USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 1 of 31

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1368

HUSSEIN AHMED MOUNS,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued: October 25, 2023 Decided: August 28, 2024

Before KING and GREGORY, Circuit Judges, and Joseph R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

Petition granted by published opinion. Judge King wrote the opinion, in which Judge Gregory and Judge Goodwin joined.

ARGUED: Daniel Aaron Diskin, GARFIELD LAW GROUP, PC, Washington, D.C., for Petitioner. Jessica Eden Burns, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: David Garfield, GARFIELD LAW GROUP, PC, Washington, D.C., for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Leslie McKay, Senior Litigation Counsel, John F. Stanton, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 2 of 31

KING, Circuit Judge:

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,

(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-,

(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.

I.

Mouns is a native of Ethiopia and citizen of Yemen who has been in the United

States since 1996. He filed an application in 1997 for asylum and withholding of removal,

which was denied by an immigration judge (an “IJ”) in 1999, with affirmance from the

BIA in 2002. Thereafter, Mouns filed with the BIA a pair of motions in 2003 and 2004 to

reopen his proceedings, by which he sought to pursue asylum, withholding of removal, and

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the previously unavailable relief of protection under the Convention Against Torture (the

“CAT”). Those motions were denied by the BIA in, respectively, 2003 and 2005. Mouns

did not petition this Court or another court of appeals for review of any of the BIA’s adverse

decisions. Although Mouns was thereby expected to return to Yemen, he remained in the

United States. 1

In 2020, Mouns filed with the BIA a third motion to reopen his proceedings — the

motion whose denial by the BIA triggered the reconsideration request now at issue. By

that motion to reopen, Mouns asserted changed country conditions in Yemen — including

its intervening and ongoing civil war — and again sought to pursue claims for asylum,

withholding of removal, and protection under the CAT. Mouns specified that he would be

subject to persecution upon his removal to Yemen based on, inter alia, his religion (Sunni

Muslim) and imputed political opinion (resulting from his association with the United

States and prior employment in Yemen with the U.S. Agency for International

Development). Applying the reopening standard of Coelho, the BIA denied Mouns’s

motion to reopen by decision of May 2021 (the “Reopening Denial”). Mouns did not

petition this Court for review of the Reopening Denial.

Mouns did, however, request the BIA’s reconsideration of the Reopening Denial,

arguing that the BIA had committed legal error by using the Coelho standard, rather than

the “reasonable likelihood” standard endorsed by L-O-G-. Additionally, Mouns contended

1 The fact that Mouns failed to return to Yemen in the early or mid-2000s was not raised by the BIA as a ground for denying him relief in the decision now before us.

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that the BIA had improperly diminished and disregarded evidence presented in support of

his motion to reopen. The BIA rejected those arguments and therefore denied

reconsideration by decision of March 2022 (the “Reconsideration Denial”). Significantly,

as recounted above, the Reconsideration Denial summarily declared the Coelho standard

to be applicable, with nary a mention of L-O-G- or the “reasonable likelihood” standard.

Mouns then petitioned for our review of the Reconsideration Denial, and we possess

jurisdiction pursuant to

(a)(1).

II.

At the outset, we highlight the distinction between reopening and reconsideration in

immigration proceedings. As we have explained, “a request for reconsideration is based

upon ‘errors of fact or law in the prior [BIA] decision,’” see Obioha v. Gonzales,

(4th Cir. 2005) (quoting

(b)(1)), “whereas a request to reopen

proceedings results from changed circumstances and specifically contemplates that [a

movant] will do so ‘for the purpose of submitting an application for relief,’”

(quoting

(c)(1)). Here, Mouns first moved the BIA to reopen his proceedings so

that he could pursue claims for asylum, withholding of removal, and protection under the

CAT based on changed country conditions in Yemen — the motion denied by the

Reopening Denial. Mouns then requested reconsideration of the Reopening Denial to

accord the BIA an opportunity to correct alleged errors therein — the request denied by

the Reconsideration Denial.

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Because Mouns did not petition for our review of the Reopening Denial, our review

is limited to the Reconsideration Denial. Nevertheless, much of today’s opinion

necessarily focuses on reopening, as the question before us is whether the BIA committed

reversible error in the Reconsideration Denial by denying Mouns’s request for

reconsideration of the Reopening Denial.

We have long reviewed the BIA’s denial of reconsideration for an abuse of

discretion. See Narine v. Holder,

(4th Cir. 2009). That “means that we

can reverse only if the [BIA] acted arbitrarily, irrationally, or contrary to law.”

(internal

quotation marks omitted). Mouns asserts that the BIA acted arbitrarily, irrationally, and

contrary to law in the Reconsideration Denial by, inter alia, ratifying its earlier use in the

Reopening Denial of the Coelho standard instead of the “reasonable likelihood” standard.

As explained herein, we agree.

.

A motion to reopen, in the words of the Supreme Court, “is an ‘important safeguard’

intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” See

2 Because the BIA’s use of the wrong reopening standard requires us to vacate the Reconsideration Denial and remand for further proceedings, we need not reach and address other alleged errors in the Reconsideration Denial, which relate to the BIA’s treatment of Mouns’s evidence in support of his motion to reopen. We note, however, that Mouns has presented colorable arguments that the BIA improperly diminished and disregarded his evidence. Moreover, although the government disputes Mouns’s entitlement to the relief sought, it acknowledges that his “desire to avoid return to Yemen is understandable.” See Br. of Resp’t 53 (encouraging Mouns to “explore applying for Temporary Protected Status,” as has recently been extended to other Yemeni nationals).

