Mario Fonseca-Fonseca v. Merrick Garland

               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MARIO FONSECA-FONSECA,                  No. 20-71977
AKA Felipe Fonseca, AKA
Guadalupe Fonseca,                       Agency No.
                                         A097-764-795
                Petitioner,

 v.                                       OPINION

MERRICK B. GARLAND, Attorney
General,

                Respondent.

       On Petition for Review of an Order of the
           Board of Immigration Appeals

       Argued and Submitted February 16, 2023
              San Francisco, California

                 Filed August 8, 2023

 Before: Kim McLane Wardlaw, Jacqueline H. Nguyen,
           and Lucy H. Koh, Circuit Judges.

              Opinion by Judge Nguyen
2                 FONSECA-FONSECA V. GARLAND


                          SUMMARY *


                          Immigration

    The panel granted a petition for review of the Board of
Immigration Appeals’ denial of Mario Fonseca-Fonseca’s
motion to reopen immigration proceedings to apply for
cancellation of removal, and remanded for consideration of
the motion under the correct standard.
    The BIA can deny a motion to reopen on any one of at
least three independent grounds: for failure to establish a
prima facie case for the relief sought; for failure to introduce
previously unavailable, material evidence; or based on a
determination that even if these requirements were satisfied,
a movant would not be entitled to the discretionary grant of
relief sought. Here, the BIA denied petitioner’s motion to
reopen after concluding that Fonseca-Fonseca failed to
establish prima facie eligibility for cancellation of removal
because he did not submit new evidence that “would likely
change” the result of his case.
    The panel clarified any possible confusion in this
circuit’s case law regarding a petitioner’s burden of proof in
a motion to reopen. Prima facie eligibility for relief requires
only a threshold showing of eligibility—a “reasonable
likelihood” that the petitioner would prevail on the merits if
the motion to reopen were granted. To be eligible for a
discretionary grant of relief, a petitioner must present new
evidence that “would likely change” the result in the
case. Because the BIA erred by applying the wrong legal

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                FONSECA-FONSECA V. GARLAND                 3


standard, the panel remanded to the BIA to adjudicate the
motion to reopen under the proper standard.



                        COUNSEL

Andrew J. S. Newcomb (argued), Mendoza Immigration,
San Jose, California; Elias Mendoza, Mendoza & Campos
Law Offices PC, Sacramento, California; for Petitioner.
Allison Frayer (argued) and Carmel A. Morgan, Trial
Attorneys; Jennifer P. Levings, Senior Litigation Counsel;
Julia Tyler, Acting Senior Litigation Counsel; Brian M.
Boynton, Acting Assistant Attorney General; United States
Department of Justice, Office of Immigration Litigation,
Civil Division; Washington, D.C.; for Respondent.



                        OPINION

NGUYEN, Circuit Judge:

    Mario Fonseca-Fonseca, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’
(“BIA”) denial of his motion to reopen. Fonseca-Fonseca
sought to reopen his immigration proceedings to apply for
cancellation of removal. The BIA found that he failed to
establish prima facie eligibility for cancellation of removal
because he did not submit new evidence that would likely
change the result in his case.
   The parties disagree on a threshold issue—whether the
BIA applied the correct burden of proof. The government
4                FONSECA-FONSECA V. GARLAND


argues that, to demonstrate prima facie eligibility for the
underlying relief in a motion to reopen, a petitioner must
present new evidence that “would likely change” the result
of his case. See In re Coelho, 

(B.I.A. 1992). Fonseca-Fonseca contends that he need only
show that the new evidence demonstrates a “reasonable
likelihood” that he is eligible for the requested relief. See In
re L-O-G-, 

 (B.I.A. 1996) (en banc).
    Fonseca-Fonseca has the better argument. Although our
published cases properly cite the reasonable likelihood
standard when addressing the prima facie ground, none
provide a rationale or indeed any discussion of the
appropriate standard. See, e.g., Ordonez v. INS, 

