Jose Leandro Lainez-Ortiz v. Immigration and Naturalization Service

139, 143, 101 (9th Cir.1987), 67 L.Ed.2d whеre we held F.2d 1419 (1981), adopting a the held that the BIA its discretion Court BIA abused per require con- se rule that evidentiary eliminated need to can or other affidavits upon separation hardship to a child particular sider supporting material facts Id. parent. alien at 1426. deported from a hardship in determining claimed to constitute hearing whether to hold a on an alien’s mo Cerrillo-Perez, BIA declined to con- reopen. evidentiary tion to A similar re hardship pre- based on the separation sider quirement is in a permissible case such as sumption young that children would accom- present one. Such tends reversed, deported parents. We pany their reduce, although perhaps entirely not per se exclusion a rele- explaining that “a eliminate, speculation that the claim of hard vant not consistent the BIA’s factor is resulting ship family separation from occa responsibility determine both to extreme by deportation being merely sioned is made hardship experience, on individual based reasonable, purposes litigation. It is express reach and considered conclu- an therefore, (internal require BIA to sion.” original) such a omitted). proof deportable parents case quotations citations that will fact separate from citizen children. their methodology sep- attributing The BIA’s parental not de- hardship evidentiary aration choice The Perezes did not meet this in this and portation, articulated other bearing upon burden. evidence see, (BIA e.g., Ige, Int. Dec. Matter separate intent was Tifferet Perez’s testi- per 1994), se applied rule. If just such a mony that and her husband had not she consistently, eliminate the need for it would they eventually considered whether would hardship into the the BIA ever factor presented leave Avi The Perezes no behind. equation those difficulties associated with arrangements evidence of for Avi’s care always family paren- It would separation. be circumstances, their absence. In these choice, causing deportation, tal the hard- not properly BIA that determined Perezes ship. separate, failed establish an intent obvi- hardship claim of element of Nevertheless, agree with the family resulting from separation due to de- presented BIA have not that the Perezes portation. supрort their claim of sufficient evidence to Review hardship potential extreme based on DENIED. family.

separation Although not of their here, expressly by the

mentioned BIA has held a claim

other eases the family separation hardship will based necessarily “significant accorded

not be weight” easily “can the claim because LAINEZ- Jose Leandro purposes litigation” and “most made Petitioner, ORTIZ, carry alleged parents out Ige, Matter reality.” plan Int. Dec. Therefore, requires the BIA “at a 3230. AND IMMIGRATION minimum, the parents an affidavit from SERVICE, NATURALIZATION stating intention that it is their Respondent. country, accompanied child remain in this No. 94-70214. demonstrating that for the care provisions will be made child’s Appeals, United Court States Id. BIA’s support.” statement Circuit. Ninth legit was insufficient evidence of Argued Oct. and Submitted arrangements for Avi’s in this imate care Sept. Decided country apparently a reference to this evidentiary requirement. evidentiary require-

We hold this is a valid Wang, Jong Ha In INS v.

ment.

SCHWARZER, Judge: Senior District petitions Jose Leandro Lainez-Ortiz for review of the decision of the Board of Immi- (“BIA”). gration Appeals The BIA dis- appeal missed Immi- Lainez-Ortiz’s of the gration Judge’s ruling finding deportable him and denied his motion to to file an asylum. for Lainez-Ortiz challenges ground the BIA’s decision on the denial of his motion to depоrtation proceeding political for asylum was an abuse of discretion. We have jurisdiction deny under 8 U.S.C. 1105a and petition for review.