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Kucana v. Holder,

(2010) (quoting Dada v. Mukasey,

(2008)). Since 1958, when the BIA was established, motions to reopen immigration

proceedings have been governed by federal regulations promulgated by the United States

Attorney General. See

, 9118-19 (Nov. 26, 1958). Those regulations,

as periodically amended, now coexist with predominating statutory standards for motions

to reopen that were enacted by Congress in 1996, see Illegal Immigration Reform and

Immigrant Responsibility Act of 1996,

Stat. 3009-546, and that

also have since been amended several times.

The controlling statute, found in § 1229a(c)(7) of Title 8, includes a general limit of

“one motion” that must “be filed within 90 days of the date of entry of a final administrative

order of removal.” See 8 U.S.C. § 1229a(c)(7)(A), (C)(i). Such a motion may be filed to

pursue various types of relief, both discretionary and mandatory.

Pertinent here, however, the controlling statute and the regulations provide that a

motion to reopen is not subject to the usual time and number limits

if the basis of the motion is to apply for relief [in the form of asylum or withholding of removal] and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.

See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

(c)(3)(ii) (illuminating that

“[t]he time and numerical limits” do “not apply to a motion to reopen proceedings” where

the movant seeks “[t]o apply or reapply for asylum or withholding of [removal] based on

changed [country conditions]”). By their express terms, the statute and regulations thus

bestow special, favorable treatment on a motion to reopen where the movant is seeking to

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pursue asylum or withholding of removal based on changed country conditions — even

where the movant has previously applied for and been denied asylum or withholding of

removal.

As is well established, asylum is relief that the Attorney General may grant in his

discretion, see

, and withholding of removal is relief that the Attorney

General must grant, see

§ 1231(b)(3), upon certain showings by a noncitizen that he

would be subject to death or other persecution in the country to which he would be

removed. Specifically, a noncitizen seeking asylum must show that he is a “refugee,”

whose statutory definition includes a person “who is unable or unwilling to return to [his

home] country because of persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social group, or political opinion.”

Id. §§ 1101(a)(42)(A), 1158(b)(1)(A). Similarly, a noncitizen seeking withholding of

removal must show that his “life or freedom would be threatened in [the] country [of

removal] because of [his] race, religion, nationality, membership in a particular social

group, or political opinion.” Id. § 1231(b)(3)(A). But see Anim v. Mukasey,

(4th Cir. 2008) (explaining that a withholding of removal claim requires proof of

“a clear probability” of persecution — “a more demanding standard of proof than an

asylum claim” — such that a noncitizen “who has failed to establish the less stringent ‘well-

founded fear’ standard of proof required for asylum relief is necessarily also unable to

establish an entitlement to withholding of removal” (internal quotation marks omitted)).

By authorizing grants of asylum and withholding of removal, Congress has given

our government “flexibility to respond to” a threat of persecution faced by a noncitizen.

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See INS v. Cardoza-Fonseca,

(1987) (internal quotation marks omitted)

(underscoring that “[d]eportation is always a harsh measure” and that “it is all the more

replete with danger when [a noncitizen] makes a claim that he or she will be subject to

death or persecution if forced to return to his or her home country”). That flexibility was

further expanded by Congress with its enactment of 8 U.S.C. § 1229a(c)(7)(C)(ii), freely

allowing immigration proceedings to be reopened so that a noncitizen may pursue asylum

and withholding of removal when a threat of persecution comes with changed country

conditions, and not just changed personal circumstances.

2.

According to the regulations concerning motions to reopen in general, where

jurisdiction in a particular matter has vested with the BIA, a party’s motion to reopen must

be made to the BIA and “[t]he decision to grant or deny [the] motion . . . is within the

[BIA’s] discretion.” See

(a) (addressing reopening requests made to the

BIA); see also

§ 1003.23(b)(1) (explaining when reopening can instead be sought from

an IJ). Notably, the BIA acts as adjudicator in immigration proceedings on authority

delegated by the Attorney General, pursuant to both statute and regulation. See Kucana,

(citing

(g)(2);

). In contrast, the BIA’s

“discretionary authority to act on a motion to reopen . . . is specified not in a statute, but

only in the Attorney General’s regulation.” See

(internal quotation marks

omitted) (referring to

(a)); see also INS v. Doherty,

(1992) (describing the “broad discretion” accorded by regulation to the BIA to grant or

deny a motion to reopen (quoting INS v. Rios-Pineda,

(1985))).

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For their part, the regulations indicate that a movant must “ma[k]e out a prima facie

case for relief” to qualify for reopening, and that the BIA can then exercise its discretion

to grant or deny the motion. See

(a) (providing that the BIA “has

discretion to deny a motion to reopen even if the moving party has made out a prima facie

case for relief”). As such, the questions raised by a motion to reopen may include the

following, which can be addressed by the BIA in either order: (1) whether the movant has

demonstrated statutory eligibility for the relief sought; and (2) where the relief sought is

discretionary rather than mandatory, whether the movant has demonstrated entitlement to

a discretionary grant of that relief. See INS v. Abudu,

(1988)

(observing that, to deny reopening, the BIA “may hold that the movant has not established

a prima facie case [of statutory eligibility] for the underlying substantive relief sought,” or,

“in cases in which the ultimate grant of relief is discretionary,” it “may leap ahead . . . and

simply determine that . . . the movant would not be entitled to the discretionary grant of

relief”).

