Clarifying the Distinction Between Motions to Reopen and Reconsider and the Prima-Facie Hardship Standard After Wilkinson: A Comment on Wong v. Bondi (2d Cir. 2025)

Introduction

On 7 May 2025 the United States Court of Appeals for the Second Circuit issued a non-precedential summary order in Wong v. Bondi, No. 23-6396, denying a petition for review of the Board of Immigration Appeals (BIA) decision that had refused to reopen removal proceedings so that the petitioners could seek cancellation of removal. Although labelled as a “summary order,” the opinion is noteworthy for three reasons: (1) it crisply differentiates between a “motion to reopen” and a “motion to reconsider,” (2) it reiterates the demanding exceptional and extremely unusual hardship requirement for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D), and (3) it synthesises the Supreme Court’s recent decision in Wilkinson v. Garland, 601 U.S. 209 (2024), regarding jurisdiction over mixed questions of law and fact.

The petitioners, married Malaysian nationals of Chinese descent, argued that the BIA should have treated their filing as a motion to reconsider—thus employing a more lenient standard—and that the Board erred in concluding they failed to make a prima-facie showing of hardship to their U.S.-citizen children. The Second Circuit rejected both contentions and denied the petition in its entirety.

Summary of the Judgment

  • Characterisation of the Motion. The court affirmed the BIA’s classification of the filing as a motion to reopen—not a motion to reconsider—because the petitioners sought a brand-new form of relief (cancellation of removal) rather than re-examination of a prior legal error.
  • Prima-Facie Standard. Applying INS v. Abudu, 485 U.S. 94 (1988), and circuit precedent (Jian Hui Shao, 546 F.3d 138), the court held that a movant must demonstrate a “realistic chance” of ultimately meeting the statutory hardship requirement. The petitioners presented almost no evidence—only their children’s birth certificates— and therefore failed.
  • Jurisdiction and Standard of Review. Because cancellation of removal is a discretionary benefit, the Second Circuit’s review is cabined to constitutional or legal questions (8 U.S.C. § 1252(a)(2)(B),(D)). Relying on Wilkinson, the panel emphasized a deferential posture for mixed but primarily factual determinations.
  • Bias Allegation. The petitioners’ claim of systemic bias in the wake of Pereira v. Sessions, 585 U.S. 198 (2018), was summarily rejected as unsupported; adverse rulings alone rarely demonstrate bias (Chen v. Chen Qualified Settlement Fund).

Accordingly, the petition for review was denied; all stays and ancillary motions were vacated.

Analysis

Precedents Cited and Their Influence

  • Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83 (2d Cir. 2001) – Provides the foundational rule that a motion’s substance, not its caption, governs its classification. This was the cornerstone for re-labelling the petitioners’ filing as a motion to reopen.
  • INS v. Abudu, 485 U.S. 94 (1988) – Establishes three independent grounds on which the BIA may deny reopening: (i) failure to establish a prima-facie case, (ii) failure to introduce previously unavailable material evidence, or (iii) discretionary denial. Here, ground (i) was decisive.
  • Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) – Supplies the “realistic chance” language for prima-facie review; the court relied on this to calibrate the hardship assessment.
  • In re Monreal-Aguinaga, 23 I.&N. Dec. 56 (BIA 2001) – Defines the “exceptional and extremely unusual hardship” benchmark and lists relevant factors (age, health, education, special needs). The Second Circuit imported these criteria wholesale.
  • Wilkinson v. Garland, 601 U.S. 209 (2024) – Clarifies that the application of a statutory standard to established facts is a reviewable legal question unless primarily factual. The panel used Wilkinson to delineate its own jurisdictional boundary.
  • Garcia Carrera v. Garland, 117 F.4th 9 (2d Cir. 2024) – Extends Wilkinson within the circuit; cited to reconfirm the mixed-question analytic framework.
  • Chen v. Chen Qualified Settlement Fund, 552 F.3d 218 (2d Cir. 2009) – Furnishes the rule that claims of bias must arise from extra-judicial sources, not mere adverse outcomes.

Legal Reasoning of the Court

The court’s logic unfolds in three sequential inquiries:

  1. Characterisation Inquiry. Under Ke Zhen Zhao, what relief is actually being sought? Because the petitioners wished to file for a form of relief not previously pleaded (cancellation of removal), the court agreed with the BIA that this could only be achieved through reopening (§ 1229a(c)(7)), not reconsideration (§ 1229a(c)(6)).
  2. Jurisdictional Inquiry. The panel noted that § 1252 partitions review of discretionary relief, limiting the court to legal or constitutional questions. The Wilkinson template was applied: where the Board applied the hardship standard to scant facts, the question was “primarily factual,” thus warranting deference.
  3. Prima-Facie Merit Inquiry. Guided by Abudu and Jian Hui Shao, the panel assessed whether the movants showed a “realistic chance” of meeting § 1229b(b)(1)(D). Absence of affidavits about medical conditions, educational disruptions, or special needs doomed the claim. Cultural discrimination allegations lacked specificity, rendering them inadequate under § 1229a(c)(7)(B)’s evidentiary requirement.

Potential Impact of the Decision

Although summary orders lack formal precedential force, Wong v. Bondi is likely to exert persuasive value in three ways:

  • Strategic Drafting of Post-Order Motions. Practitioners may need to frame filings more carefully—designating in bold the statutory basis and attaching robust new evidence—lest their motions be recast as “reopenings” subject to stringent time and number limitations.
  • Heightened Evidentiary Expectations. The case underscores that at the motion stage, applicants must submit substantive documentation (medical records, expert affidavits, country-condition reports) rather than defer those showings to the merits hearing.
  • Circuit Guidance on Wilkinson. By citing Wilkinson for the proposition that mixed questions can be jurisdictionally barred when “primarily factual,” the panel signals that litigants cannot couch pure factual disagreements as “legal” to secure review.

Complex Concepts Simplified

  • Motion to Reopen vs. Motion to Reconsider. Think of “reconsider” as asking the court to look again at the same record and “reopen” as asking the court to accept new evidence or consider new relief. The former challenges legal analysis; the latter restarts factual inquiry.
  • Exceptional and Extremely Unusual Hardship. Not merely “serious” hardship but hardship well beyond what any family ordinarily faces when a member is deported. Examples: a child with a life-threatening illness requiring U.S. medical care, or a child with severe disabilities lacking support abroad.
  • Prima-Facie Showing. A threshold demonstration akin to clearing airport security: you need enough evidence to justify further proceedings but not the entire case; however, Wong illustrates that the evidentiary bar remains real.
  • Mixed Question of Law and Fact. When a legal standard (e.g., “hardship”) is applied to concrete facts (child’s health records), the result is a mixed question. Under Wilkinson, appellate courts defer if the mix tilts heavily toward factual assessment.

Conclusion

Wong v. Bondi reminds immigration advocates that labels matter, evidence matters more, and jurisdictional gates remain narrow. By confirming that a request for new relief is a motion to reopen and by re-emphasising the strict prima-facie burden under § 1229b(b)(1)(D), the Second Circuit—anchored by post- Wilkinson jurisprudence—signals that bare assertions or recycled asylum affidavits will not suffice. The decision, though non-precedential, offers a practical roadmap: (1) marshal detailed, child-centric evidence; (2) clarify the statutory basis of any post-judgment motion; and (3) frame legal questions thoughtfully to avoid jurisdictional pitfalls. In the broader legal tapestry, the ruling fortifies the separation between discretionary fact-finding reserved to the agency and the limited legal oversight afforded to the courts.