 (9th Cir. 2003); Garcia v. Holder, 

 (9th Cir. 2010); Kaur v. Garland, 

 (9th
Cir. 2021). Further, our memorandum dispositions have
introduced confusion by citing the two standards—“would
likely change” the result and “reasonable likelihood” of
eligibility for relief—loosely, and at times, interchangeably.
See, e.g., Vejar Rodriguez v. Garland, No. 19-71714, 

, at *1 (9th Cir. Dec. 20, 2021); Larin-De
Hernandez v. Garland, No. 18-70388, 

,
at *1 (9th Cir. Nov. 2, 2022).
     But these standards are not interchangeable. A standard
requiring petitioners to demonstrate that their new evidence
would likely change the result of their case is a substantively
higher bar than requiring petitioners to show a reasonable
likelihood of eligibility for relief.
    Today, we clarify that prima facie eligibility for relief
requires only a threshold showing of eligibility—a
reasonable likelihood that the petitioner would prevail on the
merits if the motion to reopen were granted. As the BIA
                  FONSECA-FONSECA V. GARLAND                       5


previously explained, a noncitizen “demonstrates prima
facie eligibility for relief where the evidence reveals a
reasonable likelihood that the statutory requirements for
relief have been satisfied.” In re S-V-, 

 (B.I.A. 2000) (en banc).
   Because the BIA applied the wrong standard in denying
Fonseca-Fonseca’s motion to reopen, we remand to the
agency to adjudicate his motions under the proper standard. 1
                                 I.
    Fonseca-Fonseca first entered the United States in March
1994. On May 23, 2013, he received a Notice to Appear
(“NTA”) that ordered him to appear before an immigration
judge (“IJ”) at a time and place to be set. Fonseca-Fonseca
applied for cancellation of removal but later withdrew the
application, conceding that he could not meet the ten-year
physical presence requirement.              See 8 U.S.C.
§ 1229b(b)(1)(A).      Fonseca-Fonseca then applied for
asylum, withholding of removal, and protection under the
Convention Against Torture. The IJ denied relief on the
grounds that the one-year bar precluded his asylum claim,
that Fonseca-Fonseca had not identified a cognizable
particular social group for purposes of withholding, and that
he presented no evidence of past or likely future torture by
the Mexican government.
   Fonseca-Fonseca appealed to the BIA. He did not
contest the merits of the IJ’s decision. Rather, he argued that

1
  The government contends that Fonseca-Fonseca timely appealed only
the BIA’s June 24, 2020 denial of his motion to reconsider, not the
underlying order denying his motion to reopen. But, as the government
acknowledges, we have jurisdiction over arguments that relate to
Fonseca-Fonseca’s motion to reconsider. And the motion to reconsider
raises the same legal question that we address here.
6                   FONSECA-FONSECA V. GARLAND


under Pereira v. Sessions, 

 (2018), his NTA
did not stop his accrual of physical presence for cancellation
of removal and that the agency lacked subject matter
jurisdiction because his NTA failed to list the time and place
of the hearing. 2 The BIA dismissed the appeal. It rejected
Fonseca-Fonseca’s jurisdictional argument and noted that
although the “incomplete Notice to Appear did not serve to
stop the accrual of continuous physical presence for the
purpose of cancellation of removal . . . [Fonseca-Fonseca]
does not presently have an application for cancellation of
removal pending or argue that a qualifying family member
will suffer exceptional and extremely unusual hardship as is
required for cancellation of removal.”
    Fonseca-Fonseca then moved to reopen to seek
cancellation of removal. He asserted that he could now
satisfy the continuous physical presence requirement. He
further contended that he could meet the other cancellation
requirements, including demonstrating exceptional and
extremely unusual hardship to his U.S.-citizen children.
Fonseca-Fonseca did not offer new hardship evidence.
    The BIA denied Fonseca-Fonseca’s motion to reopen.
The agency held that while Fonseca-Fonseca’s argument
regarding continuous presence “has merit” and “he does
appear to have the continuous physical presence required for
cancellation of removal,” his motion nevertheless failed
because “he has not provided evidence of hardship, and thus,

2
  Statutory eligibility for non-LPR cancellation of removal requires,
among other things, that the noncitizen “has been physically present in
the United States for a continuous period of not less than 10 years
immediately preceding the date of such application.” 8 U.S.C.
§ 1229b(b)(1)(A). Pereira held that an NTA that does not list the time
and place of the hearing does not cut off a noncitizen’s ability to accrue
time for purposes of cancellation of removal. 

