Background
The petitioner sought cancellation of removal, asylum, withholding of removal, and relief under the Convention Against Torture. The Board of Immigration Appeals denied his motion to reopen based on a failure to establish prima facie eligibility, applying a heavy burden of proof that new evidence would likely change the result.
The court’s reasoning
The court found that the Board erred by applying the wrong standard. To establish prima facie eligibility, a petitioner needs only a reasonable likelihood of prevailing on the merits, not a showing that new evidence would likely change the result. Because the Board’s error went to the standard guiding the inquiry, the harmless error doctrine did not apply, and remand was required.
The BIA can deny a motion to reopen on any one of at least three independent grounds—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)
The dissent
I would deny the petition because that error was harmless and the BIA did not otherwise abuse its discretion in denying the motion to reopen.
Bade
What it means going forward
The decision requires immigration courts and the Board to apply the reasonable likelihood standard when evaluating prima facie eligibility for motions to reopen, rather than the more demanding standard of whether evidence would likely change the result.