973 F.3d 15
1st Cir.2020Background
- Rafael Emilio Franjul‑Soto, a Dominican national who entered without inspection in 1988, was served an NTA on April 4, 2016 that omitted the initial hearing date/time; a separate Notice of Hearing later provided the date.
- The IJ sustained removability under 8 U.S.C. § 1182(a)(6)(A)(i) and denied cancellation; Franjul‑Soto appealed to the BIA.
- While the BIA appeal was pending, Franjul‑Soto filed a VAWA Form I‑360 self‑petition (March 2017) claiming spousal battery/extreme cruelty.
- The BIA dismissed the appeal (Feb. 16, 2018); Franjul‑Soto then moved to reopen the removal proceedings based on the pending VAWA self‑petition.
- The BIA denied the motion to reopen (Oct. 19, 2018) for failure to make a prima facie showing of VAWA eligibility, denied reconsideration (July 26, 2019), and Franjul‑Soto petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of date/time in NTA deprives IJ of jurisdiction | NTA omission deprived court of jurisdiction; removal order should be vacated | Precedent holds omission does not divest immigration court of jurisdiction; address was given and separate hearing notice issued | Dismissal denied; omission does not strip IJ jurisdiction (followed circuit precedent) |
| Whether BIA may require a prima facie showing for a motion to reopen predicated on a pending VAWA self‑petition | For VAWA‑based motions, timely filing alone suffices under 8 U.S.C. § 1229a(c)(7)(C)(iv); no prima facie requirement should apply | §1229a(c)(7)(C)(iv) removes timeliness limits only; it does not eliminate the prima facie requirement for reopening | BIA may require a prima facie showing even when motion is based on a pending VAWA self‑petition |
| Whether the prima facie requirement is legally grounded | BIA lacks authority to impose prima facie threshold for VAWA motions | §1229a(c)(7)(B) requires motions to be supported by evidence; regulations and precedent authorize a prima facie threshold | Prima facie requirement is supported by statute, regulations, and precedent (no exception for VAWA motions) |
| Whether BIA abused discretion in finding petitioner failed to make prima facie case / credibility finding | Petitioner’s affidavit describing abuse sufficed to show prima facie eligibility | Affidavit was general, lacked dates/details and corroboration; BIA did not make an adverse credibility finding but found evidence insufficient | No abuse of discretion: affidavit alone, given its generality and lack of corroboration, did not establish a prima facie case; no adverse credibility finding was made |
Key Cases Cited
- United States v. Mendoza, 963 F.3d 158 (1st Cir. 2020) (rejected jurisdictional challenge based on omission of hearing date/time in NTA)
- Goncalves Pontes v. Barr, 938 F.3d 1 (1st Cir. 2019) (same principle on NTA defects and jurisdiction)
- In re Montreal Me. & Atl. Ry., Ltd., 953 F.3d 29 (1st Cir. 2020) (panels constrained by prior panel decisions)
- Carter v. INS, 90 F.3d 14 (1st Cir. 1996) (BIA may require prima facie showing on motions to reopen)
- INS v. Abudu, 485 U.S. 94 (1988) (standards for motions to reopen)
- Smith v. Holder, 627 F.3d 427 (1st Cir. 2010) (prima facie standard requires reasonable likelihood of success)
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004) (prima facie standard framed as a realistic chance of success)