26 I. & N. Dec. 161
BIA2013Background
- Respondent is a Chinese citizen who arrived in the United States in 1999 and was ordered removed in absentia in 1999.
- He sought reopening in 2008 to rescind the in absentia order and to raise changed country conditions.
- A 2008 IJ decision denied reopening; the respondent did not appeal that denial.
- In 2011 the respondent filed a second motion to reopen seeking asylum and withholding based on changed country conditions in China, and equitable tolling arguments.
- The IJ denied as time and number barred; the BIA on appeal remanded for reconsideration consistent with changed country-conditions reopening and regulatory waivers.
- The Board held that rescission of the in absentia order is not a prerequisite to reopening for asylum based on changed country conditions and that the numerical limits do not apply to such motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether rescission of an in absentia order is required to reopen for changed conditions | J-G- argues rescission is unnecessary | DHS argues rescission may be required | No rescission required |
| Whether numerical limits apply to the changed-conditions reopening | J-G- contends limits do not apply | DHS contends limits apply | Numerical limits do not apply for changed-country-conditions asylum reopening |
| Whether the motion to reopen was properly considered on remand for merits | Record shows material, unavailable evidence; prima facie eligibility | IJ did not reach merits due to procedural bars | Remand Appropriate for merits evaluation of changed conditions evidence |
Key Cases Cited
- Matter of M-S-, 22 I&N Dec. 349 (BIA 1998) (reopening without rescission of in absentia order in deportation context)
- Matter of A-N- & R-M-N-, 22 I&N Dec. 953 (BIA 1999) (exposure of exclusion proceedings where changed conditions permit asylum relief without rescission)
- INS v. Doherty, 502 U.S. 314 (U.S. 1992) (heavy burden to show material evidence supports relief where discretionary)
- INS v. Abudu, 485 U.S. 94 (U.S. 1988) (prima facie eligibility and materiality requirements for reopening)
- Kungys v. United States, 485 U.S. 759 (U.S. 1988) (avoid rendering related provisions surplusage; interpret statute cohesively)
- Matter of Coelho, 20 I&N Dec. 464 (BIA 1992) (establishes materiality and prima facie showing for reopening)
- Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (treats related reconsideration standards)