BACKGROUND 32-year-old Petitioner is a citizen of Hon- duras. He claims that he fled Honduras in July fear for Sep- his life on 1990. On tember he entered the United States inspection. Immigration without and immediately Naturalization Service issued an why Order to Show Cause he should not be 241(a)(2) deported under Section of the Im- migration Nationality (“INA”), and Act 1251(a)(2). U.S.C. appeared He before the ‍‌​​​‌​‌‌​​​​‌‌​‌‌‌‌​​‌‌‌​‌​‌​​​​​​‌​​​​‌​‌‌‌‌‌​‌‍(“IJ”) Immigration Judge September requested and time to consult with an attorney. later, Three wеeks at his next deportation hearing, he still had not consult- attorney. ed with During this second deportation hearing, explained peti- the IJ right tioner he had the explicitly and asked him whether he Geyman J. Matthew and Matthew R. Har- had returning reason to fear to Hondu- ris, Heller, Ehrman, McAuliffe, White & Se- ras and apply- whether he was interested attle, Washington, petitioner. asylum. Petitioner indicated that he Mullane, returning David had no fear of Hugh V. Bernal and and that he did Attor- neys, Immigration asylum. wish to file for and The IJ found Naturalization Ser- vice, Department Justice, tioner deportable to be Washington, and ordered him DC, deported respondent. Honduras. appealed