Meanwhile, the controlling statute mandates that a “motion to reopen shall state the

new facts that will be proven at a hearing to be held if the motion is granted, and shall be

supported by affidavits or other evidentiary material.” See 8 U.S.C. § 1229a(c)(7)(B).

Thus, whether the movant has complied with those statutory requirements is another

question raised by a motion to reopen and another ground on which reopening may be

denied.

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3.

Importantly, neither the controlling statute nor the regulations specify what the

proffered evidence must show in order for the movant to qualify for reopening by making

out a prima facie case for the relief sought. Instead, the BIA has used its decisions to

delineate reopening standards.

a.

Of especial significance in our Circuit, the BIA employed the “reasonable

likelihood” reopening standard in its 1979 decision in In re Rodriguez-Vera,

(BIA 1979). There, noncitizen Rodriguez-Vera had previously been found

removable based on his Texas conviction for the murder of his wife, and he was seeking to

reopen his immigration proceedings to apply for the first time for a discretionary waiver of

inadmissibility under

(c). See Rodriguez-Vera,

. 3

The government argued that regardless of whether Rodriguez-Vera was statutorily eligible

for a waiver of inadmissibility, such a waiver “would surely be denied in the exercise of

discretion and, therefore, no useful purpose would be served by granting the motion [to

reopen].”

. Applying the “reasonable likelihood” standard, the BIA then denied

reopening on the ground that “the evidence of record fail[ed] to demonstrate a reasonable

likelihood that the relief sought would be granted at a reopened hearing.”

at 107

3 Prior to its repeal in 1996, § 1182(c) of Title 8 allowed a noncitizen “‘lawfully admitted for permanent residence’ yet facing deportation to apply for discretionary relief” — a waiver of inadmissibility — upon completion of ‘a lawful unrelinquished domicile of seven consecutive years.’” See Nwolise v. INS,

(4th Cir. 1993) (footnote omitted) (quoting former

(c)).

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(explaining that Rodriguez-Vera’s murder offense was “an extremely serious negative

factor” that there was no reasonable likelihood of overcoming “by a showing of unusual or

outstanding equities”).

This Court then recognized Rodriguez-Vera’s “reasonable likelihood” standard in

our 1990 decision in M.A. v. INS,

(4th Cir. 1990) (en banc). And we did so

without questioning it, as the issue before us in M.A. was not the propriety of the

“reasonable likelihood” standard. Rather, we were deciding our own standard for

reviewing the BIA’s denial of a motion to reopen based on the movant’s failure to make a

prima facie showing of statutory eligibility for the relief sought. See M.A., 899 F.2d at 308.

In the course of settling on an abuse-of-discretion standard of review, we related that the

showing required by the BIA to satisfy the “reasonable likelihood” standard

includes not only that there is a reasonable likelihood that the statutory requirements for the relief sought are satisfied, but also a reasonable likelihood that a grant of [any discretionary relief sought, such as asylum or a waiver of inadmissibility,] may be warranted as a matter of discretion.

Id. at 310 (emphasis and internal quotation marks omitted) (citing Rodriguez-Vera,

).

b.

Thereafter, in 1992, the BIA issued its Coelho decision — setting forth the more

stringent reopening standard used against Mouns in the Reopening Denial and ratified by

the Reconsideration Denial. See In re Coelho,

(BIA 1992). As the

Coelho decision made clear, however, the more stringent standard was appropriate because

of the particular negative circumstances of that case.

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Specifically, Coelho was a noncitizen who had conceded removability from the

United States based on his federal convictions of controlled substance offenses and who

had concomitantly sought from the presiding IJ a discretionary waiver of inadmissibility

under

(c). See Coelho,

. Despite observing that

Coelho “appeared to be statutorily eligible for a waiver of inadmissibility,” the IJ had

denied Coelho’s waiver request on the ground that he “did not show that a grant of relief

was warranted in the exercise of discretion.”

. Coelho then appealed to the

BIA, seeking reversal of the IJ’s denial of a waiver of inadmissibility; alternatively, Coelho

moved to reopen the IJ proceedings to present new evidence in support of his preexisting

waiver request.

.

The BIA first addressed Coelho’s appeal from the IJ’s denial of a waiver of

inadmissibility and accepted that Coelho had established statutory eligibility for such relief.

See Coelho,

. The BIA ultimately ruled, however, that a balancing

of the positive factors (e.g., that Coelho had achieved some rehabilitation in prison) against

the negative (the seriousness of his drug offenses) did not weigh in favor of an exercise of

discretion to grant a waiver of inadmissibility.

. Accordingly, the BIA resolved

to dismiss Coelho’s appeal from the IJ’s denial of the waiver request.

.

Next, the BIA addressed Coelho’s alternative motion to reopen the IJ proceedings

so that he could present new evidence, of further rehabilitation, in support of his request

for a waiver of inadmissibility. See Coelho,

. Of course, the

circumstances of Coelho’s motion to reopen (seeking to present new evidence to the IJ in

support of a preexisting waiver request) differed from the circumstances of the motion to

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reopen that had been denied in Rodriguez-Vera under the “reasonable likelihood”

reopening standard (seeking to request a waiver of inadmissibility from the IJ for the first

time). Indeed, the Coelho decision did not mention Rodriguez-Vera’s “reasonable

likelihood” standard.