.
                FONSECA-FONSECA V. GARLAND                  7


prima facie eligibility.” The BIA concluded that Fonseca-
Fonseca “has not submitted persuasive new or previously
unavailable evidence that is sufficient to meet his ‘heavy
burden’ of showing that it is likely that the result would
change if the proceedings were reopened.”
     Fonseca-Fonseca moved for reconsideration. He argued,
in relevant part, that the BIA erred as a matter of law by
requiring his new evidence to meet an improperly high
standard to show prima facie eligibility for cancellation. The
BIA denied the motion to reconsider, holding once more that
Fonseca-Fonseca “did not establish prima facie eligibility
for cancellation of removal” because he “has not shown that
it is likely the outcome of his proceedings will change.”
Fonseca-Fonseca petitions for review of the BIA’s decision
to deny his motion to reconsider.
    We have jurisdiction to review the BIA’s order under 

. We review denials of motions to reopen or
reconsider for abuse of discretion, Lara-Torres v. Ashcroft,

 (9th Cir. 2004), and questions of law de
novo, Lopez v. INS, 

 (9th Cir. 1999).
We grant the petition and remand.
                             II.
    “The BIA can deny a motion to reopen on any one of ‘at
least’ three independent grounds—‘failure to establish a
prima facie case for the relief sought, failure to introduce
previously unavailable, material evidence, and a
determination that even if these requirements were satisfied,
the movant would not be entitled to the discretionary grant
of relief which he sought.’” Najmabadi v. Holder, 

 (9th Cir. 2010) (quoting INS v. Doherty, 

 (1992)). When the ultimate relief is discretionary,
the BIA can leap over the two threshold concerns “and
8                FONSECA-FONSECA V. GARLAND


simply determine that even if they were met, the movant
would not be entitled to the discretionary grant of relief.”
See INS v. Abudu, 

 (1988); see also 

(a).
    Here, the BIA denied Fonseca-Fonseca’s motion to
reopen because he failed to establish prima facie eligibility
for cancellation of removal. We must decide whether the
BIA correctly required Fonseca-Fonseca to demonstrate that
new evidence “would likely change” the result of his case,
see In re Coelho, 

 (B.I.A. 1992),
instead of requiring him to show only a “reasonable
likelihood” that he is entitled to relief, see In re L-O-G-, 

 (B.I.A. 1996) (en banc). We find that
the BIA applied the wrong burden of proof.
                              A.
                              1.
    We begin by examining two of the most oft-cited BIA
decisions regarding a petitioner’s burden of proof in a
motion to reopen, each of which articulated a different
standard.
    The first case is Coelho, 

, decided
in 1992. There, the petitioner moved to reopen his removal
proceedings to introduce previously unavailable evidence of
rehabilitation. 

 Finding the prima facie ground “largely
irrelevant” to the motion, the BIA instead denied the
petitioner’s motion on discretionary grounds. 

 The BIA
held that “in cases such as this, the Board ordinarily will not
consider a discretionary grant of a motion to remand [for
reopening] unless the moving party meets a ‘heavy burden’
and presents evidence of such a nature that the Board is
satisfied that if proceedings before the immigration judge
                 FONSECA-FONSECA V. GARLAND                  9


were reopened, with all the attendant delays, the new
evidence offered would likely change the result in the case.”

