971 F.3d 1085
9th Cir.2020Background
- Petitioner Tajaddin Aliyev, an Azerbaijani national, entered the U.S. in 2003 and filed for asylum in 2004; an immigration judge denied relief and the BIA affirmed.
- Aliyev filed a first motion to reopen in 2015, which the BIA denied.
- In 2018 Aliyev filed a second motion to reopen based on changed country conditions in Azerbaijan and attached his original 2004 asylum application plus new evidence.
- The BIA denied the second motion under 8 C.F.R. § 1003.2(c)(1), reasoning Aliyev failed to attach a new asylum application (the BIA read “appropriate application for relief” to require a new form).
- The Ninth Circuit held the BIA abused its discretion because the regulation does not require a new, duplicate application when the movant seeks to reopen the same previously filed claim and has attached that original application.
- The Ninth Circuit granted the petition and remanded the case to the agency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a motion to reopen “for the purpose of submitting an application for relief” requires attaching a new application when the movant seeks to reopen the original claim | Aliyev: attaching his 2004 asylum application (the same claim) satisfied the regulation’s requirement to attach the “appropriate application for relief” | BIA/Barr: the regulation requires submitting a new asylum application with the motion to reopen | Court: “appropriate” means suitable or proper; attaching the prior, relevant application is sufficient; BIA abused its discretion |
| Whether precedent supports the BIA’s stricter reading of §1003.2(c)(1) | Aliyev: cited cases are distinguishable (they involved no application attached or a new form of relief) | BIA: relied on precedents and unpublished dispositions to justify denial | Court: prior published cases involved different circumstances; unpublished dispositions are not precedential; government offered no textual defense |
Key Cases Cited
- Salim v. Lynch, 831 F.3d 1133 (9th Cir. 2016) (standard of review: abuse of discretion for BIA denial of motion to reopen)
- United States v. Bibbins, 637 F.3d 1087 (9th Cir. 2011) (use ordinary meaning of undefined regulatory terms)
- Gen Lin v. Attorney General, 700 F.3d 683 (3d Cir. 2012) (upheld BIA where petitioner attached no application at all)
- Young Sun Shin v. Mukasey, 547 F.3d 1019 (9th Cir. 2008) (motion to reopen seeking different relief requires new application)
- Palma-Mazariegos v. Keisler, 504 F.3d 144 (1st Cir. 2007) (same: new form of relief requires new application)
- Waggoner v. Gonzales, 488 F.3d 632 (5th Cir. 2007) (same principle)
- Konstantinova v. INS, 195 F.3d 528 (9th Cir. 1999) (BIA abused discretion under predecessor rule by rejecting unopposed motion to remand)
- Lin Xing Jiang v. Holder, 639 F.3d 751 (7th Cir. 2011) (suggested failure to follow §1003.2 where asylum claim raised a new ground)