Petitioner Deporta- the Order of later, 26,1990, tion. Six weeks on November appeal while the pending before the BIA, petitioner filed a motion to proceedings and with- TROTT, Before: 208(a) REINHARDT and holding under sections Judges, SCHWARZER,* 243(h) Circuit INA, 1158(a) Senior 8 U.S.C. Judge. 1253(h). District He submitted an affidavit in * Schwarzer, Honorable W William sitting designation. Senior District Judge California, for the Northern District of that motions motion, setting the facts admonition forth support of the (citing proceedings are disfavored. claim of supporting 107-08, persecution alleged government Petitioner (1988)). at 913-14 political activities upon his based Honduras he he feared and stated that opinions regulations at issue this case The upon escape persecution be unable 3.2 states unambiguous. Section clear and Honduras. returning to reopen ... shall not be “motions to that that appears it to the Board granted unless 1994, 7, BIA dismissed February On ... was not sought to be offered evidence his motion to and denied appeal petitioner’s discovered and could not have been available stated, part, that “a in relevant reopen. It hearing....” 8 presented at the former or proceed- reopen deportation seeking to party (1991) added). (emphasis Sec- 3.2 C.F.R. party facts that the new ings must state 3.8(a) that “motions to states establish, by affidavits supported intends proved....” new facts to be shall state the C.F.R. evidentiary material. 8 or other 3.8(a)(1991). addition, In section 8 C.F.R. 3.8_” appeals the 3.2; now §§ Petitioner 208.4(b)(3) where, here, that as an reopen. motion to denial of his comple- asylum is made after initial claim for applica- deportation proceedings, an tion of DISCUSSION conjunction a ... tion “shall befiled of a motion the denial We review reopen pursuant ... to 8 C.F.R. motion to v. Do abuse of discretion. reopen for 8 applicable.” C.F.R. 8.2 and 8.8 719, 323, 314, 724- 112 herty, 502 U.S. (1991) 208.4(b)(3) Sec- Abudu, (1992); 25, INS v. L.Ed.2d 823 208.4(b)(4) adds the further 912, 904, an claim motions to that (1988). ruling will not The BIA’s L.Ed.2d reasonably explain the failure to re- “must arbitrarily, irra it acted disturbed unless ... completion of the asylum prior to quest contrary law. Israel tionally, to the or proceedings.” 8 C.F.R. Cir.1986) (9th (citing INS, 208.4(b)(4) (1991). Cir. Sangabi v. pe- dissenting colleague argues that a Our 1985)). reopen in order to moves to titioner who BIA abused claims that the Petitioner offer claim need press an summarily dismissing his discretion its explanation for his failurе deportation proceedings reopen the motion to (thus timely sat- asylum in a fashion request asylum. He con apply for allow him to 208.4(b)(4)) not also offer isfying § and need “reasonably explained” his fail tends that he 3.2). (as required by He reasons facts new completion request before ure to always a offering that new facts required proceedings as of the failing to raise (1991). He also contends sat- Requiring claim earlier. support of his submitted evidence 208.4(b)(4) §make isfy § 3.2 therefore would unavailable, ma “previously claim constitutes result nullity. suggests we avoid this He §§ under 8 C.F.R. terial evidenсe” drop regulations to by construing the (1991) case and established motions to requirement for new facts asylum claims. to raise initial liberty perform not at We are discretion BIA has considerable The Al- regulations. major surgery on the BIA’s reopen. concerning motions to overlap degree of Here, though may be a 112 S.Ct. at 724-25. U.S. at and the the “new facts” between petitioner’s motion its denial of based (failure requirement, one explanation” “reasonable 3.2 and 3.8 reopen on 8 C.F.R. petitioner, facts). of cases where can conceive question before us is state new him, back evi- holds best known or acted reasons discretion it