitioner’s diligence must be fact-intensive and case-specific,

assessing the reasonableness of petitioner’s actions in the context of his or her
particular circumstances.” Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir. 2011).

[T]o assess whether petitioner exercised due diligence, [the court]

consider[s] three issues. First, we determine if (and when) a
reasonable person in petitioner’s position would suspect the specific
fraud or error underlying her motion to reopen. Second, we ascertain
whether petitioner took reasonable steps to investigate the suspected
fraud or error, or, if petitioner is ignorant of counsel’s shortcomings,
whether petitioner made reasonable efforts to pursue relief. … Third,
we assess when the tolling period should end; that is when petitioner
definitively learns of the harm resulting from counsel’s deficiency, or
obtains vital information bearing on the existence of his claim.

February 2021 C-46

Id. at 679 (internal citations and quotation marks omitted) (concluding BIA abused
its discretion in denying as untimely motion to reopen on grounds of IAC with
respect to application for adjustment of status).

Ignorance is not an excuse where there is sufficient notice under the due
process clause. Luna v. Holder, 659 F.3d 753, 760 (9th Cir. 2011) (concluding that
petitioner failed to establish due diligence).

See also Bonilla v. Lynch, 840 F.3d 575, 583 (9th Cir. 2016) (“Given the
exceedingly long lapse of time before seeking further legal advice, the lack of any
continuing relationship or follow up with the lawyer relied upon, and the general
nature of the advice offered, the BIA appropriately concluded that Bonilla did not
make “reasonable efforts to pursue relief,” …, and so did not demonstrate the
diligence necessary for equitable tolling.” (citation omitted)).

VII. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Presented Through a Motion to Reopen

“Where the facts surrounding allegedly ineffective representation by counsel

were unavailable to the petitioner at an earlier stage of the administrative process,
motions before the BIA based on claims of ineffective assistance of counsel are
properly deemed motions to reopen.” Iturribarria v. INS, 321 F.3d 889, 891 (9th
Cir. 2003) (holding that “the BIA misapplied its own regulations when it classified
[petitioner’s] motion alleging ineffective assistance of counsel as a motion to
reconsider rather than a motion to reopen”); see also Mohammed v. Gonzales, 400
F.3d 785, 792 (9th Cir. 2005); Siong v. INS, 376 F.3d 1030, 1036 (9th Cir. 2004);
Singh v. Ashcroft, 367 F.3d 1182, 1185 (9th Cir. 2004).

Like an improperly captioned motion asserting an ineffective assistance of

counsel claim, an appeal to the BIA asserting such a claim is effectively a motion
to reopen. See Correa-Rivera v. Holder, 706 F.3d 1128, 1131 (9th Cir. 2013)
(where petitioner improperly used an appeal to BIA as vehicle to allege ineffective
assistance of counsel, the appeal was effectively a motion to reopen).

B. Exhaustion and Proper Forum

Where ineffective assistance of counsel (“IAC”) occurred “prior to and

during the removal proceeding,” petitioner must first raise IAC claims in a motion
to reopen before the BIA, and not in district court. See Puga v. Chertoff, 488 F.3d

February 2021 C-47

812, 815–16 (9th Cir. 2007); see also Singh v. Napolitano, 649 F.3d 899 (9th Cir.
2011) (concluding that petitioner failed to exhaust his administrative remedies by
failing to first file a motion to reopen with the BIA based on IAC that occurred
after the BIA decision, prior to bringing his habeas petition in district court); Liu v.
Waters, 55 F.3d 421, 426 (9th Cir. 1995) (requiring petitioner to exhaust IAC
claim through a motion to reopen before the BIA). Where the IAC claim arises out
of attorney misconduct after the BIA decision on appeal (e.g. attorney failed to file
petition for review), petitioner can bring the IAC claim in district court habeas
proceedings without filing a motion to reopen. See Singh v. Gonzales, 499 F.3d
969, 972 (9th Cir. 2007) (district court retains jurisdiction post-REAL ID Act to
review claims of post-BIA IAC because not reviewing final order of removal); see
also Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1046 (9th Cir. 2000)
(affirming the district court’s grant of writ of habeas corpus based on IAC where
counsel filed an untimely petition for review with this court). Petitioner may also
bring these claims in a motion to reopen before the BIA. See Singh, 499 F.3d at
979 (“That Singh may have an alternative avenue for relief does not change our
statutory analysis.”).

See also Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order)
(stating that to the extent petitioners contend they received ineffective assistance of
counsel, the court lacked jurisdiction because it was not raised before the BIA).

C. Standard of Review

The court reviews findings of fact regarding counsel’s performance for

substantial evidence. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). The
court reviews for abuse of discretion the BIA’s denial of a motion to reopen, and
reviews de novo claims of due process violations in removal proceedings,
including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400
F.3d 785, 791–92 (9th Cir. 2005). See also United States v. Lopez-Chavez, 757
F.3d 1033, 1037–38 (9th Cir. 2014) (reviewing denial of motion to dismiss
indictment where it was based on alleged due-process defects due to ineffective
assistance of counsel in the underlying deportation proceeding); Kwong v. Holder,
671 F.3d 872, 880 (9th Cir. 2011) (reviewing motion to remand based on
ineffective assistance of counsel for abuse of discretion, but purely legal questions,
such as due process claims, de novo).

Cross-reference: Standards of Review.

February 2021 C-48

 D. Requirements for Due Process Violation

1. Constitutional Basis

Although individuals in immigration proceedings do not enjoy the Sixth

Amendment’s guarantee of an attorney’s assistance at government expense, they
do have the right to obtain counsel of their own choice. Ray v. Gonzales, 439 F.3d
582, 586–87 (9th Cir. 2006). “[T]he extent to which aliens are entitled to effective
assistance of counsel during [immigration] proceedings is governed by the Fifth
Amendment due process right to a fair hearing.” Lara-Torres v. Ashcroft, 383 F.3d
968, 972 (9th Cir. 2004) (emphasis omitted), amended by 404 F.3d 1105 (9th Cir.
2005) (order); see also Salazar-Gonzalez v. Lynch, 798 F.3d 917, 921 (9th Cir.
2015) (“The right to effective assistance of counsel in immigration proceedings
stems from the Fifth Amendment’s guarantee of due process.”); Blanco v.
Mukasey, 518 F.3d 714, 722 (9th Cir. 2008). The Sixth Amendment
“reasonableness” standard for ineffective assistance of counsel in criminal
proceedings “does not attach to civil immigration matters.” Lara-Torres, 383 F.3d
at 974.

