Affidavits Aren’t Enough: Herrera-Ramirez v. Bondi and the Evidentiary Threshold for Motions to Reopen

Introduction

Herrera-Ramirez v. Bondi, No. 24-9549 (10th Cir. Jul. 8, 2025), marks an important clarification of the quantum and quality of evidence required when a non-citizen seeks to reopen removal proceedings before the Board of Immigration Appeals (BIA).

Enrique Herrera-Ramirez, a Mexican national who entered the United States without admission in 2008, requested cancellation of removal under 8 U.S.C. § 1229b(b)(1). After the Immigration Judge (IJ) and the BIA found he failed to establish the requisite “exceptional and extremely unusual hardship” to his U.S.-citizen son, he moved to reopen, asserting the child’s worsening eye condition. The BIA denied reopening, and Herrera-Ramirez petitioned the Tenth Circuit for review.

The Tenth Circuit denied the petition, concluding that the BIA did not abuse its discretion, that affidavits unsupported by objective evidence are insufficient to meet the prima facie burden for reopening, and that § 1003.2(c) places the evidentiary onus squarely on the movant—not on the BIA.

Summary of the Judgment

Standard of Review: BIA denials of motions to reopen are reviewed for abuse of discretion.
Key Holding: The BIA properly required “meaningful and probative evidence” beyond a single affidavit to demonstrate prima facie eligibility for cancellation of removal; its refusal to credit unsupported assertions about medical need and Medicaid coverage was neither improper nor a heightened standard.
Regulatory Clarification: 8 C.F.R. § 1003.2(c)(1) imposes the duty on the movant to present new facts supported by evidence; § 1003.2(a) permits the BIA to deny even meritorious motions in its discretion.
Outcome: Petition for review denied; prior removal order stands.

Analysis

Precedents Cited

Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir. 2004)
– Framed the abuse-of-discretion standard: reversal only where the agency offers no rational explanation, departs from policy, or relies on conclusory statements.
In re L-O-G-, 21 I.&N. Dec. 413 (BIA 1996)
– Established that a motion to reopen must demonstrate “prima facie eligibility” for the requested relief.

These authorities guided the court’s assessment of whether the BIA required too much evidence. The panel found the BIA acted within the constraints defined by both cases and by the language of § 1003.2.

Legal Reasoning

The court’s reasoning unfolds in three steps:

Burden Allocation (Regulatory Text):
The panel emphasized that § 1003.2(c)(1) states a motion “shall be supported by affidavits or other evidentiary material.” Reading this with § 1003.2(a), the court held the burden rests solely on the applicant; the BIA can deny even a colorable motion.
Evaluating Evidence:
The only “new” evidence was an affidavit from Herrera-Ramirez’s wife alleging impending surgery not covered by Medicaid. The court agreed with the BIA that unsupported references to Medicaid policy are not “probative evidence.” Because no medical records, insurance documentation, or expert statements were offered, the movant failed to establish prima facie hardship.
No Heightened Standard:
The petitioner argued that the BIA imposed a requirement to prove the case, rather than merely show potential. The court rejected this, noting the BIA used the traditional prima facie test; the motion failed because it lacked any objective corroboration, not because of an elevated threshold.

Impact on Future Cases

Evidentiary Rigor: Practitioners must submit documentary proof—medical records, insurance denials, expert affidavits—when alleging medical hardship. Bare assertions, even under oath, are insufficient.
Narrowing the Use of Affidavits: While affidavits remain acceptable, Herrera-Ramirez underscores that they must be corroborated when they recite technical or financial facts.
Strategic Timing: Applicants are incentivized to gather complete evidence before the initial IJ hearing; subsequent “new evidence” faces skeptical scrutiny.
Precedential Reach: Though unpublished and non-binding, the order serves persuasive authority within the Tenth Circuit and beyond, particularly given its textual analysis of § 1003.2.

Complex Concepts Simplified

Motion to Reopen: A request to the BIA to re-start proceedings based on new facts that did not exist or were not available at the prior hearing.
Cancellation of Removal (Non-LPR): Discretionary relief allowing certain non-permanent residents to remain in the U.S. if they show (1) 10 years of continuous presence, (2) good moral character, and (3) removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S.-citizen or LPR spouse, parent, or child.
Exceptional and Extremely Unusual Hardship: A high standard—hardship must be substantially beyond that normally expected when a close family member is deported.
Prima Facie Eligibility: The applicant’s evidence, if believed, would be sufficient to grant relief; it is a threshold showing, not a final merits determination.
Abuse of Discretion Review: An appellate court will not reverse unless the agency’s action is irrational, unexplained, or contrary to law.

Conclusion

Herrera-Ramirez v. Bondi illuminates a crucial practical truth for immigration advocates: affidavits alone rarely suffice to reopen removal proceedings when medical or financial hardship is asserted. The Tenth Circuit reaffirmed that the movant must provide concrete, corroborated evidence establishing prima facie relief—and that the BIA retains broad discretion to deny reopening even when such evidence is offered.

In the broader legal landscape, the case promotes evidentiary discipline and clarifies that § 1003.2(c) is not a mere procedural formality but a substantive gatekeeping rule. Future litigants should view this decision as a roadmap: marshal objective documentation early, anticipate questions about authenticity and relevance, and recognize that unsupported statements—however heartfelt—will rarely meet the “exceptional and extremely unusual hardship” bar.