BIA Says Judges Need Not Believe Motion to Reopen Declarations

Immigration judges no longer have to accept a sworn declaration as true just because nothing in it is impossible, the Board of Immigration Appeals ruled Oct. 19 in a precedent that directly rejects a long-standing Ninth Circuit rule for any motion to reopen. In Matter of J-E-D-C-, 30 I&N Dec. 162 (BIA 2026), the Board held that judges and the Board may weigh the reliability of a respondent’s affidavit using ordinary credibility factors, which changes the odds for the hundreds of thousands of people ordered deported without appearing in court who are trying to get their cases back.

The ruling bites hardest in the Western states covered by the Ninth Circuit, where judges have for decades had to treat the facts in a reopening affidavit as true unless they were “inherently unbelievable.” Elsewhere, it confirms that a declaration is evidence to be weighed, not a fact to be accepted.

A missed hearing and a declaration the judge did not believe

The case is ordinary, which is why it reaches so far. The respondent, a Mexican citizen, was personally served with a notice to appear in April 2024, with the hearing details explained in Spanish, according to the decision. He missed his Oct. 27, 2025, hearing and was ordered removed in absentia. Within the 180-day window the statute allows, he moved to reopen for “exceptional circumstances,” declaring that he had trouble communicating with the DHS officer, expected a later notice with a date, and had received mailed notices years earlier as an unaccompanied child.

The immigration judge found the declaration inherently unbelievable. The Board, in an opinion by Appellate Immigration Judge Volkert for a panel that included Chief Appellate Immigration Judge Malphrus, dismissed the appeal and used the case to announce a broader rule.

Why the Board set aside a federal appeals court’s rule

The Board ordinarily follows the law of the circuit where a case arises. Here it relied on its own precedent, Matter of Jauregui, for the principle that when circuit law conflicts with the Supreme Court, the Supreme Court controls. It identified that conflict in two decisions. In INS v. Abudu (1988), the Supreme Court reversed the Ninth Circuit and described the movant’s burden as “heavy,” comparing a motion to reopen to a criminal defendant’s motion for a new trial rather than a summary judgment motion. In Garland v. Ming Dai (2021), it held that the agency may find evidence credible and still find it unpersuasive.

The statute points the same way, the Board said: section 240(c)(7)(B) of the Immigration and Nationality Act requires affidavits or other evidence, but nothing makes an affidavit sufficient by default, a point it took from Judge VanDyke’s dissent in the Ninth Circuit’s Sept. 4, 2026, decision in Trigueros Quizar v. Blanche. Going forward, judges may test a declaration against the record using the credibility factors in sections 208(b)(1)(B)(iii) and 240(c)(4)(C), including consistency with other evidence and any inaccuracies, under the framework of Matter of I-S-M-, 29 I&N Dec. 811 (BIA 2026).

The in absentia caseload behind the ruling

The timing gives the decision unusual weight. In absentia orders have climbed every year since fiscal 2021, and the fiscal 2026 monthly average is the highest in the decade EOIR’s table covers, according to the agency’s published statistics. For most people with those orders, a motion to reopen supported by their own sworn account is the only route back into court.

Some of those orders go to people who never received proper notice or missed court for reasons outside their control. The new rule does not close that door, but it raises the price of walking through it.

What changes for respondents and their lawyers

A declaration alone is now a thin reed. The practical effect is that a reopening motion built on the respondent’s word will be judged against everything else in the file: the notice to appear, the officer’s certificate of service, address records and prior filings. Motions that attach independent proof, such as postal records, medical documentation, statements from people who can confirm the account, or evidence of a language barrier, are far more likely to survive a judge’s skepticism.

The fight moves to the Ninth Circuit. The ruling is binding on immigration judges nationwide, but the Ninth Circuit will decide on petitions for review whether its own precedent truly conflicts with Abudu and Ming Dai. Courts give the Board no deference on how to read Supreme Court decisions. Under the Ninth Circuit’s own rules, a three-judge panel can depart from circuit precedent only when intervening Supreme Court authority is clearly irreconcilable with it, and Abudu came first, so the open question is whether a panel will treat Ming Dai as enough or leave the issue to an en banc court. Until then, expect Ninth Circuit petitioners to argue that the agency applied the wrong legal standard.

This article is for general information and is not legal advice.

Sources

• Matter of J-E-D-C-, 30 I&N Dec. 162 (BIA 2026), decided Oct. 19, 2026
• EOIR, Attorney General and BIA Precedent Decisions, Volume 30
• EOIR Adjudication Statistics, In Absentia Removal Orders (data generated July 24, 2026)

About the Author

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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