Concrete Proof, Not Promissory Assertions: Sixth Circuit Clarifies “Means to Depart” Showing for Voluntary Departure Motions to Reopen

Introduction

In Juan Carlos Pastor-Hernandez v. Pamela Bondi, the U.S. Court of Appeals for the Sixth Circuit (opinion by Judge Murphy, joined by Judges Readler and Bloomekatz) denied a petition for review from a denial by the Board of Immigration Appeals (BIA) of a motion to reopen removal proceedings. The petitioner, a Guatemalan national who had earlier been ordered removed after losing on asylum-related claims, sought to reopen his case to request voluntary departure in light of the Supreme Court’s decision in Niz-Chavez v. Garland, which affected the physical-presence eligibility requirement for that relief.

The core dispute centered on whether the BIA applied the correct legal standard when it rejected the motion to reopen for lack of sufficient proof that the petitioner had the “means to depart” the United States—a statutory prerequisite to voluntary departure. The petitioner asserted that his affidavit stating he was in the process of renewing his passport should suffice at the motion-to-reopen stage to make a prima facie showing of eligibility. The BIA found the showing conclusory and unsupported by documentation; the Sixth Circuit agreed.

Summary of the Opinion

The court denied the petition for review. It held that:

The court had jurisdiction to review the legal question whether the BIA applied the correct standard to a motion to reopen—even though factual and discretionary aspects of voluntary departure decisions are ordinarily unreviewable.
The BIA did not apply the wrong standard. It recognized that the petitioner needed only to make a prima facie showing on a motion to reopen, not to conclusively prove entitlement to relief.
Even assuming (without deciding) that a motion to reopen may rely on “future facts” to be proven at a later merits hearing, the petitioner’s bare assertion that he was “in the process” of securing a passport, without any documentary corroboration or specific factual detail, was too conclusory to establish a prima facie case that he could satisfy the “means to depart” requirement.
The court rejected the petitioner’s reliance on a summary-judgment analogy from Trujillo Diaz v. Sessions, explaining that motions to reopen are more akin to motions for relief from judgment and, in any event, conclusory affidavits would fail even under a summary-judgment standard.

Analysis

Precedents Cited and Their Influence

Niz-Chavez v. Garland, 593 U.S. 155 (2021): The Supreme Court held that a single, complete “notice to appear” is required under the INA. Because the petitioner’s initial notice lacked the hearing date, it did not qualify as a valid “notice to appear.” This meant the petitioner could satisfy the one-year physical-presence requirement for voluntary departure, potentially making that form of relief newly available—but only if he could meet the other statutory prerequisites.
8 U.S.C. § 1229c(b)(1) (Voluntary Departure): Establishes eligibility criteria: (A) one-year physical presence before the valid notice to appear; (B) good moral character; (C) no specified criminal deportability; and (D) clear and convincing evidence of the “means to depart” and the intent to do so. The Sixth Circuit emphasized that even when eligibility is shown, the Attorney General “may” grant the relief, underscoring discretionary authority.
Monsalvo v. Bondi, 145 S. Ct. 1232 (2025): Cited for the proposition that voluntary departure is discretionary, and for the reviewability of legal questions notwithstanding general limits on review of discretionary relief.
8 C.F.R. § 1240.26(c)(2): Requires a “passport or other travel documentation sufficient to assure lawful entry” into the receiving country to satisfy the “means to depart” element. This regulatory baseline framed the evidentiary gap in petitioner’s showing (no passport and no proof of concrete progress toward obtaining one).
INS v. Abudu, 485 U.S. 94 (1988) and INS v. Doherty, 502 U.S. 314 (1992): Motions to reopen are disfavored. The movant bears a “heavy burden” and must present affidavits or evidentiary material establishing a prima facie case for the new relief sought.
8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c)(1): A motion to reopen must state the “new facts” to be proven at a hearing and must include the “application for relief and all supporting documentation.” The Sixth Circuit read these provisions as requiring concrete evidentiary support at the motion stage, not mere promises.
Trujillo Diaz v. Sessions, 880 F.3d 244 (6th Cir. 2018): Defined a prima facie case as showing a “reasonable likelihood” of eligibility. The court distinguished Trujillo Diaz (which involved detailed, specific affidavits about gang targeting) from this case, where the affidavit was conclusory and unsupported by documents.
Yousif v. INS, 794 F.2d 236 (6th Cir. 1986); Dieng v. Barr, 947 F.3d 956 (6th Cir. 2020); Alizoti v. Gonzales, 477 F.3d 448 (6th Cir. 2007); Thawatchai Foythong v. Holder, 743 F.3d 1051 (6th Cir. 2014): These cases frame the prima facie showing as one that the statutory requirements “have been met,” suggesting a time-of-motion focus. The court flagged but did not resolve the broader legal question whether “future facts” can satisfy the prima facie standard for reopening.
Kucana v. Holder, 558 U.S. 233 (2010) and Mata v. Lynch, 576 U.S. 143 (2015): Establish abuse-of-discretion review for denials of reopening and affirm courts’ jurisdiction to review such denials, though with deference to the BIA’s discretion and process.
Patel v. Garland, 596 U.S. 328 (2022); 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i): Restrict judicial review of discretionary decisions and factual findings underlying certain forms of relief, including voluntary departure. The court navigated around these limits by identifying the petitioner’s claim as a legal question (whether the BIA applied the correct standard).
Wilkinson v. Garland, 601 U.S. 209 (2024): Confirms that “questions of law” in 8 U.S.C. § 1252(a)(2)(D) encompass mixed questions applying law to facts, reinforcing jurisdiction to review the petitioner’s legal-standard challenge.
Dada v. Mukasey, 554 U.S. 1 (2008): Provides background on the nature and mutual benefits of voluntary departure (reducing government removal costs; alleviating penalties for the noncitizen).
Other Sixth Circuit authorities (e.g., Hernandez v. Garland, 59 F.4th 762 (6th Cir. 2023); Alhaj v. Holder, 576 F.3d 533 (6th Cir. 2009); Valadez-Lara v. Barr, 963 F.3d 560 (6th Cir. 2020); Zhou v. Bondi, 134 F.4th 946 (6th Cir. 2025)): Reinforce the limited review of discretionary relief and the deferential standard for reopening, while acknowledging limited jurisdiction over legal or constitutional questions.
Dieng and the summary-judgment analogy; Viet v. Le, 951 F.3d 818 (6th Cir. 2020): The court reiterated that motions to reopen are not reviewed like summary judgment, and even under that analogy conclusory affidavits fail to create a genuine dispute—echoing why the BIA could reject petitioner’s bare promise of future documentation.

