Clarifying the Prima Facie Standard for Reopening Removal Proceedings Based on Subsequent Bona Fide Marriages

Introduction

This case arises from petitions for review brought by Ansar Hassen Hussen, an Ethiopian national subject to removal proceedings, after his applications for asylum, withholding of removal, and Convention Against Torture (CAT) relief were denied by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA). While his first petition challenged the adverse credibility finding and denial of relief, Hussen subsequently married a U.S. citizen and sought to reopen his removal proceedings to adjust status based on that marriage. He filed successive motions to reopen, offering extensive documentary and testimonial evidence of the bona fides of his marriage. The BIA denied those motions, applying what the Fourth Circuit found to be an incorrect legal standard. The Fourth Circuit’s published opinion (dated April 22, 2025) resolves three consolidated petitions: it denies the first petition, grants the second (vacating and remanding the BIA’s denial of the first motion to reopen), and dismisses the third as moot.

Summary of the Judgment

The Fourth Circuit’s decision has three principal components:

Petition No. 23-1047: The Court upheld the adverse credibility determination by the IJ and the BIA, finding that substantial evidence supports the IJ’s specific findings of implausibility concerning Hussen’s account of political persecution in Ethiopia. Accordingly, the first petition was denied.
Petition No. 23-2197: The Court granted Hussen’s second petition for review, holding that the BIA abused its discretion by misapplying Matter of Velarde and related statutes when it required Hussen to meet the ultimate “clear and convincing evidence” standard for a bona fide marriage at the reopening stage. Instead, the Court clarified, a movant need only show a prima facie case—a “strong likelihood” that the statutory requirements for adjustment of status will be satisfied. The Court vacated the BIA’s order denying the motion to reopen and remanded for reconsideration under the correct standard.
Petition No. 24-1257: Because the remand on the second petition renders the third petition (which challenged the BIA’s denial of a second motion to reopen and request for sua sponte reopening) moot, the Court dismissed it.

Analysis

Precedents Cited

Matter of Velarde-Pacheco (23 I. & N. Dec. 253 (BIA 2002)): Establishes the standard for motions to reopen removal proceedings when based on a marriage entered after the commencement of deportation or removal proceedings. The BIA in Velarde specified five factors, including that the movant present “clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide.”
Matter of Shaar (20 I. & N. Dec. 666 (BIA 1993)): Bars untimely or successive motions to reopen unless a narrow exception is met.
8 U.S.C. § 1255(e)(3): Defines Congress’s statutory scheme permitting an alien to adjust status based on a bona fide marriage entered during removal proceedings, provided the alien demonstrates by “clear and convincing evidence” that the marriage was not procured to evade immigration laws.
8 C.F.R. § 204.2(a)(1)(iii)(B): Lists illustrative documents (joint leases, affidavits, property records, etc.) evidencing a bona fide marital relationship.
INS v. Abudu (485 U.S. 94 (1988)): Clarifies that the BIA may deny a motion to reopen where the movant fails to establish a prima facie case for the underlying relief sought.
Ex parte Chan Shee (236 F. 579 (N.D. Cal. 1916)): Early predecessor recognizing judicial authority to reopen deportation proceedings for evidence of marital relationships with U.S. citizens.

Legal Reasoning

The Fourth Circuit’s central legal holding concerns the standard for reopening under Matter of Velarde. The BIA’s error lay in conflating two distinct evidentiary thresholds:

Prima Facie Threshold (Reopening Stage): The movant must show a “strong likelihood” that he can meet the statutory requirements for adjustment of status—that is, a reasonable prospect of demonstrating by clear and convincing evidence that the marriage is bona fide. This threshold is intended to weed out frivolous motions without forcing movants to meet the ultimate standard before they have the benefit of a reopened record and adjudicatory process.
Ultimate Burden (Final Adjudication): Once proceedings are reopened and the record is complete, the applicant must actually prove by clear and convincing evidence that the marriage was entered in good faith and not for immigration purposes, per 8 U.S.C. § 1255(e)(3).

By instead requiring clear and convincing proof of bona fides at the motion-to-reopen stage, the BIA misapplied both its own precedent and the statutory scheme. The Court held that such legal error amounts to an abuse of discretion, warranting vacatur and remand for application of the correct prima facie standard.

Impact

This decision has significant implications for immigration practice:

It ensures consistent application of Matter of Velarde’s five-factor test and guards against imposing the ultimate burden prematurely.
It reinforces that the BIA’s discretionary decisions must adhere to the correct legal standards—errors of law constitute an abuse of discretion.
It provides clearer guidance to respondents and practitioners seeking to reopen removal proceedings after a marriage to a U.S. citizen.
It may reduce litigation over whether a movant has satisfied a shifting standard, fostering greater predictability in reopening motions.

Complex Concepts Simplified

Motion to Reopen: A request by an alien after a final removal order to present new, material evidence (e.g., a subsequent marriage) that could affect the outcome.
Prima Facie Case: An initial showing of facts sufficient to support the relief sought if uncontroverted—here, a “strong likelihood” of proving a bona fide marriage once proceedings are reopened.
Clear and Convincing Evidence: A heightened burden of proof requiring that the truth of the facts asserted is highly probable.
Bona Fide Marriage: A union entered into in good faith, with the intent to build a life together, not solely to gain immigration benefits.
Abuse of Discretion: A legal standard of review holding that a decision is unlawful if it is based on an incorrect legal rule or fails to apply governing precedent.

Conclusion

The Fourth Circuit’s decision in Ansar Hussen v. Pamela Jo Bondi resolves key questions about the evidentiary standard for reopening removal proceedings premised on a subsequent marriage to a U.S. citizen. By distinguishing the prima facie showing required at the motion-to-reopen stage from the ultimate burden at final adjudication, the Court reinstates a fair procedural framework aligned with Congress’s 1990 amendments and BIA precedent. This clarity promotes uniformity in the opening of removal proceedings to meritorious claims of adjustment of status, and underscores the principle that legal errors in BIA adjudications constitute an abuse of discretion, warranting vacatur and remand for proper application of the law.