BIA Holds That A Supplemental Filing To A Motion To Reopen That Raises Claims That Are Fundamentally Different From Those Raised In The Original Motional Is Treated As A Separate Motion.
On May 23, 2025, Attorney General Bondi designated the instant decision as precedent in all proceedings involving the same issue(s). The matter was previously before the BIA in July 2021, when it dismissed Respondent’s appeal of a decision by the Immigration Judge (IJ) denying his application for cancellation of removal per INA §240A(b)(1). Respondent moved to reopen proceedings; DHS did not respond to his motion.
The BIA initially explained that a motion to reopen requires both prima facie eligibility for relief and a proffer of material evidence that was unavailable and could not have been discovered or presented at the former hearing. Respondent here requested reopening, contending that new, previously unavailable evidence established that 1) his prior counsel offered ineffective assistance before the IJ; 2) he had a qualifying relative for purposes of cancellation of removal; and 3) he was prima facie eligible for Violence Against Women Act (VAWA) relief because of spousal abuse that accrued after his previous hearing.
The decision next set forth that Respondent had been admitted to the U.S. as a visitor in April 2008, that his U.S. citizen daughter was born in August 2011, but that he married a women – not her biological mother – in November 2012. He filed to adjust status based on this marriage but the couple divorced in July 2018 and USCIS subsequently denied the request. Respondent was then placed into removal proceedings in August 2020 after being arrested for harassment. In February 2021, the IJ denied his cancellation application, holding that he lacked good moral character, had not proven his daughter was a qualifying relative or “would experience exceptional and extremely unusual hardship upon his removal” and that he did not merit relief in the exercise of discretion. He and his ex-wife then reconciled and remarried in May 2021 and 2 months later the Board affirmed the IJ’s determinations on appeal.
Respondent timely filed to reopen in October 2021, claiming ineffective assistance by former counsel and that new evidence confirmed his paternity of his daughter. His motion also asked for remand so that he could apply for adjust status and pursue a new cancellation case based on his spouse. Then, in February 2023, Respondent filed a “supplement” to his motion, withdrawing his cancellation application and now requesting remand to either adjust or obtain cancellation under VAWA, submitting evidence that he claimed established that he had been abused by his wife during both of their marriages. In May 2023, he filed a letter from USCIS, dated January 2023, stating that his VAWA self-petition established a “prima facie case for classification.”
Regarding his claim of ineffective assistance on appeal, Respondent argued that, before the IJ, his attorney failed to communicate with him; adequately prepare his cancellation case; or instruct him to apply for asylum, withholding and CAT protection. He contended that new, previously unavailable evidence filed with the motion to reopen proved his eligibility for these forms of relief and protection. In response, the BIA noted that the Third Circuit Court of Appeals had held that strict adherence to the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) was not necessary “as long the respondent fulfills the purposes behind those steps through substantial compliance.” However, it concluded that Respondent had not substantially complied with Lozada’s procedural steps for his claim against his former attorney “or otherwise fulfilled the purpose behind those requirements.” Specifically, Respondent had not registered a State Bar complaint or adequately explained his failure to do so.
While the motion contained a letter from Respondent’s wife to “the relevant disciplinary counsel” alleging that prior counsel had demanded more money but did not file a completed cancellation application and failed to adequately communicate with her and her husband, and the opinion acknowledged that Respondent was illiterate, the Board found “no evidence that the disciplinary counsel was ever given…[R]espondent’s own account of the relevant facts” of the former attorney’s representation; nor had Respondent and his wife’s affidavit, which accompanied the motion, described his involvement in drafting the letter. As the affidavit raised allegations not found in the letter, including that the former attorney did not advise Respondent to apply for fear-based relief, the record failed to confirm that disciplinary counsel had been made aware of these allegations.
Additionally, in October 2021, a disciplinary counsel representative had mailed Respondent’s current attorney requesting more documentation and information to aid the investigation of prior counsel. Yet neither the motion to reopen nor the subsequent supplement explained whether counsel responded to this request or, if not, why not. A central purpose of the bar complaint requirement, stated the BIA, is to allow disciplinary authorities to assess whether “attorney misconduct exists and needs to be addressed.” But Respondent had not “adequately explained whether he aided in this purpose.” Therefore, reopening was not warranted due to the claim of ineffective assistance.
As to the cancellation of removal application, the only new evidence submitted with the motion that was previously unavailable was a July 2021 paternity test result confirming Respondent to be the biological father of his U.S. citizen daughter. Yet, Respondent failed to establish that this evidence was material or would be change the result in this case, as the IJ had held, and the Board affirmed on appeal, that even assuming he established his daughter’s paternity, “his removal would not cause her exceptional and extremely unusual hardship.” Further, found the opinion, this evidence was actually available at the time of the February 2021 merits hearing and merely corroborated Respondent’s testimony.
Additionally, concluded the BIA, the motion to reopen did not address the IJ’s denial of cancellation in the exercise of discretion. The IJ had, in fact, alternatively considered Respondent’s daughter to be a positive discretionary factor despite the issue of paternity and still found the negative factors outweighed the positive. As a result, Respondent had not established prima facie eligibility for cancellation and there was thus no need for an assessment of whether this new evidence, purporting to show good moral character, warranted reopening.
Lastly, Respondent argued for reopening because his February 2023 supplement to his motion confirmed his prima facie eligibility to self-petition for adjustment and apply for cancellation as the “battered spouse of a United States citizen since the time of his merits hearing .” The decision explained that a respondent may file only one motion to reopen as of right but that this limit does not apply where the basis for the motion is to apply for VAWA relief. Such motions are timely if the petition is filed within one (1) year of a final administrative order of removal. Here, the BIA entered a final removal order in July 2021, and Respondent timely moved to reopen this decision; the supplement requesting relief under VAWA was not filed until more than 18 months after the final order had elapsed. The contents of the two (2) filings were “wholly unrelated,” concluded the opinion, one claiming battery or extreme cruelty by a spouse, the other that this same spouse had petitioned for permanent residence on behalf of Respondent or would suffer a very high level of hardship if he were removed. The Board therefore held that the supplement was, in fact, “a second motion to reopen that was not timely filed within one (1) year of the final administrative order of removal.”
Further, noted the decision, the BIA may exercise discretion to waive the time limit on motions to reopen to apply for adjustment or cancellation under VAWA if the movant establishes extraordinary circumstances or extreme hardship to his child. Here, Respondent had not set forth any such circumstances but contended his daughter would suffer extreme hardship upon his removal. Yet the Board would not assess her prospective hardship because it denied the motion in the exercise of discretion. Respondent had failed to submit sufficient evidence establishing a likelihood of a favorable exercise of discretion on any VAWA-related application in reopened proceedings. The BIA had adopted and affirmed the IJ’s cancellation denial in the exercise of discretion based on “several negative factors,” including Respondent’s conviction for harassment where he intimidated the victim by brandishing a food-long butcher’s knife; he had not explained how any new evidence submitted mitigated the “significant adverse discretionary factors” in his case. Reopening was therefore not appropriate and the motion to reopen was therefore denied. Matter of D-E-B-, 29 I&N Dec. 83 (BIA 2025).