Instead, the Coelho decision devised a reopening standard to fit the circumstances

presented. In so doing, the BIA recognized that — because Coelho had “already

established [statutory] eligibility to be considered for [a waiver of inadmissibility] and

ha[d] already been provided the opportunity to apply for such relief” — “making a prima

facie showing of [statutory] eligibility for the underlying relief being sought [was] largely

irrelevant.” See Coelho,

. The BIA also observed that “the issue

[was] not simply whether there [was] ‘new’ evidence,” for “there arguably always will be

additional evidence” to support a waiver of inadmissibility request as a result of “the mere

passage of time.”

Rather, as the BIA saw it, the key question in deciding if Coelho

should be awarded reopening was whether he had adequately shown by his new evidence

that he warranted a waiver of inadmissibility as a matter of discretion.

.

From there, the Coelho decision specified the standard to be applied to motions to

reopen “in cases such as this.” See

(emphasis added). Under that

reopening standard, the movant must

meet[] a heavy burden and present[] evidence of such a nature that the [BIA] is satisfied that if proceedings before the [IJ] were reopened, with all the attendant delays, the new evidence offered would likely change the result in the case.

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(internal quotation marks omitted). Alluding to its concurrent dismissal of Coelho’s

appeal from the IJ’s denial of a waiver of inadmissibility, the BIA elaborated that its

standard required it to deny Coelho’s motion to reopen “if we conclude that our decision

on the appeal would be the same even if the proffered evidence were already part of the

record on appeal.”

The BIA then determined that Coelho failed to meet that “heavy

burden” and thus denied the motion to reopen.

(internal quotation marks

omitted).

c.

In 1996, the BIA issued its L-O-G- decision — on which Mouns now relies for his

argument that the BIA erroneously used the Coelho reopening standard against him. See

In re L-O-G-,

(BIA 1996). The L-O-G- decision confirmed the general

applicability of the “reasonable likelihood” standard to motions to reopen immigration

proceedings, while also expounding on the limited applicability of the more stringent

Coelho standard.

The L-O-G- decision concerned two noncitizens — L-O-G- and her 15-year-old

daughter — who had previously applied for and been denied asylum and withholding of

removal, and who were now seeking to reopen the IJ proceedings to apply for the first time

for the discretionary relief of suspension of deportation pursuant to

(a)(1).

See L-O-G-,

. 4 Having found “no reason to deny reopening as a

4 Prior to its repeal in 1996 (shortly after the BIA issued the L-O-G- decision), § 1254(a)(1) of Title 8 provided for the discretionary relief of suspension of deportation, available to a noncitizen “‘of good moral character’” whose “deportation would cause (Continued) 14 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 15 of 31

matter of discretion,” the BIA focused on the question of whether the movants made a

prima facia showing of statutory eligibility for suspension of deportation. Id. at 415. There

being no other dispute concerning statutory eligibility, the “critical issue” for the BIA was

whether each movant had made a prima facie showing that “her deportation would result

in extreme hardship to herself or to her United States citizen or lawful permanent resident

spouse, child, or parent.” Id.

In grappling with that question, the BIA observed not only that there were “no bright

line tests for determining what constitutes extreme hardship and what does not,” but also

that there were “no easy rules for deciding what makes a prima facie case of such hardship

and what does not.” See L-O-G-,

. What was clear to the BIA,

however, is that the “reasonable likelihood” standard is the generally applicable standard

for motions to reopen — particularly where, as in L-O-G-, ruling on the motion “requires

the exercise of judgment regarding eligibility for the relief sought.” See

. It

was also obvious to the BIA that the more stringent Coelho standard applies only in limited

cases presenting “special, adverse considerations.” See

. The BIA

differentiated the standards by suggesting that the Coelho standard requires a showing that

the “reasonable likelihood” standard does not, that being “a conclusive showing” of

entitlement to the relief sought. See

.

‘extreme hardship’ to him or his family” and who “had been ‘physically present in the United States for a continuous period of not less than seven years immediately preceding’ the application for relief.” See Jaghoori v. Holder,

(4th Cir. 2014) (quoting former

(a)(1)).

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As for the “reasonable likelihood” standard, the L-O-G- decision recognized that

where “ruling on a motion to reopen requires the exercise of judgment regarding eligibility

for the relief sought, the [BIA] historically has not required a conclusive showing that,

assuming the facts alleged to be true, eligibility for relief has been established.” See

. “Rather,” the BIA observed, “we have been 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,

(BIA 1972)). The L-O-G- decision

also underscored that “[i]n considering a motion to reopen, the [BIA] should not prejudge

the merits of a case before the [movant] has had an opportunity to prove the case.”

As

such, the BIA explained:

By finding that [a movant] has made out a prima facie case of [eligibility for the relief sought], we are not deciding that the [movant] should be granted [relief in the reopened proceedings] as a matter of law or discretion if the facts alleged are shown to be true. We are deciding only that there is a reasonable likelihood that the statutory requirements for the relief sought have been satisfied, and that there is a reasonable likelihood that relief will be granted in the exercise of discretion.