“Ineffective assistance of counsel in a deportation proceeding is a denial of

due process under the Fifth Amendment if the proceeding was so fundamentally
unfair that the alien was prevented from reasonably presenting his case.” Ortiz v.
INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (internal quotation marks omitted); see
also United States v. Lopez-Chavez, 757 F.3d 1033, 1041 (9th Cir. 2014) (“There
is no constitutional right to counsel in deportation proceedings, but must be
accorded due process under the Fifth Amendment); Torres-Chavez v. Holder, 567
F.3d 1096, 1101 (9th Cir. 2009) (rejecting petitioner’s contention that he received
IAC where attorney conceded petitioner’s alienage and did not inform him about
the advantages of remaining silent); Maravilla Maravilla v. Ashcroft, 381 F.3d
855, 857–58 (9th Cir. 2004) (per curiam). “An alien’s right to a full and fair
presentation of his claim includes the right to have an attorney who would present
a viable legal argument on his behalf supported by relevant evidence, if he could
find one willing and able to do so.” Lopez-Chavez, 757 F.3d at 1041 (internal
quotation marks and citation omitted). A noncitizen must also show prejudice by
demonstrating the alleged violation affected the outcome of the proceedings. See
Torres-Chavez, 567 F.3d at 1100. This court has explained that “aliens shoulder a
heavier burden of proof in establishing ineffective assistance of counsel under the
Fifth Amendment than under the Sixth Amendment.” Id. (internal quotation marks
and citation omitted).

February 2021 C-49

 Where, notwithstanding notice of the right to retain counsel and the
availability of free legal services, “an individual chooses not to retain an attorney,
and instead knowingly relies on assistance from individuals not authorized to
practice law, such a voluntary choice will not support a due process claim based on
ineffective assistance of counsel.” Hernandez v. Mukasey, 524 F.3d 1014, 1020
(9th Cir. 2008) (concluding that where petitioners waived their right to counsel,
and knowingly relied on a non-attorney immigration consultant for advice, there
was no denial of due process because “reliance on a non-attorney [is] not
sanctioned by law”).

“[D]ue process rights to assistance of counsel do not extend beyond the

fairness of the hearing itself.” Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050 (9th
Cir. 2008). The “Fifth Amendment simply does not apply to preparation and filing
of a petition that does not relate to the fundamental fairness of an ongoing
proceeding.” Id. at 1051. Furthermore, the legal services must be rendered “while
proceedings were ongoing.” Id. at 1050 (concluding there was no ineffective
assistance of counsel, where attorney failed to properly file visa application and the
deficiency did not relate to the substance of an ongoing proceeding).

2. Counsel’s Competence
To prevail on an ineffective assistance of counsel claim, the petitioner must
make two showings. First, the petitioner must demonstrate that counsel failed to
perform with sufficient competence. See Mohammed v. Gonzales, 400 F.3d 785,
793 (9th Cir. 2005); see also Salazar-Gonzalez v. Lynch, 798 F.3d 917, 921 (9th
Cir. 2015). “We do not require that [petitioner’s] representation be brilliant, but it
cannot serve to make [the] immigration hearing so fundamentally unfair that
[petitioner] was prevented from reasonably presenting his case.” Lin v. Ashcroft,
377 F.3d 1014, 1027 (9th Cir. 2004) (internal quotation marks omitted) (holding
that counsel’s failure to investigate and present the factual and legal basis of Lin’s
asylum claim, attend the hearing in person, advocate on his behalf at the hearing,
and file brief on appeal, constituted ineffective assistance of counsel). Impinging
on a petitioner’s “authority to decide whether, and on what terms, to concede his
case” by failing to insure counsel’s withdrawal will not prejudice the petitioner can
“effectively deprive[] [the petitioner] of the ability to present his case … .” See
Nehad v. Mukasey, 535 F.3d 962, 971–72 (9th Cir. 2008) (concluding that
counsel’s performance was deficient where counsel pressured client to accept
voluntary departure under threat of counsel’s withdrawal two hours before
hearing); see also United States v. Lopez-Chavez, 757 F.3d 1033, 1041–42 (9th
Cir. 2014) (counsel’s concession that prior drug conviction was an aggravated

February 2021 C-50

felony under the INA and failure to appeal the question to the Court of Appeals
constituted deficient performance).

Cross-reference: Cases Finding Ineffective Assistance, below.

3. Prejudice
Second, petitioner must generally show that she was prejudiced by her
counsel’s performance. See Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir.
2005); see also Salazar-Gonzalez v. Lynch, 798 F.3d 917, 921 (9th Cir. 2015) (“an
alien’s burden is to demonstrate that his lawyer’s errors may have affected the
outcome of the proceedings”); Kwong v. Holder, 671 F.3d 872, 880 (9th Cir.
2011); Torres-Chavez v. Holder, 567 F.3d 1096, 1101 (9th Cir. 2009) (rejecting
petitioner’s contention that he received IAC where attorney conceded petitioner’s
alienage and did not inform him about the advantages of remaining silent); Blanco
v. Mukasey, 518 F.3d 714, 722 (9th Cir. 2008). A showing of prejudice can be
made if counsel’s performance “was so inadequate that it may have affected the
outcome of the proceedings.” Iturribarria v. INS, 321 F.3d 889, 899–90 (9th Cir.
2003) (internal quotation marks omitted); see also Flores v. Barr, 930 F.3d 1082,
1087 (9th Cir. 2019) (per curiam) (stating “the petitioner need only demonstrate
that counsel’s deficient performance ‘may have affected the outcome of the
proceedings’ by showing ‘plausible’ grounds for relief”); Correa-Rivera v. Holder,
706 F.3d 1128, 1133 (9th Cir. 2013) (prejudice will be found “‘when the
performance of counsel was so inadequate that it may have affected the outcome of
the proceedings.’” (quoting Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999)));
Santiago-Rodriguez v. Holder, 657 F.3d 820, 835–36 (9th Cir. 2011) (petitioner
was prejudiced by counsel’s ineffective assistance where counsel admitted to
factual allegations without any factual basis for doing so); Morales Apolinar v.
Mukasey, 514 F.3d 893, 897 (9th Cir. 2008); Mohammed, 400 F.3d at 793–94;
Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 857–58 (9th Cir. 2004) (per
curiam); cf. Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir. 2004) (stating that
petitioner must show “substantial prejudice, which is essentially a demonstration
that the alleged violation affected the outcome of the proceedings”) (internal
quotation marks omitted), amended by 404 F.3d 1105 (9th Cir. 2005) (order).