abused its whether hearing for available reaching our deci dence contrary law. In necessary. if The existence later use sion, Supreme Court’s we are mindful however, reasoning adopted in overlap, does not warrant ated the it had some asylum regulation, discussing in a reading § Abudu. an alien’s effort to evidentiary requirements way that makes the claim he had withdrawn, entirely inapplicable to motions to applied the Court Abudu to the asylum claims. reopen for initial that: case held directly has not ad- Cоurt Attorney did not abuse his [T]he General interpretive problem posed by dressed the denying reopening discretion in either Nevertheless, when the dissent. respondent the basis that failed to adduce denying BIA decision a motion faced with a new material on the basis claim, newly-raised asylum it for a respondent satisfactorily explain failed to that a motion to apparently assumed previous his withdrawal of these claims. satisfy requirements in ease must such a added). (emphasis of both sections: regulation that for re- The BIA’s any While neither this Circuit nor other proceedings, opеning deportation 8 squarely interpretation has addressed the ‍‌​​​‌​‌‌​​​​‌‌​‌‌‌‌​​‌‌‌​‌​‌​​​​​​‌​​​​‌​‌‌‌‌‌​‌‍is (1987), applies § 3.2 to all motions C.F.R. raises, pp. sue that the dissent see 12156- reopen, regardless underlying of the infra, consistently 12158 the courts have as claim. substantive basis of the alien’s asylum sumed that in motions 10, 485 at 105-06 n. 108 S.Ct. at 912-13 U.S. subject requirements cases are to the dual (emphasis n. 10 See, INS, e.g., 3.2 and 208.4. Abudu v. (9th 1096, Cir.1986), Furthermore, 802 F.2d 1101-02 rev’d the Court stated that 94, 904, grounds, on other 485 108 may deny “BIA a motion to ... U.S. S.Ct. [be- (1988); INS, 99 L.Ed.2d has not 90 Samimi v. 714 the movant introduced cause] (9th 992, Cir.1983); evidence, material 8 F.2d 994 unavailable C.F.R. M.A. (1987) 208.4], or, INS, (4th asylum 304, in an A26851062 v. [now 899 F.2d 308-09 Cir.1990) (en case, banc); INS, the movant has not Ogbemudia v. 988 (5th 595, reasonably exрlained Cir.1993); his failure to for F.2d Bahramnia v. (1987).” INS, asylum initially, Cir.), cert. 104-05,108 conjunc- denied, at Id. at S.Ct. 912. The 479 U.S. 107 S.Ct. may imply only ground (1986); tion “or” L.Ed.2d 352 Sanchez v. (D.C.Cir.1983). a motion to 1523, 1526-27 denial of make asylum claim initial would be movant’s Because we find that BIA could lawful- satisfy explanation the reasonable failure ly petitioner’s base its denial of motion on requirement. light of the Court’s state- 3.2, petitioner’s we must address claim applicability ment of the broad how- that, applying § the BIA abused its ever, reading the better of Abudu is that the discretion. The BIA has ... “broad discre- new facts and the reasonable ... to decide that the material аdduced both to such motions and ... could have anticipated foreseen or provide grounds alternative for denial. See proceeding.” Doherty, time of the earlier also, (indicating at id. at U.S. S.Ct. at 726. In the circumstances exist in which the BIA must case, petitioner’s instant motion to reopen inquire both “whether the alien has reason- did not claim to offer evidence ably explained his unavailable; only explained it previous initially and has indeed [whether he] offered failures to claim and described his evidence,” previously unavailable material upon justifies activities Honduras which he omitted)). added, footnote prosecution. Accordingly, his fear of hardly language supports of Abudu an inter- upon was no basis which could have pretation, dissenting colleague’s, such as our being found that new facts were offered. effectively which would read 3.2 out of Its denial of the motion was not an abuse of asylum cases. discretion. Indeed, 314, 112 719, 116 (1992), L.Ed.2d 823 the Court reiter PETITION DENIED. asylum need meet the first

