Jie Ma v. Loretta E. Lynch
668 F. App'x 275
| 9th Cir. | 2016Background
- Jie Ma applied for asylum in 2001, claiming persecution in China for practicing Zhong Gong (similar to Falun Gong).
- Ma failed to appear at his 2002 asylum hearing; an immigration judge (IJ) held an in absentia hearing and ordered his removal to China.
- Over eight years later Ma moved to reopen, arguing (1) lack of notice of a changed hearing date and (2) eligibility to reapply for asylum based on changed country conditions after his 2008 voluntary return to China.
- The IJ denied the motion; the Board of Immigration Appeals (BIA) affirmed the denial.
- The Ninth Circuit reviewed the BIA’s discretionary denials: it upheld the denial of reopening for lack of notice but found error in the BIA’s treatment of the motion to reopen based on changed country conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused discretion by denying reopening of in absentia removal for lack of notice | Ma: Notice was insufficient because he did not receive notice of the changed hearing date | Govt: Notice was proper; hearing notice was mailed to Ma’s last provided address, creating a presumption of delivery | Denied: BIA did not abuse discretion; mailing to last address satisfied notice and Ma did not rebut presumption of delivery |
| Whether the BIA abused discretion by denying reopening to reapply for asylum based on changed country conditions | Ma: After returning to China in 2008, authorities targeted him and his family; this supports reopening without additional corroborating affidavits | Govt: BIA faulted lack of corroborating affidavits from family in China to corroborate his 2009 allegations | Granted in part: BIA abused discretion by requiring corroborating affidavits at motion-to-reopen stage; must accept Ma’s allegations as true unless inherently unbelievable; remanded for further consideration |
Key Cases Cited
- Popa v. Holder, 571 F.3d 890 (9th Cir. 2009) (mailing notice to the alien’s last provided address satisfies hearing notice requirements)
- Sembiring v. Gonzales, 499 F.3d 981 (9th Cir. 2007) (presumption of proper delivery of mailed notice can be rebutted with sufficient evidence)
- Yang v. Lynch, 822 F.3d 504 (9th Cir. 2016) (at motion-to-reopen stage, allegations must be accepted as true unless inherently unbelievable)
- Tadevosyan v. Holder, 743 F.3d 1250 (9th Cir. 2014) (same principle: do not require corroboration at motion-to-reopen absent reasons to disbelieve)
- Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005) (motions to reopen should generally credit the movant’s affidavits unless inherently implausible)
- Malty v. Ashcroft, 381 F.3d 942 (9th Cir. 2004) (BIA abused discretion when it faulted the movant for not submitting corroborating affidavits beyond his own sworn declaration)