Legal Reasoning

The court’s reasoning unfolded in three main steps. First, it delineated the jurisdictional path to review: while factual findings and discretionary determinations regarding voluntary departure are unreviewable, the petitioner’s claim was a “question of law”—whether the BIA required more than a prima facie showing at the motion-to-reopen stage. As such, review was available under 8 U.S.C. § 1252(a)(2)(D), consistent with decisions like Wilkinson and Monsalvo.

Second, on the merits of the legal-standard argument, the Sixth Circuit found no error. The BIA expressly cited the correct prima facie framework—requiring only a reasonable likelihood of ultimately satisfying the statutory criteria—and did not demand conclusive proof at the motion stage. The opinion referenced Matter of Chen, 28 I. & N. Dec. 676, 682 (B.I.A. 2023), underscoring the BIA’s prima facie lens.

Third, even assuming the most favorable reading for the petitioner—that motions to reopen can rely on “future facts” that will be proven at a later hearing—the BIA acted within its discretion in concluding that the petitioner’s affidavit was too conclusory to meet the prima facie threshold. The statutory and regulatory scheme requires concrete evidentiary support with the motion: an “application for relief and all supporting documentation” (8 C.F.R. § 1003.2(c)(1)) and “affidavits or other evidentiary material” (8 U.S.C. § 1229a(c)(7)(B)). The requirement of a “passport or other travel documentation sufficient to assure lawful entry” (8 C.F.R. § 1240.26(c)(2)) framed what the petitioner needed to show to establish a reasonable likelihood of meeting § 1229c(b)(1)(D)’s “means to depart” requirement. The petitioner provided no copy of a passport, no consular appointment, no application receipt, no proof of fee payment or supporting documents submitted, and no detail about eligibility or timing. The BIA therefore permissibly found no prima facie showing even if “future facts” might be considered in some cases.

The court also addressed and distinguished the summary-judgment analogy drawn from Trujillo Diaz. It reiterated that motions to reopen are more akin to motions for relief from judgment (Abudu; Doherty; Dieng). And in any event, a conclusory affidavit (e.g., “I am in the process of renewing my passport”) would not suffice to create a genuine factual issue under civil summary-judgment standards (Viet v. Le), much less carry the “heavy burden” applicable to reopening.

