27 F.4th 263
4th Cir.2022Background:
- Garcia Hernandez, a Honduran national, entered the U.S. without inspection in 2005 and faced removal proceedings beginning May 2018.
- He conceded removability and applied for asylum, withholding, and CAT relief; the IJ denied asylum as untimely under 8 U.S.C. § 1158(a)(2)(B) but granted withholding in August 2018.
- On October 9, 2018 (within 90 days of the final order), he moved to reopen based on new evidence: the September 1, 2018 murder of his brother by a rival family, arguing this was a changed circumstance excusing the one-year filing deadline under the court’s framework in Zambrano v. Sessions.
- The IJ denied reopening, treating the murder as part of a long-standing pattern and concluding Zambrano did not apply because the changed event occurred after his initial asylum filing and adjudication.
- The BIA affirmed in a single-member decision but applied the standard for motions based on changed country conditions (8 C.F.R. § 1003.23(b)(4)) rather than the 90-day motion-to-reopen standard (§ 1003.23(b)(3)); it also concluded Zambrano was inapplicable when the change occurred after an application was filed and adjudicated.
- The Fourth Circuit held the BIA abused its discretion by applying the wrong regulatory standard, instructed the BIA to evaluate the timely motion under § 1003.23(b)(3), and directed the BIA to analyze the asylum timeliness issue under Zambrano’s framework on remand.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper standard for motion to reopen | Motion filed within 90 days; §1003.23(b)(3) applies (need show material evidence not previously available) | BIA applied §1003.23(b)(4) (changed country conditions exception) | Court: BIA erred; timely motion must be evaluated under §1003.23(b)(3); BIA abused discretion by using (b)(4) and failing to explain (b)(3) analysis |
| Applicability of Zambrano changed-circumstances exception | Zambrano permits new instances or intensification of prior persecution to excuse one-year deadline even if change occurred after prior filing/adjudication | BIA: Zambrano limited to changed conditions arising before filing a time-barred petition | Court: Nothing in Zambrano limits its framework that way; BIA should apply Zambrano on remand to assess materiality |
Key Cases Cited
- Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017) (new or intensified instances of prior persecution can satisfy changed-circumstances exception to one-year asylum deadline)
- Sadhavani v. Holder, 596 F.3d 180 (4th Cir. 2010) (standard of review for motions to reopen)
- Hussain v. Gonzales, 477 F.3d 153 (4th Cir. 2007) (BIA abuses discretion when it fails to provide a reasoned explanation)
- Salgado-Sosa v. Sessions, 882 F.3d 451 (4th Cir. 2018) (jurisdictional principles and standard of review for legal questions in immigration appeals)