 (emphasis added). In short, the BIA held that if a
petitioner’s new evidence was unlikely to change its exercise
of discretion, efficiency interests militated against reopening
the case.
    Four years later, when confronted with a case that turned
on the prima facie ground, the BIA crafted a different, lower
standard. In L-O-G-, 

, the petitioners
moved to reopen to apply for suspension of deportation. The
determinative issue was “whether the [petitioners] ha[d]
made a prima facie showing of extreme hardship.” 

. Instead of applying Coelho’s “would likely change”
standard, the BIA recognized that the prima facie context
logically called for a lower standard of proof. The BIA
explained that it was “willing to reopen ‘where the new facts
alleged, when coupled with the facts already of record,
satisfy us that it would be worthwhile to develop the issues
further at a plenary hearing on reopening.’” 

 at 419
(quoting In re Sipus, 

 (B.I.A. 1972)).
Therefore, when evaluating a petitioner’s motion on the
prima facie eligibility ground, “the [BIA] will look to
whether there is sufficient evidence proffered to indicate a
reasonable likelihood of success on the merits, so as to make
it worthwhile to develop the issues further at a full
evidentiary hearing.” Id. at 420 (emphasis added); see also
In re S-V-, 

 (B.I.A. 2000) (en
banc) (reaffirming that a noncitizen “demonstrates prima
facie eligibility for relief where the evidence reveals a
reasonable likelihood that the statutory requirements for
relief have been satisfied”).
    The BIA’s decision to apply a less stringent standard in
the context of a prima facie analysis makes sense. A prima
10                  FONSECA-FONSECA V. GARLAND


facie showing is merely a threshold showing. See Reyes v.
INS, 

 (9th Cir. 1982). A standard that
requires a prima facie showing that new evidence would
likely change the agency’s eligibility determination is
counterintuitive; it would essentially bypass the prima facie
requirement and require the petitioner to proffer evidence
that proves her claim for relief at the threshold. See Guo v.
Ashcroft, 

, 563–64 (3d Cir. 2004). Therefore,
the BIA reasonably applied the “would likely change”
standard to decisions on the discretionary ground in Coelho,
but lowered the burden of proof to a “reasonable likelihood”
of establishing eligibility for relief on the prima facie ground
in L-O-G-. 3
                                    2.
    In the years since Coelho and L-O-G-, we have cited to
the correct “reasonable likelihood” standard for deciding on
the prima facie ground in several decisions. See, e.g.,
Ordonez v. INS, 

 (9th Cir. 2003); Garcia
v. Holder, 

 (9th Cir. 2010); Kaur v.
Garland, 

 (9th Cir. 2021). But these
published decisions include bare citations without
elaborating on the rationale behind the standard applied.


3
  Fonseca-Fonseca argues that the “reasonable likelihood” standard
applies regardless of the BIA’s ground for denial as long as the petitioner
had not previously sought the same relief. But, in our view, whether the
agency has previously denied the petitioner’s claim is simply part of the
totality of the circumstances that the agency considers in weighing the
new evidence. See L-O-G-, 21 I. & N. Dec. at 419–20 (considering
totality of the circumstances in ruling on the reasonable likelihood of
establishing prima facie eligibility in a motion to reopen). Which
standard applies depends on the BIA’s ground for denial, not whether
the relief was previously sought.
                FONSECA-FONSECA V. GARLAND                 11


     Our unpublished decisions, however, have introduced
confusion by citing these two distinct standards loosely and,
at times, interchangeably. See, e.g., Larin-De Hernandez v.
Garland, No. 18-70388, 

, at *1 (9th Cir.
Nov. 2, 2022) (citing the “reasonable likelihood” standard
while approving the BIA’s use of the “would not likely
change” standard); Vejar Rodriguez v. Garland, No. 19-
71714, 

, at *1 (9th Cir. Dec. 20, 2021)
(same); Chan v. Mukasey, 

 (9th Cir.
2007) (rejecting petitioner’s argument that the BIA
incorrectly applied the “would likely change” standard while
quoting the “reasonable likelihood” standard).
    The BIA has, unfortunately, injected the same error into
its decisions by applying these distinct standards
indiscriminately. Compare In re Velarde-Pacheco, 