The court will “consider the underlying merits of the case to come to a
tentative conclusion as to whether [petitioner’s] claim, if properly presented, would
be viable.” Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004). To show
prejudice, the noncitizen “only needs to show that he has plausible grounds for

February 2021 C-51

relief.” Id. (internal quotation marks omitted); see also Flores, 930 F.3d at 1087;
Morales Apolinar, 514 F.3d at 898.

“Certain types of ineffective assistance entitle a petitioner to a rebuttable

presumption of prejudice.” Montes-Lopez v. Holder, 694 F.3d 1085, 1090 (9th Cir.
2012). “[W]here an alien is prevented from filing an appeal in an immigration
proceeding due to counsel’s error, the error deprives the alien of the appellate
proceeding entirely.” Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th
Cir. 2000). “In cases involving such error, the proceedings are subject to a
‘presumption of prejudice,’ and [the court] will find that a petitioner has been
denied due process if he can demonstrate ‘plausible grounds for relief’ on his
underlying claim.” Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006) (applying a
presumption of prejudice where petitioner’s counsel failed to file an appeal and
concluding that the government failed to rebut that presumption where petitioner’s
asylum application provided plausible grounds for relief) (citation omitted); see
also Salazar-Gonzalez v. Lynch, 798 F.3d 917, 921 (9th Cir. 2015) (“When a
lawyer’s error results in an alien being denied his right to appeal altogether, we
apply a ‘presumption of prejudice.’”); Siong v. INS, 376 F.3d 1030, 1037 (9th Cir.
2004). However, the presumption of prejudice is rebutted where a petitioner
cannot demonstrate that his claims are viable. Rojas-Garcia v. Ashcroft, 339 F.3d
814, 826–27 (9th Cir. 2003) (presumption rebutted where petitioner had no
plausible claim to adjustment of status or voluntary departure).

Note that although “an alien who shows that he has been denied the statutory
right to be represented by counsel in an immigration proceeding need not also
show that he was prejudiced by the absence of the attorney[,]” Montes-Lopez, 694
F.3d at 1093–94, “not all violations of the right to counsel are treated as structural
errors mandating automatic reversal[,]” Gomez-Velazco v. Sessions, 879 F.3d 989,
993 (9th Cir. 2018). Rather, “[i]f the right to counsel has been wrongly denied
only at a discrete stage of the proceeding, and an assessment of the error’s effect
can readily be made, then prejudice must be found to warrant reversal.” Gomez-
Velazco, 879 F.3d at 993–94 (holding that petitioner failed to show even if right to
counsel was violated, the denial of counsel caused him any prejudice). In Gomez-
Velazco, there was no presumption of prejudice, where although petitioner may
have been improperly denied counsel during initial interaction with DHS officers,
he was able to consult with counsel before the removal order was executed, and the
prejudicial effect could be assessed. Id. (distinguishing the case from instances
where counsel is precluded from participating in the merits hearing before an
immigration judge). The court in Gomez-Velazco assumed without deciding that
petitioner’s right to counsel had been violated. Id. at 992.

February 2021 C-52

 Cross-reference: Due Process in Immigration Proceedings, Prejudice
Requirement, Ineffective Assistance of Counsel.

a. Exception for In Absentia Orders

Where a claim of ineffective assistance of counsel is the basis for moving to
reopen and rescind an in absentia removal order, a showing of prejudice is not
required. See Sanchez Rosales v. Barr, 980 F.3d 716, 717 (9th Cir. 2020) (“A
showing of prejudice is not required when ineffective assistance leads to an in
absentia order of removal.”); Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003);
see also Monjaraz-Munoz v. INS, 327 F.3d 892 (9th Cir. 2003) (granting petition
without discussing prejudice), amended by 339 F.3d 1012 (9th Cir. 2003) (order).
In Sanchez Rosales, the court held that the BIA’s denial of petitioners’ motion to
reopen based on a failure to show prejudice was an abuse of discretion. 980 F.3d
at 720. “Petitioners were not required to demonstrate that the ineffective assistance
of the non-attorney notario caused them prejudice[,” where they alleged that such
ineffective assistance caused them to be ordered removed in absentia. Id. at 719–
20.

E. The Lozada Requirements

A motion to reopen based on ineffective assistance of counsel must

generally meet the three procedural requirements set forth by the BIA in Matter of
Lozada, 19 I. & N. Dec. 637 (BIA 1988). The petitioner must:

1) submit an affidavit explaining his agreement with former counsel

regarding his legal representation, 2) present evidence that prior
counsel has been informed of the allegations against her and given an
opportunity to respond, 3) either show that a complaint against prior
counsel was filed with the proper disciplinary authorities or explain
why no such complaint was filed.

Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003); see also Al Ramahi v.
Holder, 725 F.3d 1133, 1138–39 (9th Cir. 2013) (“Compliance with Lozada
ensures that the BIA has an objective basis for assessing the substantial number of
claims of ineffective assistance of counsel that come before [it].” (internal
quotation marks and citation omitted, alteration in original)); Tamang v. Holder,
598 F.3d 1083, 1090–91 (9th Cir. 2010) (failure to satisfy Lozada was fatal to
ineffective assistance of counsel claim where ineffectiveness was not plain on face
of record and petitioner failed to provide any information regarding his purported

February 2021 C-53

former counsel); Hernandez v. Mukasey, 524 F.3d 1014, 1018 (9th Cir. 2008);
Morales Apolinar v. Mukasey, 514 F.3d 893, 895–96 (9th Cir. 2008); Monjaraz-
Munoz v. INS, 327 F.3d 892, 896 n.1 (9th Cir. 2003), amended by 339 F.3d 1012
(9th Cir. 2003) (order); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1226–27 (9th Cir.
2002). If the petitioner fails to comply with the procedural requirements of
Lozada, he is entitled to relief only if the ineffectiveness of counsel was plain on
its face. See Guan v. Barr, 925 F.3d 1022, 1033 (9th Cir. 2019); Tamang, 598
F.3d at 1090.

The court “presume[s], as a general rule, that the Board does not abuse its
discretion when it obligates petitioners to satisfy Lozada’s literal requirements.”
Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004). However, the court in
Correa-Rivera v. Holder, 706 F.3d 1128, 1131–32 (9th Cir. 2013) held that the
BIA abused its discretion by requiring petitioner to provide correspondence from
the state Bar indicating receipt of a complaint where petitioner provided a copy of
the complaint with the motion, along with a declaration from the lawyer “admitting
responsibility and absolving the client of any culpability for the delay.”

1. Exceptions

This court has explained that the Lozada requirements are not sacrosanct,
and the court has not hesitated to address an ineffective assistance of counsel claim
even when petitioner fails to comply strictly with Lozada. See Ray v. Gonzales,
439 F.3d 582, 588 (9th Cir. 2006) (identifying cases holding that the failure to
comply with Lozada was not dispositive); see also Morales Apolinar v. Mukasey,
514 F.3d 893, 896 (9th Cir. 2008) (explaining that “[t]he Lozada factors are not
rigidly applied, especially where their purpose is fully served by other means”).
For example, the failure to comply with the Lozada requirements is not fatal where
the alleged ineffective assistance is plain on the face of the administrative record.
See Guan v. Barr, 925 F.3d 1022, 1033 (9th Cir. 2019) (explaining that because
petitioner failed to comply with the procedural requirements of Lozada, he was
entitled to relief only if “the ineffectiveness of counsel was plain on its face” and
determining that the record did not show counsel performed deficiently); Castillo-
Perez v. INS, 212 F.3d 518, 525–26 (9th Cir. 2000). “In addition, [the court has]
concluded that ‘arbitrary application’ of the Lozada command is not warranted if
petitioner shows ‘diligent efforts’ to comply were unsuccessful due to factors
beyond petitioner’s control.” Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004).

See also Salazar-Gonzalez v. Lynch, 798 F.3d 917, 920 n.2 (9th Cir. 2015)
(“Strict compliance with Lozada is not always necessary for equitable tolling.”);

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Morales Apolinar, 514 F.3d at 896 (excusing failure to report attorney’s
misconduct to a disciplinary authority or to confront his attorney direction where
such action would have been futile); Lo v. Ashcroft, 341 F.3d 934, 937–38 (9th Cir.
2003) (noting court’s flexibility in applying the Lozada requirements, and holding
that failure to comply with third Lozada factor did not defeat ineffective assistance
of counsel claim given no suggestion of collusion between petitioners and
counsel); Rojas-Garcia v. Ashcroft, 339 F.3d 814, 825–26 (9th Cir. 2003) (failure
to file bar complaint not fatal where former counsel submitted letter of self-report
to bar); Melkonian v. Ashcroft, 320 F.3d 1061, 1072 (9th Cir. 2003); Rodriguez-
Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002) (substantial compliance
sufficient); Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124–25 (9th Cir. 2000)
(holding that the BIA may not impose the Lozada requirements arbitrarily);
Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000), amended by 213
F.3d 1221 (9th Cir. 2000) (order).

F. Cases Discussing Ineffective Assistance of Counsel

1. Cases Finding Ineffective Assistance

Sanchez Rosales v. Barr, 980 F.3d 716, 719–20 (9th Cir. 2020) (granting
petition and remanding to the BIA to evaluate Petitioners’ motion without
requiring a showing of prejudice where petitioners claimed that ineffective
assistance led to in absentia removal); Flores v. Barr, 930 F.3d 1082, 1087–90 (9th
Cir. 2019) (per curiam) (holding that although the BIA correctly concluded Flores
failed to show prejudice for several of his ineffective assistance of counsel claims,
the BIA abused its discretion in concluding Flores failed to show prejudice from
ineffective assistance with respect to petitioner’s claims for relief under former
§ 212(c) and deferral of removal under the CAT); Salazar-Gonzalez v. Lynch, 798
F.3d 917, 920–22 (9th Cir. 2015) (petitioner’s counsel performed deficiently and
petitioner suffered prejudice, as such petitioner was entitled to equitable tolling of
limitations period for filing a motion to reopen); United States v. Lopez-Chavez,
757 F.3d 1033, 1041–42 (9th Cir. 2014) (counsel’s concession that prior drug
conviction was an aggravated felony under the INA and the failure to appeal the
question to the Court of Appeals constituted deficient performance); Correa-
Rivera v. Holder, 706 F.3d 1128, 1131–34 (9th Cir. 2013) (concluding petitioner
suffered prejudice where the record was undisputed his lawyer failed to file his
application for cancellation of removal, and remanding to the BIA to allow
petitioner to file his application for relief); Santiago-Rodriguez v. Holder, 657 F.3d
820, 835–36 (9th Cir. 2011) (petitioner was prejudiced by counsel’s ineffective
assistance where counsel admitted to factual allegations without any factual basis