(citing M.A., 899 F.2d at 310 (similarly describing the “reasonable likelihood” standard

as employed in Rodriguez-Vera,

)).

Turning to the more stringent Coelho standard, the L-O-G- decision specified

Coelho as a case where the BIA has “emphasized the heavy burden of proof faced by [a

noncitizen] seeking reopening” because “the facts warranted the strict imposition of such

a burden.” See L-O-G-,

. According to the L-O-G- decision, the

particular facts warranting the “heavy burden” in Coelho included that the movant “had

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already had an opportunity to fully present and litigate his request for [a discretionary

waiver of inadmissibility under]

(c)” and that he simply “sought a remand

for further consideration of the [preexisting] application.”

. The L-O-G-

decision then articulated Coelho’s holding as being “that ‘in cases such as this,’ reopening

should not be granted unless the [movant has] met the ‘heavy burden’ of showing that the

new evidence presented ‘would likely change the result in the case.’”

at 420 (quoting

Coelho,

). Moreover, the L-O-G- decision indicated that cases such

as Coelho were cases presenting “special, adverse considerations” that thus required “a

conclusive showing” of eligibility for the relief sought. See id. at 418-20.

Helpfully, the L-O-G- decision elaborated that “[m]any motions to reopen, however,

do not present the[] special, adverse considerations [presented by Coelho].” See L-O-G-,

. The BIA gave the example of a movant “seeking previously

unavailable relief” who “has not had an opportunity to present her application before the

[IJ].”

In circumstances like those, the BIA explained, it will apply the “reasonable

likelihood” standard and “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.”

Choosing the standard to apply to the reopening request lodged by L-O-G- and her

daughter, the BIA recognized in L-O-G- that “[t]he case before us presents none of the

more egregious factors present in such cases as [Coelho].” See L-O-G-,

(further noting “[t]he absence of any dilatory tactics”). The BIA therefore applied the

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“reasonable likelihood” standard and ultimately resolved to grant reopening.

at 420-

22. 5

d.

As far as we can tell from the BIA’s reported decisions, since its 1996 decision in

L-O-G-, the BIA has not revisited the matter of when it is appropriate to apply the

“reasonable likelihood” standard and when it is instead appropriate to apply the more

stringent Coelho standard. That is, each time it has adjudicated a motion to reopen, the

BIA has simply opted to use one of those standards without acknowledging the other or

explaining its choice between the two. Nevertheless, the standard selected by the BIA has

— until Mouns’s present case — largely been consistent with L-O-G-’s characterization of

the “reasonable likelihood” standard as being generally applicable and the Coelho standard

as being limited to cases presenting special, adverse considerations.

For example, in its 2000 decision in In re S-V-,

(BIA 2000),

the BIA utilized and discussed only the “reasonable likelihood” standard, plainly treating

it as the generally applicable standard. There, noncitizen S-V- had been found removable

following his convictions of Florida offenses including grand theft and robbery, and he was

seeking to reopen his immigration proceedings to petition for the first time for asylum and

5 Although the L-O-G- decision drew a dissent, there was no challenge to the applicability of the “reasonable likelihood” standard; rather, the dissent disagreed with the majority’s conclusion that L-O-G- and her daughter satisfied that reopening standard. See

.

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withholding of removal. See S-V-,

. Invoking the “reasonable

likelihood” standard, the BIA observed:

We have found that a [reopening movant] demonstrates prima facie eligibility for relief where the evidence reveals a reasonable likelihood that the statutory requirements for relief have been satisfied. We have not required a conclusive showing that eligibility for relief has been established. Rather, we have reopened proceedings 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.

(internal quotation marks omitted) (citing L-O-G-,

).

The BIA then applied the “reasonable likelihood standard” and concluded that S-V- failed

to make the necessary showing as to any of the relief sought. Id. at 1308-11 (recognizing,

inter alia, that S-V- was barred from eligibility for withholding of removal as a noncitizen

“convicted of a particularly serious crime”).

Elsewhere, as in its 2007 decision in In re S-Y-G-,

(BIA 2007),

the BIA has used the Coelho standard. In that case, the BIA strongly indicated — without

expressly stating — that special, adverse considerations justified doing so. Specifically,

the BIA emphasized that noncitizen S-Y-G- had filed repeated motions to reopen in order

to reapply for asylum and withholding of removal based on China’s family planning

policies, continued to present “largely cumulative” evidence, and “was previously found

to have offered incredible testimony to gain immigration benefits.” See S-Y-G-,

. Not surprisingly, the BIA then resolved that S-Y-G- was not eligible for

reopening. See

(explaining that because S-Y-G- had not satisfied the Coelho

standard and was “still making the same argument she first offered in 1996,” her latest

motion to reopen was denied).