Impact and Practical Implications

The opinion has several important consequences for immigration practice in the Sixth Circuit and beyond:

Concrete proof required at the motion stage: Where voluntary departure is sought on reopening, bare promises that required documentation will be forthcoming are insufficient. Practitioners should expect the BIA to require documentary corroboration that makes it reasonably likely the “means to depart” can be satisfied, especially where regulations specify the documentary prerequisite (e.g., a current passport or qualifying travel document).
What qualifies as adequate support: While the court did not create a checklist, the opinion strongly suggests that items such as passport copies, consular-appointment confirmations, application receipts, proof of fee payment, evidence of satisfying documentary prerequisites (e.g., birth certificates, national IDs, police clearances if required by the issuing country), and evidence of travel arrangements or financial means will materially strengthen a prima facie showing.
Unresolved “future facts” question remains open: The Sixth Circuit flagged—without deciding—whether a motion to reopen may rely on facts expected to exist at the merits hearing rather than at the time of the motion. Given the statutory text (“new facts that will be proven at a hearing”) and regulation requiring “supporting documentation” with the motion, future litigation may refine this point. For now, counsel should build the record as if present eligibility is required, or at minimum show concrete, verifiable steps already taken that make eligibility reasonably likely by the hearing.
Jurisdictional framing matters: The court reaffirms that while it cannot review factual or discretionary aspects of voluntary departure, it retains jurisdiction over legal questions about the standard applied by the BIA. Petitioners should carefully frame challenges to denials of reopening as questions of law to secure review, consistent with Wilkinson and Monsalvo.
Niz-Chavez-based reopening remains viable—but evidentiary rigor is key: Niz-Chavez may open the door to voluntary departure for some noncitizens whose notices to appear were defective and who now meet the physical-presence requirement. But reopening will fail absent robust, non-conclusory evidence of all other statutory elements—here, the “means to depart.”

Complex Concepts Simplified

Voluntary departure (8 U.S.C. § 1229c(b)): A discretionary remedy allowing certain removable noncitizens to depart the U.S. on their own, avoiding a formal removal order and associated penalties. Eligibility requires, among other things, a showing—by clear and convincing evidence—of the “means to depart” and intent to do so.
“Means to depart” and 8 C.F.R. § 1240.26(c)(2): To establish that a person can actually leave the U.S. and lawfully enter the receiving country, regulations require a valid passport or comparable travel documentation. In practice, this often also entails proof of concrete steps already taken to obtain that documentation.
Motion to reopen (8 U.S.C. § 1229a(c)(7)): A procedural vehicle to ask the BIA to reopen a closed removal case based on new facts and evidence. Disfavored and subject to a “heavy burden.” The motion must include affidavits/evidence and the application for relief with supporting documentation, and it must establish a prima facie case—a reasonable likelihood of eligibility for the requested relief.
Prima facie case vs. merits burden: On reopening, the question is whether the evidence makes it reasonably likely the applicant can meet the ultimate burden at a later hearing. It is not a full merits determination. Still, conclusory assertions without corroboration typically fail to meet even this lower threshold.
Limits on judicial review and “questions of law” (8 U.S.C. § 1252): Courts generally cannot review discretionary decisions or factual determinations underpinning certain immigration relief, including voluntary departure (Patel; § 1252(a)(2)(B)(i); § 1229c(f)). But they can review legal questions, including whether the BIA applied the correct legal standard, and mixed questions applying law to facts (Wilkinson).
Summary-judgment analogy: Although some cases have analogized motions to reopen to summary-judgment practice, the Supreme Court more aptly compares them to motions for relief from judgment. Regardless, conclusory affidavits are insufficient under either framework.

Conclusion

Pastor-Hernandez underscores a practical, evidence-focused rule for motions to reopen seeking voluntary departure: conclusory representations that required travel documents are in process, without documentary corroboration or specific factual detail, do not establish a prima facie showing of the statutory “means to depart” requirement. The Sixth Circuit confirmed that the BIA applied the correct prima facie standard and permissibly demanded concrete evidence—particularly given 8 C.F.R. § 1240.26(c)(2)’s passport/travel-document requirement.

The decision leaves open an important doctrinal question—whether a motion to reopen can rely on future facts to be proven at a later hearing—but it provides clear guidance in the meantime: to make reopening plausible, submit tangible proof now. For practitioners, the takeaway is straightforward. Where voluntary departure is the target, include the relief application and robust, verifiable documentation of travel readiness (or imminent readiness) with the motion itself. Doing so aligns with the statutory and regulatory demands, respects the “heavy burden” for reopening, and gives applicants the best chance of satisfying the prima facie threshold.