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for doing so); Nehad v. Mukasey, 535 F.3d 962, 967–72 (9th Cir. 2008) (pressuring
noncitizen to accept voluntary departure under threat of counsel’s withdrawal two
hours before hearing); Morales Apolinar v. Mukasey, 514 F.3d 893, 899 (9th Cir.
2008) (failure to introduce available documentary evidence, failure to elicit
testimony, and failure to establish petitioner’s mother as a qualifying relative for
the purpose of the hardship analysis); Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir.
2006) (failure to file a brief with the BIA on appeal, failure to file a petition for
review, and failure to meet procedural requirements of two motions to reopen);
Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005) (counsel’s performance was
ineffective and caused prejudice where she failed to present evidence of
petitioner’s past female genital mutilation); Hamoui v. Ashcroft, 389 F.3d 821, 826
(9th Cir. 2004) (failure to file motion to reopen to pursue claim under the
Convention Against Torture constituted constitutionally deficient performance);
Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004) (counsel’s failure to: investigate and
present the factual and legal basis of Lin’s asylum claim; attend the hearing in
person; advocate on his behalf at the hearing; and file brief on appeal, constituted
ineffective assistance of counsel); Siong v. INS, 376 F.3d 1030, 1037 (9th Cir.
2004) (“Failing to file a timely notice of appeal is obvious ineffective assistance of
counsel.”); Singh v. Ashcroft, 367 F.3d 1182 (9th Cir. 2004) (counsel’s failure to
file brief to BIA established ineffective assistance and caused prejudice where BIA
dismissed based on failure to file brief); Rojas-Garcia v. Ashcroft, 339 F.3d 814
(9th Cir. 2003) (failure to file brief on appeal to BIA constituted ineffective
assistance, but presumption of prejudice rebutted because petitioner had no
plausible grounds for relief); Monjaraz-Munoz v. INS, 327 F.3d 892 (9th Cir. 2003)
(advisements to return to Mexico in order to prove validity of visa, where
petitioner missed his hearing due to border detention upon attempted return,
constituted ineffective assistance and exceptional circumstances warranting
reopening), amended by 339 F.3d 1012 (9th Cir. 2003) (order); Iturribarria v. INS,
321 F.3d 889 (9th Cir. 2003) (counsel was ineffective, but petitioner could not
show prejudice); Rodriguez-Lariz v. INS, 282 F.3d 1218 (9th Cir. 2002) (non-
attorney provided ineffective assistance by failing to file a timely application for
relief while assuring petitioners he was diligently handling their case); Dearinger
ex rel. Volkova v. Reno, 232 F.3d 1042 (9th Cir. 2000) (counsel’s untimely petition
for review presented valid basis for ineffective assistance claim); Castillo-Perez v.
INS, 212 F.3d 518, 526 (9th Cir. 2000) (finding a “clear and obvious case of
ineffective assistance of counsel” where counsel “failed, without any reason, to
timely file [an] application” for relief even though petitioner was prima facie
eligible); Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir. 2000) (IJ denied
applicant her right to counsel when he allowed an attorney whom she had never

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met and who had no understanding of her case to represent her), amended by 213
F.3d 1221 (9th Cir. 2000); Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) (fraudulent
legal representation by notary posing as an attorney established a meritorious
ineffective assistance claim).

2. Cases Rejecting Ineffective Assistance of Counsel Claims

Flores v. Barr, 930 F.3d 1082, 1087–90 (9th Cir. 2019) (per curiam)
(holding that the BIA correctly concluded Flores failed to show prejudice for
several of his ineffective assistance of counsel claims, but also held that the BIA
abused its discretion in concluding Flores failed to show prejudice from ineffective
assistance with respect to petitioner’s claims for relief under former § 212(c) and
deferral of removal under the CAT); Guan v. Barr, 925 F.3d 1022, 1033 (9th Cir.
2019) (explaining that because petitioner failed to comply with the procedural
requirements of Lozada, he was entitled to relief only if “the ineffectiveness of
counsel was plain on its face” and determining that the record did not show
counsel performed deficiently); Al Ramahi v. Holder, 725 F.3d 1133, 1138–39 (9th
Cir. 2013) (petitioner failed to show that counsel’s advice was deficient); Kwong v.
Holder, 671 F.3d 872, 880–81 (9th Cir. 2011) (counsel’s performance was not
constitutionally deficient where counsel interrogated petitioner and presented
sufficient evidence in support of petitioner’s claim for withholding of removal to
permit the IJ to make a reasoned decision on the merits of that claim); Tamang v.
Holder, 598 F.3d 1083, 1090–91 (9th Cir. 2010) (failure to satisfy Lozada
requirements was fatal to petitioner’s IAC claim); Torres-Chavez v. Holder, 567
F.3d 1096, 1101 (9th Cir. 2009) (rejecting petitioner’s contention that he received
IAC where attorney conceded petitioner’s alienage and did not inform him about
the advantages of remaining silent); Balam-Chuc v. Mukasey, 547 F.3d 1044,
1050–51 (9th Cir. 2008) (where attorney failed to properly file a visa petition, the
Fifth Amendment did not apply because the deficiency did not relate to the
substance or fundamental fairness of an ongoing hearing); Granados-Oseguera v.
Mukasey, 546 F.3d 1011, 1016 (9th Cir. 2008) (per curiam) (on rehearing, the
court denied the petition for review concluding that even if there was IAC, there
was no prejudice resulting from the ineffective assistance due to statutory bar to
relief where petitioner overstayed voluntary departure period); Blanco v. Mukasey,
518 F.3d 714, 722 (9th Cir. 2008) (counsel’s actions did not deny petitioner his
right to full and fair hearing where record showed that counsel diligently examined
witnesses, argued points of law before IJ and informed petitioner of his right to
appeal, and even if performance was ineffective, petitioner failed to demonstrate
prejudice); Padilla-Padilla v. Gonzales, 463 F.3d 972, 975–76 (9th Cir. 2006)
(counsel’s erroneous advice regarding the retroactivity of the stop-time rule did not