19 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 20 of 31

Similarly, this Court recognized the Coelho standard as the pertinent reopening

standard in our 2014 decision in Wanrong Lin v. Holder,

(4th Cir. 2014),

upholding the BIA’s denial of a motion to reopen. 6 There, we briefly recited that a

reopening movant “carries a ‘heavy burden,’” in that “he or she must show that ‘the new

evidence offered would likely change the result in the case.’” See Wanrong Lin,

(quoting Coelho,

). In so doing, we neither mentioned the

“reasonable likelihood” standard nor specified any special, adverse considerations

justifying the use of the Coelho standard instead. But in light of the following, that makes

perfect sense: there was no challenge in Wanrong Lin to the applicability of the Coelho

standard; the Coelho standard had also been used by the BIA without apparent controversy

in its S-Y-G- decision; S-Y-G- figured prominently in Wanrong Lin; and like S-Y-G-,

Wanrong Lin involved a noncitizen who had filed repeated motions to reopen in order to

reapply for asylum and withholding of removal based on China’s family planning policies,

who continued to present cumulative evidence, and who was previously found to lack

credibility. See Wanrong Lin,

. 7

6 Aside from our published Wanrong Lin decision, we have invoked the Coelho standard only in opinions that were unpublished and thus nonprecedential. See, e.g., Sanchez v. Sessions,

(4th Cir. 2017); Ferman v. Holder,

(4th Cir. 2014). 7 Although our Wanrong Lin decision did not say so, the administrative record confirms that the BIA itself had employed the Coelho standard and relied on S-Y-G- in denying the very motion to reopen at issue in Wanrong Lin.

20 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 21 of 31

B.

That brings us to Mouns’s case and the BIA’s use of the Coelho standard in its

Reopening Denial of May 2021. The BIA therein pronounced that the Coelho standard

applied and that Mouns thus had “a heavy burden to prove that if the proceedings [were]

reopened with all the attendant delays, the new evidence offered would likely change the

result in the case.” See Reopening Denial 2 (internal quotation marks omitted) (citing

Coelho,

). The BIA did not mention the “reasonable likelihood”

standard or the possibility of utilizing it instead. Moreover, the BIA did not acknowledge

that the Coelho standard is limited to cases presenting special, adverse considerations, nor

did the BIA expressly state or in any way suggest that there were special, adverse

considerations presented by Mouns’s case.

Rather, the BIA swiftly proceeded to consider whether Mouns had satisfied the

Coelho standard and established eligibility for the relief sought — asylum, withholding of

removal, and protection under the CAT. See Reopening Denial 2-3. 8 Of course, in seeking

reopening, Mouns relied on the statutory “changed country conditions” exception to the

usual time and number limits on motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii)

(requiring new and material evidence of changed country conditions, i.e., evidence that “is

material and was not available and would not have been discovered or presented at the

previous proceeding”). The BIA recognized that the “changed country conditions”

8 Distinct from asylum and withholding of removal, CAT protection requires a showing “that it is more likely than not that [the noncitizen] would be tortured if removed to the proposed country of removal.” See

(c)(2).

21 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 22 of 31

exception expressly applies where a movant is seeking asylum and withholding of removal,

and it “[a]ssum[ed] arguendo” that the exception applies where a movant is seeking CAT

protection. See Reopening Denial 1, 3. Additionally, the BIA easily accepted that Mouns’s

evidence of the civil war and other changed country conditions in Yemen was genuinely

new and qualitatively different from the evidence he had previously proffered.

(observing that “[t]he evidence accompanying [Mouns’s] motion reflects that conditions

in Yemen have changed since [he] last appeared before an [IJ] more than 20 years ago”).

The BIA questioned, however, whether the evidence was material to the claims Mouns

wished to pursue and sufficiently demonstrated his entitlement to relief.

The BIA’s resulting claim-by-claim analysis began — and ended — with the issue

of whether Mouns had made a conclusive showing of statutory eligibility for the relief

sought. See Reopening Denial 2-3. As to each form of relief, the BIA exercised its

judgment and determined that he had not. That is, the BIA concluded that Mouns failed to

show “a prima facie well-founded fear or clear probability of” persecution for purposes of

asylum and withholding of removal, and that he further failed to “demonstrate[] prima facie

eligibility for CAT protection.”

. Accordingly, the BIA denied Mouns’s motion to

reopen.

.

In his subsequent request for reconsideration of the Reopening Denial, Mouns

contended that the BIA had erred both by failing to apply the correct reopening standard

and by improperly diminishing and disregarding his evidence. As for the standard-related

argument, Mouns articulated that instead of utilizing the Coelho standard and thus

requiring him to make a conclusive showing of eligibility for the relief sought, the BIA

22 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 23 of 31

should have used the “reasonable likelihood” standard and allowed him to simply

demonstrate a reasonable likelihood that he would be granted relief at a reopened hearing.

For support of that contention, Mouns invoked the BIA’s own L-O-G- decision.

Taking up Mouns’s standard-related argument in its Reconsideration Denial of

March 2022, the BIA described that contention as being that it had erred in the Reopening

Denial “because it did not apply the correct standard for determining whether [Mouns]

made a prima facie showing of relief as required for a motion to reopen.” See

Reconsideration Denial 2. The BIA’s curt response was, “We disagree.”

In rendering

its response, the BIA did not address or even acknowledge either its L-O-G- decision or

the “reasonable likelihood” standard raised by Mouns. Rather, the BIA merely reiterated,

as “stated in [the Reopening Denial],” that Mouns had “a heavy burden to prove that if the

proceedings [were] reopened with all the attendant delays, the new evidence offered would

likely change the result in the case.”

(internal quotation marks omitted). The BIA once

again cited Coelho, and it additionally cited its S-Y-G- decision and this Court’s decision

in Wanrong Lin.