REINHARDT, dissenting: apply for Judge, Circuit requirement.1 respectfully dissent. I procedures 208 establishes to be Section petitioner who here is whether The issue applied cases. 8 C.F.R. and who previously filed has not (1992) applies moves to when proceedings in reopen deportation moves asylum appli- an initial order to file must sim- asylum application to file an order cation after the conclusion of explanation for his ply provide part, proceedings.2 provides, It in relevant earlier, whether he must so failure to do unavailable, material provide also proceedings jurisdiction over [i]f support his claim. While Immigration Ap- in the Board of vested majority believe that a BIA and the chapter, peals part 3 of this find, both, I on thе must do and withhold- provi- applicable language basis of ... shall be filed law, sions, the rationale prior case our conjunction reopen or with a motion to un- underlying the and 3.8 seeking pursuant remand to 8 CFR 3.2 available applicable. deportation proceedings order concedes, dispositive, together they support the con- majority Court read the As the seeking apply squarely raised addressed the issue that a for has not tention Instead, only petition. only requirements it has left us asylum this the of need meet Abudu, the tea leaves. In some inconclusive § 208.4. Ap- а Court of "the standard Court considered years four later The Court relied on Abudu apply reviewing BIA’s con- peals when the must petitioner had "failed to when it stated that the reasonably ex- alien has not clusion that an or ... to satisfac- adduce new material evidence asylum his claim at plained his failure to assert torily explain previous [his withdrawal of his Abudu, 104, 108 S.Ct. at 485 U.S. at the outset.” Doherty, request asylum]." for INS v. 502 U.S. question, addressing the Court that 911-12. 725, 719, 116 L.Ed.2d 823 112 S.Ct. regarding pertinent the statements made several requirements (1992). Doherty unique for the is a case from which a motion to for filing asylum. may gleaned exam- a clаim of For that is of relevance to the of little be regulations, discussing ple, Doherty the then-relevant filed case before us. The may hold that the stated that "the BIA the Court asylum, application, the and later for withdrew previously unavail- has not introduced movant asylum. apply The Attor- for moved or, able, evidence, (1987), §CFR 3.2 material motion, determining that ney General denied case, asylum application the movant that in an presented new material petitioner had not apply reasonably explained has not id., failure evidence, and, alternatively, that he "had (1987)." § asylum initially, 208.11 8 CFR for by withdrawing them his claims for relief waived 104-05, at 912 U.S. at 108 S.Ct. hearing a tactical advan- at the first to obtain added). By stating proposition in (emphasis 327, Only tage.” at 727. two Id. at 112 S.Ct. appears disjunctive, to have made the Court opinion, joined id. at justices in Part III of the §§ requirements 3.2 and that of it clear 208.11, 721, 315-17, that S.Ct. at which concluded 208.4, separate § and which is now are ground denying the motion to the alternative distinct, order to that a and motion equivalent of a to be “the functional comply only asylum with the must file a claim (1987) § that under 8 CFR 208.11 conclusion §§ Court requirements or 208.4. The 208.11 reasonably explainеd his [petitioner] ha[d] not stated, given ambiguously, a that “in later more ‍‌​​​‌​‌‌​​​​‌‌​‌‌‌‌​​‌‌‌​‌​‌​​​​​​‌​​​​‌​‌‌‌‌‌​‌‍327, pursue asylum.” Id. at determine, may either as a suffi- the BIA case Accordingly, all clear it is not at S.Ct. at 727. necessary ground denying a relief or as cient § majority 208.11 to be of the Court found that relief, granting the alien has step whether toward Doherty, that it or its applicable in let alone unavailable, previously evi- produced material 208.4, successor, applies § cases like ours cases, and, (§ 3.2), whether the dence filed for has not where a reasonably explained his or her alien has failure (§ 208.11).” asylum initially request Id. at 106-07, De- S.Ct. at 913 Although petitioner applied for in No- conjunctive, spite we doubt that the use of the 1990, regulations. the 1992 vember earlier to retreat from its the Court intended (stating part § “[t]his 208.1 Rather, See 8 C.F.R. the use of the unequivocal statement. applications to all product shall appears to be more a word “and" on or withholding that are filed as a is structured manner in which the sentence 1, 1990”). hardly after October whole. While the two statements 208.4(c)(3). application § It further test for a first than the standard reopen accompanied § that a motion to set forth in 3.2. “must reasоn- Moreover, §were 208.4 construed to incor request asylum ably the failure explain 3.2, § porate the substantive standard of completion of the prior exclusion or to the test, require two-part thus to the reason proceeding.” C.F.R. § able standard of 208.4 would 208.4(c)(4). § nullity. become either redundant or we face is how to construe The main issue discovery unavailable evidence section, §in