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result in the deprivation of due process); Lara-Torres v. Ashcroft, 383 F.3d 968,
973 (9th Cir. 2004) (counsel’s “unfortunate immigration-law advice” was not
ineffective assistance because it did not “pertain to the actual substance of the
hearing” or “call the hearing’s fairness into question”), amended by 404 F.3d 1105
(9th Cir. 2005) (order); Azanor v. Ashcroft, 364 F.3d 1013, 1023 (9th Cir. 2004)
(rejecting claim because petitioner failed to comply with Lozada and counsel’s
actions did not cause prejudice because petitioner failed to inform counsel of
critical facts); Reyes v. Ashcroft, 358 F.3d 592, 597–98 (9th Cir. 2004) (rejecting
claim because petitioner failed to comply substantially with Lozada); Melkonian v.
Ashcroft, 320 F.3d 1061 (9th Cir. 2003) (rejecting claim based on single statement
of counsel during proceedings); Lata v. INS, 204 F.3d 1241 (9th Cir. 2000)
(petitioner failed to show prejudice); Ortiz v. INS, 179 F.3d 1148 (9th Cir. 1999)
(petitioner failed to show prejudice); Behbahani v. INS, 796 F.2d 249 (9th Cir.
1986) (finding no ineffective assistance by accredited representative); Ramirez-
Durazo v. INS, 794 F.2d 491, 500–01 (9th Cir. 1986) (no ineffective assistance or
prejudice); Magallanes-Damian v. INS, 783 F.2d 931 (9th Cir. 1986) (attorney’s
decision to forego contesting deportability was a tactical decision that did not rise
to the level of ineffective assistance).

Cross-reference: Due Process in Immigration Proceedings, Ineffective

Assistance of Counsel.

VIII. CASES ADDRESSING MOTIONS TO REOPEN FOR SPECIFIC

RELIEF

A. Motions to Reopen to Apply for Suspension of Deportation

INS v. Rios-Pineda, 471 U.S. 444 (1985) (Attorney General did not abuse
discretion in denying motion to reopen); INS v. Wang, 450 U.S. 139 (1981) (per
curiam) (BIA did not abuse discretion in denying motion to reopen).

Chete Juarez v. Ashcroft, 376 F.3d 944 (9th Cir. 2004) (petition granted);
Ordonez v. INS, 345 F.3d 777 (9th Cir. 2003) (petition granted); Iturribarria v.
INS, 321 F.3d 889 (9th Cir. 2003) (petition denied); Guzman v. INS, 318 F.3d 911
(9th Cir. 2003) (per curiam) (affirming denial of motion to reopen to apply for
suspension because “new” information regarding date of entry was available and
capable of discovery prior to deportation hearing); Rodriguez-Lariz v. INS, 282
F.3d 1218 (9th Cir. 2002) (reversed and remanded); Arrozal v. INS, 159 F.3d 429
(9th Cir. 1998) (reversed and remanded); Urbina-Osejo v. INS, 124 F.3d 1314,
1317 (9th Cir. 1997) (petition remanded); Sequeira-Solano v. INS, 104 F.3d 278

February 2021 C-58

(9th Cir. 1997) (petition denied); Watkins v. INS, 63 F.3d 844 (9th Cir. 1995)
(reversed and remanded); Limsico v. INS, 951 F.2d 210, 213 (9th Cir. 1991)
(petition denied); Gonzalez Batoon v. INS, 791 F.2d 681 (9th Cir. 1986) (en banc)
(discretionary denial of reopening was arbitrary); Vasquez v. INS, 767 F.2d 598
(9th Cir. 1985) (suspension and adjustment; petition denied); Saldana v. INS, 762
F.2d 824 (9th Cir. 1985) (reversed and remanded), amended by 785 F.2d 650 (9th
Cir. 1986) (order); Duran v. INS, 756 F.2d 1338 (9th Cir. 1985) (reversed and
remanded).

Cross-reference: Cancellation of Removal, Suspension of Deportation, and

Section 212(c) Relief.

B. Motions to Reopen to Apply for Asylum and Withholding

INS v. Doherty, 502 U.S. 314 (1992) (Attorney General did not abuse his
discretion by denying the motion to reopen); INS v. Abudu, 485 U.S. 94 (1988)
(BIA did not abuse its discretion by denying the motion to reopen).

Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016) (petition granted); Zhao
v. Holder, 728 F.3d 1144, 1145 (9th Cir. 2013) (petition granted); Ali v. Holder,
637 F.3d 1025 (9th Cir. 2011) (petition granted); Almaraz v. Holder, 608 F.3d 638
(9th Cir. 2010) (petition denied); Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir.
2010) (petition denied); Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010)
(petition denied); Lin v. Holder, 588 F.3d 981 (9th Cir. 2009) (petition denied);
Toufighi v. Mukasey, 538 F.3d 988, 996–97 (9th Cir. 2008) (petition denied); Chen
v. Mukasey, 524 F.3d 1028, 1031–34 (9th Cir. 2008) (petition denied); Bhasin v.
Gonzales, 423 F.3d 977, 989 (9th Cir. 2005) (petition granted); Mohammed v.
Gonzales, 400 F.3d 785 (9th Cir. 2005) (petition granted); Malty v. Ashcroft, 381
F.3d 942 (9th Cir. 2004) (petition granted); Lin v. Ashcroft, 377 F.3d 1014 (9th Cir.
2004) (petition granted); Siong v. INS, 376 F.3d 1030 (9th Cir. 2004) (petition
granted); Singh v. Ashcroft, 367 F.3d 1182 (9th Cir. 2004) (petition granted);
Azanor v. Ashcroft, 364 F.3d 1013 (9th Cir. 2004) (denying petition as to asylum
and withholding, granting as to CAT relief); Ma v. Ashcroft, 361 F.3d 553 (9th Cir.
2004) (petition granted); Cano-Merida v. INS, 311 F.3d 960 (9th Cir. 2002)
(granting petition for review of BIA’s denial of motion to reconsider based on due
process violation); Mejia v. Ashcroft, 298 F.3d 873 (9th Cir. 2002) (petition
granted); Konstantinova v. INS, 195 F.3d 528 (9th Cir. 1999) (petition denied);
Bolshakov v. INS, 133 F.3d 1279 (9th Cir. 1998) (petition denied); Lainez-Ortiz v.
INS, 96 F.3d 393 (9th Cir. 1996) (petition denied); Romero-Morales v. INS, 25
F.3d 125 (9th Cir. 1994) (petition granted); Chavez v. INS, 723 F.2d 1431 (9th Cir.