After ratifying the Reopening Denial’s use of the Coelho standard, the BIA endorsed

the Reopening Denial’s conclusion that Mouns failed to “carry his burden to establish [that

the evidence presented with his motion to reopen] would likely change the outcome of the

proceedings.” See Reconsideration Denial 2. Ultimately, the BIA rejected all of Mouns’s

contentions of error in the Reopening Denial and therefore denied his request for

reconsideration.

.

23 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 24 of 31

C.

In these circumstances, we agree with Mouns 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. See Narine,

(specifying that the

BIA abuses its discretion when it “act[s] arbitrarily, irrationally, or contrary to law”).

Moreover, we could say that it was reversible error alone for the BIA to simply dig in and

declare the Coelho standard to be applicable, without giving any explanation as to why that

was so and without even acknowledging the L-O-G- decision and “reasonable likelihood”

standard raised by Mouns in his request for reconsideration. See Hussain v. Gonzales,

(4th Cir. 2007) (recognizing that an abuse of discretion occurs when the BIA

“fails to offer a reasoned explanation for its decision, distorts or disregards important

aspects of the [noncitizen’s] claim” (internal quotation marks omitted)). In any event, we

cannot think of any reasoned explanation for the use of the Coelho standard that the BIA

could have offered.

1.

Essentially, the BIA treated the Coelho standard as the generally applicable

reopening standard. But that was contrary to its L-O-G- decision, wherein the BIA

confirmed that the “reasonable likelihood” standard is the generally applicable reopening

standard and that the more stringent Coelho standard is limited to cases presenting special,

adverse considerations. See L-O-G-,

(explaining that the

particular facts warranting the “heavy burden” in Coelho included that the movant “had

already had an opportunity to fully present and litigate his request for [a discretionary

24 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 25 of 31

waiver of inadmissibility]” and that he simply “sought a remand for further consideration

of the [preexisting] application”); see also Coelho,

(emphasizing

that its standard was specially devised for “cases such as this”); S-Y-G-,

(indicating that the application of the Coelho standard was justified because the

movant had filed repeated motions to reopen, continued to present “largely cumulative”

evidence, and “was previously found to have offered incredible testimony”).

Importantly, the BIA did not identify or even suggest any special, adverse

considerations presented by Mouns’s case that could justify the use of the Coelho standard,

such as the abusive filing of motions to reopen that the BIA had found troubling in Coelho

and S-Y-G-. To the contrary, the BIA easily accepted in its Reopening Denial that Mouns’s

motion to reopen was supported by genuinely new evidence, and it then engaged in a claim-

by-claim analysis to determine whether that evidence was material and sufficiently

demonstrated statutory eligibility for the relief sought.

Furthermore, the statutory eligibility issues considered in the Reopening Denial —

including the questions of whether Mouns had sufficiently demonstrated a “well-founded

fear” and “clear probability” of persecution for purposes of asylum and withholding of

removal — necessitated an exercise of the BIA’s judgment. Cf. L-O-G-,

(recognizing that a similar exercise of judgment was required to determine

whether L-O-G- and her daughter had established statutory eligibility for suspension of

deportation by sufficiently demonstrating “extreme hardship”). Consequently, the BIA’s

analysis of Mouns’s statutory eligibility was just the type of analysis deemed by L-O-G- to

be well suited for the “reasonable likelihood” standard. See

(recognizing that the

25 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 26 of 31

“reasonable likelihood” standard usually applies where “ruling on a motion to reopen

requires the exercise of judgment regarding eligibility for the relief sought”).

Without explanation or legitimate reason, however, the BIA instead utilized the

more stringent Coelho standard in the Reopening Denial and then stubbornly ratified that

decision in the Reconsideration Denial. As such, the BIA defied its own precedents and

thereby abused its discretion.

2.

Although the Attorney General, as the respondent in this Court, seeks to sway us

otherwise, we are not convinced by his arguments. The first contention of note is based on

the Reconsideration Denial’s citation to our Wanrong Lin decision (along with its own

Coelho and S-Y-G- decisions) in ratifying the Reopening Denial’s use of the Coelho

standard. According to the Attorney General, the BIA is bound by Wanrong Lin to treat

the Coelho standard as the generally applicable reopening standard in cases within this

Circuit, and the Reconsideration Denial’s citation to Wanrong Lin was an acknowledgment

by the BIA that is so.

To be sure, Wanrong Lin invoked the Coelho standard without mentioning the

“reasonable likelihood” standard or specifying any special, adverse considerations

presented by Wanrong Lin’s case. See Wanrong Lin,

(briefly reciting that

a reopening movant “carries a ‘heavy burden,’” in that “he or she must show that ‘the new

evidence offered would likely change the result in the case’” (quoting Coelho,

)). But no fair reading of Wanrong Lin leads to the conclusion that we were

somehow holding that the Coelho standard is the generally applicable reopening standard

26 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 27 of 31

or that we were otherwise binding the BIA to treat it as such in cases within this Circuit.

Rather, it is clear that Wanrong Lin was simply reciting what we understood to be the BIA

standard relevant to the particular matter before us — a standard that went unchallenged

and that there was good reason to apply because of the many similarities between Wanrong

Lin and S-Y-G-.