the references only satisfy would not 3.2 but would seem governing §§ the sections ingly always provide explana reopen generally. specific motions to asy tion for the earlier failure to incorporates question is whether Thus, truly lum as well. 3.2 would not 3.2,3 specifically substantive Practically, an additional standard. it would “pursuant or whether to” replace material the standard established in 208.4. requirements only procedural refers See 327 n. gov- 3.2 and 3.8—the 727 n. 116 L.Ed.2d 823 filing ern and contents of motions to (1992) (stating that “an offer of material evi strongly disagree major- reopen.4 I with the dence which was not available at the time of ity’s that the most reasonable construc- view would, hearing in most also be an that a motion to to file an is adequate explanation pursue for failure to subject the substan- proceeding”); claim at an earlier Duran v. requirements governing motions to tive re- Cir.1985) n. 1 open 3.2. I start with the observa- (stating petitioner may satisfy states motion explanation requirement by pro reasonable §§ “pursuant must to” 3.2 and be filed evidence). viding newly discovered Con only suggesting thus that a motion need com- versely, if even a offered a reason opposed ply procedural, with the as to the explanation, reopen able his motion to substantive, requirements regula- of those fail unless he also offered unavail way sug- tions. former subsection in no able, construing material evidence. Because gests provisions that all the substantive of incorporate § 208.4 to the substantive stan Rather, §§ apply automatically. 3.8 § deprive dard of 3.2 would the reasonable only provides § that an explanation any meaning standard of or ef pursuant requirements must be filed fect, construction, we if must avoid regulations applicable. of those Nev- See, e.g., reasonable alternative exists. ertheless, § because of 3.2 States, Shields v. United 698 F.2d 989 applicable reopen general- to motions to (9th denied, Cir.), cert. U.S. ly, previously unavailable evidence stan- (1983) (stating 78 L.Ed.2d 86 “the probably apply dard of 3.2 would to mo- statutory provi rule of construction that one tions 208.4 if the latter section did interpreted way sion should not be in a ... specific not contain substantive standard of provisions that renders other of the same its specific own—a less onerous one. The Here, meaningless”). statute inconsistent or substantive standard contained in 208.4 re- quires only only exist, not does a reasonable alternative initially, appropriate a far only file more but that alternative is the one that parties agree part reopen Both 3.2 on 4. Section 3.2 that a motion to may by following: decision rendered the BIA which the BIA relied is the be made "[m]otions party the § affected the decision. 8 C.F.R. reopen deportation proceedings shall not be alia, provides, 3.2. Section 3.8 inter that mo- granted appears unless it to the Board that evi- triplicate” tions to "shall be submitted in sought dence to be offered is material and was proved and "state the new facts to be not have available and could been discovered reopened hearing supported by and shall be affi- presented hearing...." or the former evidentiary davits or other material.” 8 C.F.R. C.F.R. 3.2. 3.8(a). meaning parts prior strongly supports all Our case law affords substantial petitioner seeking conclusion that a regulation. proceedings apply initially need pro- two there is a conflict between Where relying not show that he is visions, general, we ordi- specific one and one unavailable, prior material evidence. In our specific one. See Se- narily apply the more involving ap cases motions to to file Trust curity Pac. Nat’l Bank v. Resolution asylum, plications for we havе distilled the Cir.1995) (9th (noting Corp., language regulations administrative statutory “general- construction that rule of requirements. Rodriguez into two ly specific provision of an enactment a more Cir.1987); Duran, Here, prevails”). give in order to effect to F.2d at 1340 n. 1. that a We have held (the reg- §of the substantive standard first must establish a relief, specifically governing showing eligibility motions to re- ulation and second asylum applica- explain petition the failure to open in order to file initial file earlier.6 867; Rodriguez, 841 F.2d at See see also tions), only portions those 3.2 and 3.8 Duran, not, 756 F.2d at 1340 n. 1.7 haveWe (the regulations governing motions to eases, required pres that a proce- generally) govern filing and other ent material evidence. applicable. should dural matters be deemed words, requirement In other upheld have We explanation ap- provide tioner unavailable evidence in the context that he show plies and not the reopen in provide of motions to order newly that he has discovered evidence additional evidence in eases which the already previously unavailable.5 claim had been filed and ad- judge] hearing.” party for a We I note that neither asserts that the follow- did so even applicable ing part that the BIA though petitioners ‍‌​​​‌​‌‌​​​​‌‌​‌‌‌‌​​‌‌‌​‌​‌​​​​​​‌​​​​‌​‌‌‌‌‌​‌‍presented 3.2 is had no facts relied on it: that were not known at time of the any hearing. motion to for the nor shall affording opportunity the alien an Duran, we reviewed the denial of a motion discretionary granted relief be form of based on an initial right appears if it that the alien’s asylum. Although upheld Leon- denial of fully explained him and an such relief was reopen, illo Duran’s motion and one of the opportunity therefor was afforded him bases for the denial below had been the failure to hearing sought unless the relief is at the former present previously unavailable we were circumstances which have aris- on the basis of require not faced with the issue whether that subsequent hearing. en Duran, applicable or valid. In the ment was nor 3.2. The BIA neither mentions Immigration Judge had concluded that Duran portion equally the relies on this relevant of requirement had both not met the new evidence regulation, presumably because it believes that it reasonably explained apply. had not his failure to does For the same reason that this and not apply asylum. challenge request does to motions filed Duran did not those substantive rule not Instead, I that the substantive rule findings. believe he ar 756 F.2d at 1339-40. by requirement previ- of right relied on the BIA—the gued that he was unaware of his to inappli- ously material evidence—is asylum withholding of and for and cable. Judge Immigration have in the should upheld right. him of that Id. We the formed Rodriguez, we faced with a motion to In were right ground the that Duran had no to denial on reopen proceedings applica- an based on initial asylum. right Id. of his for be notified asylum. 