CA4 on Reopening: Mouns v. Garland

Mouns v. Garland

"The petitioner in this immigration matter, Hussein Ahmed Mouns, seeks our review of the decision of the Board of Immigration Appeals (the “BIA”) denying reconsideration of its earlier denial of Mouns’s motion to reopen his proceedings. In requesting the BIA’s reconsideration, Mouns argued that the BIA had committed legal error in denying the motion to reopen by utilizing the reopening standard devised for cases presenting special, adverse considerations by In re Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992) (requiring the movant to show that “the new evidence offered would likely change the result in the case”), rather than the generally applicable and less burdensome standard endorsed by In re L-O-G-, 21 I. & N. Dec. 413, 418-20 (BIA 1996) (allowing a showing of “reasonable likelihood”). Without addressing or even acknowledging L-O-G- or the “reasonable likelihood” standard, the BIA summarily declared the Coelho standard to be applicable and denied reconsideration. Because the BIA flouted its own precedents by ratifying the use of the Coelho standard, we grant Mouns’s petition for review, vacate the BIA’s decision denying reconsideration, and remand for further proceedings. ... [W]e emphasize that our ruling today is solely that the BIA abused its discretion in the Reconsideration Denial by flouting its own precedents and ratifying the use of the Coelho standard in the Reopening Denial. In other words — having specified the “reasonable likelihood” standard as its generally applicable reopening standard, and having limited the Coelho standard to cases presenting special, adverse considerations — the BIA cannot now arbitrarily use the Coelho standard as if it were the generally applicable one."

[Hats off to Daniel Diskin and David Garfield!  Listen to the oral argument here.]