February 2021 C-59

1984) (petition denied); Rodriguez v. INS, 841 F.2d 865 (9th Cir. 1987) (reversed
and remanded); Ghadessi v. INS, 797 F.2d 804 (9th Cir. 1986) (petition granted);
Sakhavat v. INS, 796 F.2d 1201 (9th Cir. 1986) (reversed and remanded); Aviles-
Torres v. INS, 790 F.2d 1433 (9th Cir. 1986) (reversed and remanded); Larimi v.
INS, 782 F.2d 1494 (9th Cir. 1986) (petition denied); Maroufi v. INS, 772 F.2d 597
(9th Cir. 1985) (remanding on asylum claim); Sangabi v. INS, 763 F.2d 374 (9th
Cir. 1985) (petition denied); Samimi v. INS, 714 F.2d 992 (9th Cir. 1983)
(remanded).

Cross-reference: Asylum, Withholding and the Convention Against

Torture.

C. Motions to Reopen to Apply for Relief Under the Convention

Against Torture

“Denial of a motion to reopen to present a claim under the Convention

qualifies as a final order of removal,” over which this court has jurisdiction.
Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004) (petition granted).

See also Agonafer v. Sessions, 859 F.3d 1198, 1203–04 (9th Cir. 2017)
(“The changed country conditions exception likewise applies to motions to reopen
to assert CAT claims.”) (petition granted); Go v. Holder, 744 F.3d 604, 609 (9th
Cir. 2014) (regulations governing motions to reopen filed with the BIA apply to
motion that arise under the Convention Against Torture); Oyeniran v. Holder, 672
F.3d 800, 808–09 (9th Cir. 2012) (BIA abused discretion by rejecting new
evidence relevant to whether petitioner eligible for deferral of removal under
CAT); Williams v. Mukasey, 531 F.3d 1040, 1042–43 (9th Cir. 2008) (publication
of CAT regulations in Federal Register provided adequate notice of June 21, 1999
deadline to file motion to reopen based on CAT claim of applicant subject to pre-
March 22, 1999 removal order); Huang v. Ashcroft, 390 F.3d 1118 (9th Cir. 2004)
(motions to reopen to apply for withholding or deferral of removal under CAT are
both subject to the time limitations set forth in 8 C.F.R. § 208.18(b)(2)); Azanor v.
Ashcroft, 364 F.3d 1013 (9th Cir. 2004) (granting petition as to CAT relief and
remanding for evaluation under correct legal standard); Vukmirovic v. Ashcroft,
362 F.3d 1247, 1253 (9th Cir. 2004) (IJ abused his discretion in failing to address
motion to reopen to apply for CAT relief); Abassi v. INS, 305 F.3d 1028 (9th Cir.
2002) (petition granted in part); Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001)
(vacated and remanded); Khourassany v. INS, 208 F.3d 1096 (9th Cir. 2000)
(motion to remand denied); Cano-Merida v. INS, 311 F.3d 960 (9th Cir. 2002)
(petition denied as to motion to reopen to apply for CAT relief).

February 2021 C-60

 Cross-reference: Asylum, Withholding and the Convention Against
Torture.

D. Motions to Reopen to Apply for Adjustment of Status

“[T]he Board of Immigration Appeals has authority to reopen proceedings of

an alien who is under a final order of removal in order to afford the alien an
opportunity to pursue an adjustment of status application before United States
Citizenship and Immigration Services.” Singh v. Holder, 771 F.3d 647, 649 (9th
Cir. 2014). “Generally, a motion to reopen for adjustment of status will not be
granted on the basis of a marriage entered into during deportation proceedings
unless the petitioner qualifies for the bona fide marriage exception.” Yepremyan v.
Holder, 614 F.3d 1042, 1044 (9th Cir. 2010) (per curiam) (citing 8 U.S.C. 1255(e))
(denying petition where BIA acted within its discretion in denying motion to
reopen where petitioner failed to prove her marriage to be bona fide by clear and
convincing evidence).

See also Bonilla v. Lynch, 840 F.3d 575, 583–84 (9th Cir. 2016) (denying
Bonilla’s petition for review as to the motion to reopen for adjustment of status);
Avagyan v. Holder, 646 F.3d 672, 681–82 (9th Cir. 2011) (BIA abused its
discretion in denying as untimely motion to reopen on grounds on IAC in applying
for adjustment of status); Malilia v. Holder, 632 F.3d 598 (9th Cir. 2011) (petition
granted where petitioner entitled to continuance to allow agency an opportunity to
adjudicate pending application for adjustment of status); Sharma v. Holder, 633
F.3d 865 (9th Cir. 2011) (petition denied where evidence insufficient to show bona
fide marriage); Ocampo v. Holder, 629 F.3d 923, 928 (9th Cir. 2010) (motion to
reopen to apply for adjustment of status denied as untimely); Alali-Amin v.
Mukasey, 523 F.3d 1039, 1041–42 (9th Cir. 2008) (petition denied as untimely);
Kalilu v. Mukasey, 548 F.3d 1215, 1217–18 (9th Cir. 2008) (per curiam)
(remanding “for an exercise of the agency’s discretion that takes into consideration
the factors set forth in [Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA
2002)]”); Ochoa-Amaya v. Gonzales, 479 F.3d 989 (9th Cir. 2007) (petitioner did
not qualify as child under Child Status Protection Act because he turned 21 before
visa petition approved by INS; petition denied); Medina-Morales v. Ashcroft, 371
F.3d 520 (9th Cir. 2004) (petition granted, holding that BIA erred in considering
the strength of the stepparent-stepchild relationship); de Martinez v. Ashcroft, 374
F.3d 759 (9th Cir. 2004) (petition denied); Manjiyani v. Ashcroft, 343 F.3d 1018
(9th Cir. 2003) (order) (petition remanded); Malhi v. INS, 336 F.3d 989 (9th Cir.
2003) (affirming BIA’s denial of motion to remand to apply for adjustment of
status based on marriage that occurred during deportation proceedings); Zazueta-