Another of the Attorney General’s unpersuasive arguments is based on the fact that

in the BIA decisions applying the Coelho standard (Coelho and S-Y-G-), the relief sought

had previously been denied. But in the BIA decisions applying the “reasonable likelihood”

standard (Rodriguez-Vera, L-O-G-, and S-V-), the relief sought was being pursued for the

first time. Moreover, to illustrate cases that “do not present the[] special, adverse

considerations [presented by Coelho],” the BIA gave the example in L-O-G- of a movant

“seeking previously unavailable relief” who “has not had an opportunity to present her

application before the [IJ].” See L-O-G-,

.

As the Attorney General would have it, the Coelho standard is therefore applicable

every time a movant seeks to reopen his immigration proceedings to reapply for the same

relief that he was previously denied. Under that theory, the BIA properly used the Coelho

standard in the Reopening Denial because Mouns was seeking to reapply for the previously

denied relief of asylum and withholding of removal.

The Attorney General’s theory cannot, however, withstand scrutiny. First of all, the

special, adverse considerations justifying the use of the Coelho standard in both Coelho

and S-Y-G- went beyond the mere fact that the movants were seeking to pursue previously

denied relief. See L-O-G-,

(referring to the “egregious factors” and

27 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 28 of 31

“dilatory tactics” present in Coelho). Moreover, if the BIA meant to rule that there are

special, adverse considerations justifying the use of the Coelho standard every time a

reopening movant seeks to pursue previously denied relief, the BIA never would have had

to talk about “special, adverse considerations” at all. Rather, it simply could have said that

if the relief sought was previously denied, the Coelho standard applies.

And perhaps most importantly, it would be nonsensical for the Coelho standard to

apply every time a reopening movant — like Mouns — seeks to reapply for asylum and

withholding of removal based on changed country conditions. A flat rule that such cases

always present special, adverse considerations would be wholly at odds with the special,

favorable treatment that Congress has bestowed upon them. Again, by statute, a motion to

reopen is not subject to the usual time and number limits where the movant is pursuing

asylum or withholding of removal based on changed country conditions. See 8 U.S.C.

§ 1229a(c)(7)(C)(ii). And the Attorney General’s own regulations specify that the

exception extends to reopening movants who raise changed country conditions to “reapply

for” previously denied relief. See

(c)(3)(ii) (emphasis added). In these

circumstances, the Attorney General has failed to convince us that the BIA acted

appropriately in the Reconsideration Denial by ratifying the Reopening Denial’s use of the

Coelho standard against Mouns.

3.

To the extent that Mouns suggests that our M.A. decision establishes the “reasonable

likelihood” standard as the generally applicable reopening standard, we disagree with him.

Similar to Wanrong Lin’s recitation of the Coelho standard, M.A. simply recognized the

28 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 29 of 31

“reasonable likelihood” standard as the BIA standard pertinent to the matter at hand. See

M.A., 899 F.2d at 310 (relating, without questioning, that the “reasonable likelihood”

standard requires a reopening movant to show a reasonable likelihood both “that the

statutory requirements for the relief sought are satisfied” and “that a grant of [any

discretionary relief sought] may be warranted as a matter of discretion” (emphasis and

internal quotation marks omitted) (citing Rodriguez-Vera,

)). The

general applicability of the “reasonable likelihood” standard is established by the BIA’s

own decisions, including Rodriguez-Vera and L-O-G- — not by our decision in M.A.

We further disagree with Mouns’s assertion that the special, adverse considerations

that caused the BIA to devise the more stringent standard in Coelho included the movant’s

criminal history. That theory is belied by the plain text of both Coelho and L-O-G-,

blaming the Coelho standard entirely on Coelho’s abusive litigation tactics. Moreover,

Mouns’s theory is inconsistent with Rodriguez-Vera and S-V-, wherein the movants also

had significant criminal histories — involving murder, grand theft, and robbery — yet the

BIA applied the “reasonable likelihood” standard.

4.

Finally, we 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 —

29 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 30 of 31

the BIA cannot now arbitrarily use the Coelho standard as if it were the generally applicable

one. 9

We do not — and have not been called upon to — decide any other issues, including

the overall propriety of the “reasonable likelihood” and Coelho standards as devised by the

BIA in its decisions, or the propriety of the Attorney General’s regulatory scheme and its

broad grant of discretion to the BIA with respect to motions to reopen. Those include

issues on which we and other federal courts have traditionally deferred to the agency

pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

(1984), but on which we may no longer accord Chevron deference under the Supreme

Court’s recent decision in Loper Bright Enterprises v. Raimondo,

(2024)

(overruling Chevron). We thus leave a bevy of questions for another day.

9 Notably, other courts of appeals have taken different views of the “reasonable likelihood” and Coelho standards. See, e.g., Fonseca-Fonseca v. Garland,

(9th Cir. 2023) (concluding that the “reasonable likelihood” standard applies to the statutory eligibility inquiry and that the Coelho standard applies to any discretionary entitlement inquiry); Caballero-Martinez v. Barr,

(8th Cir. 2019) (indicating that the Coelho standard applies whenever the relief sought was previously denied); Hernandez-Perez v. Whitaker,

(6th Cir. 2018) (suggesting that the “reasonable likelihood” and Coelho standards are one and the same).

30 USCA4 Appeal: 22-1368 Doc: 40 Filed: 08/28/2024 Pg: 31 of 31

III.

Pursuant to the foregoing, we grant Mouns’s petition for review, vacate the BIA’s

Reconsideration Denial, and remand for such other and further proceedings as may be

appropriate.

PETITION GRANTED

31