 (B.I.A. 2002) (en banc) (“By finding prima
facie eligibility, we are deciding only that there is a
reasonable likelihood that the statutory requirements for the
relief sought will be satisfied.”), overruled on other grounds
by In re Avetisyan, 

 (B.I.A. 2012),
and In re Gomez-Gonzalez, 

, at *1 (B.I.A.
2014) (applying “reasonable likelihood” standard to prima
facie ground), with In re Melville, 

, at *1
(B.I.A. 2008) (“[W]e find that this new evidence does not
present prima facie evidence that this new material would
likely change the result in this case.”), and In re Lojano,

, at *1 (B.I.A. 2012) (applying the “would
likely change” standard in a prima facie case).
    The only Ninth Circuit panel to directly address the
disparate nature of these standards found, in an unpublished
decision, that the “would likely change” standard applied
only to determinations made on the discretionary ground
whereas the “reasonable likelihood” standard applied to the
12                  FONSECA-FONSECA V. GARLAND


prima facie ground. See Torres-Jacinto v. Holder, 

, 818–19 (9th Cir. 2013). But no other case—
published or unpublished—has offered a reasoned
explanation for the standard applied. We address that gap in
our case law today.
                                   3.
    The government argues that the two standards are
interchangeable, and that L-O-G-’s discussion of reasonable
likelihood merely clarifies the “would likely change”
standard articulated in Coelho. 4 We disagree. The
“reasonable likelihood” standard requires a petitioner to
show more than a mere possibility she will establish a claim
for relief, but it does not require the petitioner to demonstrate
she is more likely than not to prevail. See Boyde v.
California, 

 (1990) (identifying the same
parameters for establishing reasonable likelihood in the
context of challenging jury instructions); see also Smith v.
Holder, 

 (1st Cir. 2010) (holding that a
“‘reasonable likelihood’ means ‘showing a realistic chance
that the petitioner can at a later time establish [a claim for
relief]’” (quoting Guo, 

)). In contrast, the
“would likely change” standard requires a petitioner to
establish that it is at least more probable than not that the
new evidence would change the outcome of the claim. The
“would likely change” standard plainly places a heavier
burden on a petitioner than the “reasonable likelihood”

4
  The government surprisingly insists that the standards are alike despite
taking a different stance in the Third Circuit. There, the government
represented that the “reasonable likelihood” standard specifically
applied when evaluating the prima facie ground and conceded that
“reasonable likelihood” and “would likely change” were different
standards. See Wright v. Att’y Gen., No. 19-3843, 

, at
*4 (3d Cir. Oct. 5, 2021).
                FONSECA-FONSECA V. GARLAND                13


standard. Cf. Kaur, 

 (holding that “reasonable
likelihood” and “more likely than not” are not equivalent).
    Today, we clarify any possible confusion in our case law
and reaffirm that the “reasonable likelihood” standard
applies to decisions made on the prima facie ground, and the
“would likely change” standard applies to decisions made on
the discretionary ground. Accord Guo, 386 F.3d at 563–64
(holding that “reasonable likelihood” standard applies to
prima facie ground for denial); Lopez v. Mukasey, 

 (10th Cir. 2008) (same).
                             B.
    We now turn to Fonseca-Fonseca’s case. The BIA
concluded that Fonseca-Fonseca failed to provide “evidence
of hardship, and thus, prima facie eligibility.” The agency,
citing Coelho, concluded that “the respondent has not
submitted persuasive new or previously unavailable
evidence that is sufficient to meet his ‘heavy burden’ of
showing that it is likely that the result would change if the
proceedings were reopened.” When Fonseca-Fonseca
pointed out the BIA’s error in his motion to reconsider, the
BIA again applied the “would likely change” standard.
     Because the BIA erred by applying the wrong standard,
we remand for the BIA to apply the correct standard in the
first instance.
   PETITION GRANTED AND REMANDED.