February 2021 C-61

Carrillo v. INS, 322 F.3d 1166 (9th Cir. 2003) (remanding BIA’s denial of motion
to reopen to apply for adjustment of status based on petitioner’s failure to depart
voluntarily); Castillo Ison v. INS, 308 F.3d 1036 (9th Cir. 2002) (per curiam)
(adjustment of status and immigrant visa; petition granted); Abassi v. INS, 305 F.3d
1028, 1032 (9th Cir. 2002) (court lacks jurisdiction to review BIA’s refusal sua
sponte to reopen proceedings to allow applicant to apply for adjustment of status);
Konstantinova v. INS, 195 F.3d 528 (9th Cir. 1999) (reversing and remanding
denial of motion to remand to adjust status); Eide-Kahayon v. INS, 86 F.3d 147
(9th Cir. 1996) (per curiam) (petition denied); Caruncho v. INS, 68 F.3d 356 (9th
Cir. 1995) (petition denied); Dielmann v. INS, 34 F.3d 851 (9th Cir. 1994) (petition
denied); Ng v. INS, 804 F.2d 534 (9th Cir. 1986) (reversed and remanded); Israel v.
INS, 785 F.2d 738 (9th Cir. 1986) (petition granted); Mattis v. INS, 774 F.2d 965
(9th Cir. 1985) (adjustment and waiver of excludability; reversed and remanded);
Vasquez v. INS, 767 F.2d 598 (9th Cir. 1985) (suspension and adjustment; petition
denied); Ahwazi v. INS, 751 F.2d 1120 (9th Cir. 1985) (consolidated petitions
denied).

E. Motion to Reopen Reasonable Fear Proceeding

“No statute or regulation specifically addresses whether an alien may file a

motion to reopen reasonable fear proceedings. However, in Ayala v. Sessions,
[855 F.3d 1012, 1020–21 (9th Cir. 2017), the court] concluded that the IJ abused
its discretion in not reconsidering the petitioner’s motion for reconsideration of
such proceedings.” Bartolome v. Sessions, 904 F.3d 803, 815 (9th Cir. 2018). The
court in Bartolome explained that nothing in the regulation precludes a noncitizen
from filing a motion to reopen before an IJ, and that “ § 1003.23(b)(1) provides
that an IJ has sua sponte jurisdiction to reopen ‘any case in which he or she has
made a decision.’” Bartolome, 904 F.3d at 815. See also Ayala, 855 F.3d at 1020–
21 (concluding IJ abused his discretion in denying Ayala’s motion to reopen and
reconsider where there was legal error in his previous decision affirming the
negative reasonable fear determination).

F. Motions to Reopen to Apply for Other Relief

Sanchez Rosales v. Barr, 980 F.3d 716, 719–20 (9th Cir. 2020) (granting
petition and remanding to the BIA to evaluate petitioners’ motion to reopen to
rescind petitioners’ in absentia removal order); Martinez v. Barr, 941 F.3d 907,
922 (9th Cir. 2019) (motion to reopen removal proceedings after IJ issued an in
absentia removal order); Man v. Barr, 940 F.3d 1354, 1355–58 (9th Cir. 2019)
(per curiam) (motions to reopen to consider U visa); Cruz Pleitez v. Barr, 938 F.3d

February 2021 C-62

1141, 1143 (9th Cir. 2019) (motion to reopen seeking to rescind the deportation
order entered in absentia); Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018)
(motion to reopen to rescind a removal order entered in absentia); Mejia-
Hernandez v. Holder, 633 F.3d 818, 824–27 (9th Cir. 2011) (time period for filing
motion to reopen for NACARA relief equitably tolled due to fraudulent
representation, and case remanded to BIA); Navarro v. Mukasey, 518 F.3d 729
(9th Cir. 2008) (motion to reopen on the basis that they qualified for benefits under
the Barahona-Gomez v. Ashcroft, 243 F. Supp. 2d 1029 (N.D. Cal. 2002) class
action settlement; petition granted); Avila-Sanchez v. Mukasey, 509 F.3d 1037 (9th
Cir. 2007) (motion to reopen to obtain waiver of inadmissibility; petition denied);
Pedroza-Padilla v. Gonzales, 486 F.3d 1362 (9th Cir. 2007) (legalization, waiver
of inadmissibility (212(a)(9)(A)(ii)(II)), continuous residence; petition denied);
Albillo-De Leon v. Gonzales, 410 F.3d 1090 (9th Cir. 2005) (NACARA § 203(c)
special rule cancellation; petition granted); Taniguchi v. Schultz, 303 F.3d 950 (9th
Cir. 2002) (holding that petitioner failed to exhaust equitable tolling argument);
Virk v. INS, 295 F.3d 1055 (9th Cir. 2002) (section 241(f) waiver; petition
granted); Briseno v. INS, 192 F.3d 1320 (9th Cir. 1999) (court lacks jurisdiction to
review denial of aggravated felon’s motion to reopen to apply for former § 212(c)
relief); Martinez-Serrano v. INS, 94 F.3d 1256 (9th Cir. 1996) (motion to reopen to
request a humanitarian waiver; petition denied); Alquisalas v. INS, 61 F.3d 722
(9th Cir. 1995) (waiver of deportation; remanded); Foroughi v. INS, 60 F.3d 570
(9th Cir. 1995) (former § 212(c) relief; petition granted); Butros v. INS, 990 F.2d
1142 (9th Cir. 1993) (former § 212(c) relief; petition granted); Torres-Hernandez
v. INS, 812 F.2d 1262 (9th Cir. 1987) (former § 212(c) relief; petition denied);
Platero-Reymundo v. INS, 807 F.2d 865 (9th Cir. 1987) (reinstatement of voluntary
departure; petition denied); Desting-Estime v. INS, 804 F.2d 1439 (9th Cir. 1986)
(to redesignate country of deportation; petition denied); Williams v. INS, 795 F.2d
738 (9th Cir. 1986) (reinstatement of voluntary departure; finding no abuse of
discretion); Mattis v. INS, 774 F.2d 965 (9th Cir. 1985) (adjustment and waiver of
excludability; reversed and remanded); Avila-Murrieta v. INS, 762 F.2d 733 (9th
Cir. 1985) (former § 212(c) relief; petition denied).

February 2021 C-63