841 F.2d at 866. The BIA tion for Nonetheless, doing Rodriguez, at so, as in in purposes fоr of its determination that assumed only a we described two for explana- petitioners had offered a reasonable deporta of motion to after the conclusion applying tion for not for one, proceedings: prima showing a facie they hearing, failed to but decided that had relief, two, expla eligibility for and prima persecution. establish a facie case of applied for such nation for the failure to have to the BIA at 867. We reversed but remanded earlier. relief peti- because it had not reached the issue of the requested explanation tioner’s and because it had us, before the BIA addressed nei 7. In the case opportunity to make the initial determination petitioner questions: Nonetheless, two whether ther of the question. we on that Id. at 872. showing eligibility established a facie petition- stated that if the BIA concluded that the reasonably explained whether he grant for and explanation adequate, ers' “it shall [immigra- for earlier. petitioners’ motion to remand to the his INS, Abudu, evidence); v. Padilla-Agustin v. judicated. See (1988). (9th Cir.1994); Aviles-Torres 99 L.Ed.2d 90 F.3d Cir.1986). For F.2d 1433 Requiring newly in or discovered evidence Padilla-Agustin, up we in examрle, litigated a ease that has been der motion to for failure held denial on the merits can be said to advance the 977-78, 21 F.3d at allege new “strong public bringing litigation interest moved to after the petitioner had promptly as is consistent with a close as ap judge had denied his initial immigration giving the adversaries a fair the interest withholding and plications for opportunity develop present their re Similarly, in asylum, id. at 972. political 107, 108 spective cases.” 485 U.S. at Aviles-Torres, required new evidence we S.Ct. at 913.8 previously petitioner had been de where the When, however, casе, inas this immigration judge. asylum by an nied previously sought asylum, it tioner has not is at 1435-36. eminently permit fair and reasonable to him Thus, applied the substantive re- we have comple- to file an initial claim of after in cases in which a quirement of deportation hearing tion of if he can reopen proceedings petitioner seeks satisfactory provide a of his fail- asylum petition previously denied re- have a request asylum ure to earlier. some adjudicated, in which a and not cases explanation may in fact be that reopen proceedings petitioner tо file seeks petitioner previously un- has discovered asylum. Put differ- evidence; others, may available be a petitioner ently, have found seek- equally explanation. different but reasonable apply initially reopen to however, long point, is that as as a must, establishing prima addition has valid reason satisfies the relief, only provide eligibility case of regulation, is not explanation for his failure to file precluded considering from asylum application earlier. Moreover, when a has drawn our ease law is The distinction previously asylum, filed for and thus the anаlysis supported by an of the interests previously litigated, matter has not been requirement un served fails, analogy ato motion for a new trial a claim of available evidence. When longer supports no denied, litigated already has been public unavailable evidence: the inter- unavailable evi diminished, finality est in and the interest general with our dence is consistent rule of giving opportunity pres- adversaries an law. motion to in such a case ent their unheard cases is at its analogized to a can be motion for a new trial apex.9 newly on the discovered еvidence. basis 321-23, 112 Although has a bur- See 502 U.S. at S.Ct. at “heavier request den when (stating that motions to are disfa he first advances his reopen,” vored for the same reason as are motions for in a motion to newly 915,10 a new trial on the basis of discovered I U.S. 108 S.Ct. at would con- recently explained inapplicable only 8. As we Caruncho v. standard is deemed in those “Injustice asylum proceedings governed by namely results when new evidence that bears petitioner's precluded on a eration; claim is from consid- cases. In such it makes prior result when it does not identical facts eminent sense to excuse the precluded being presented asylum good from in a different if cause is shown. (9th Cir.1995) (em- format.” phasis impossible 10. That burden ‍‌​​​‌​‌‌​​​​‌‌​‌‌‌‌​​‌‌‌​‌​‌​​​​​​‌​​​​‌​‌‌‌‌‌​‌‍is neither an one nor does it relate to the material evidence. As the my interpretation ap- 9. I note that under explained, Court has plies force when a with full seeks to supplement petition passing sufficiency amend a that has [a of motion to asylum], been denied the Board. It is in such to file an initial gener- significance circumstances that a new evidence rule is the BIA is entitled to attach to its untimeliness, ally appropriаte. purposes most 3.2 substantive both for the of evaluat- require previously unavailable elude that wholly inconsistent with which re- language of specific provide a rea-

quires explanation for his failure

sonable asylum prior to the conclusion of Accordingly, I would proceedings. petition and remand to the

grant to determine whether

with instructions showing of prima'

tioner has made and whether he has

eligibility

reasonably explained his failure to I therefore dissent. earlier. CORPORATION,

SINCLAIR OIL Wyoming Corporation,

Plaintiff-Appellant, BARBARA, a Politi-

COUNTY OF SANTA of the State of Califor-

cal Subdivision

nia; County Barbara Board of Santa Defendants-Appellees.

Supervisors,

No. 94-56611. Appeals,

United States Court

Ninth Circuit. 8,May

Argued Submitted Sept.

Decided request asylum during prove probability can tion for the failure that the movant allegations deportation proceeding. and for the of deter- his mining complied whether the movant has S.Ct. at 915. 485 U.S. at regulation requiring explana-

Case Details

Case Name: Jose Leandro Lainez-Ortiz v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 16, 1996

Citation: 96 F.3d 393

Docket Number: 94-70214

Court Abbreviation: 9th Cir.