Mario Fonseca-Fonseca v. Merrick Garland
76 F.4th 1176
9th Cir.2023Background
- Mario Fonseca-Fonseca, a Mexican national who entered the U.S. in 1994, received a Notice to Appear (NTA) in 2013 that did not list time/place.
- He initially withdrew his cancellation-of-removal application because he thought he lacked the required 10 years of continuous physical presence; he later pursued asylum/withholding/CAT, which the IJ denied.
- On appeal to the BIA he relied on Pereira v. Sessions to argue the defective NTA did not stop accrual of continuous presence for cancellation; the BIA rejected his jurisdictional argument and dismissed the appeal.
- Fonseca-Fonseca moved to reopen to seek cancellation of removal, asserting he now met the continuous-presence requirement under Pereira and could satisfy other statutory elements, but he offered no new hardship evidence.
- The BIA acknowledged he likely met continuous presence but denied the motion for failing to establish prima facie eligibility, applying a Coelho-derived “would likely change” standard.
- The Ninth Circuit held the BIA applied the wrong, more stringent standard for prima facie review and remanded for reconsideration under the correct “reasonable likelihood” standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard for prima facie eligibility in a motion to reopen | L-O-G-: only must show a "reasonable likelihood" of prevailing on the merits if reopened | Coelho: petitioner must show new evidence "would likely change" the result (heavier burden) | The court holds L-O-G-’s "reasonable likelihood" standard applies to prima facie determinations; "would likely change" applies to discretionary denials |
| Whether BIA applied correct standard to Fonseca-Fonseca’s motion to reopen | Fonseca-Fonseca argued the BIA used the wrong (too strict) standard and thus erred | Government defended BIA’s use of the heavier Coelho standard | Court finds the BIA erred by applying the "would likely change" standard and remands for adjudication under the "reasonable likelihood" standard |
Key Cases Cited
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (defective NTA that omits time/place does not stop accrual of continuous physical presence)
- INS v. Abudu, 485 U.S. 94 (1988) (BIA may deny reopening on discretionary grounds)
- INS v. Doherty, 502 U.S. 314 (1992) (grounds on which BIA may deny reopening)
- Ordonez v. INS, 345 F.3d 777 (9th Cir. 2003) (prior Ninth Circuit citation applying reasonable-likelihood language)
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004) (reasonable-likelihood standard governs prima facie showing on reopening)
- Kaur v. Garland, 2 F.4th 823 (9th Cir. 2021) (distinguishing reasonable-likelihood from more-likely-than-not standards)
- Boyde v. California, 494 U.S. 370 (1990) (discussion of reasonable-likelihood concept)