Coote v. U.S. Attorney General: Eleventh Circuit Clarifies BIA’s Authority to Assess New Evidence on Motions to Reopen Without Remand

1. Introduction

The Eleventh Circuit’s non-precedential opinion in Shevon Coote v. U.S. Attorney General, No. 24-11259 (11th Cir. May 9, 2025), addresses the scope of the Board of Immigration Appeals’ (“BIA”) power to review and deny motions to reopen removal proceedings that rely on newly-submitted evidence and claims of ineffective assistance of counsel (“IAC”)—all without remanding to an Immigration Judge (“IJ”) for additional fact-finding.

The petitioner, Mr. Shevon Coote, a Jamaican national and lawful permanent resident convicted of federal drug trafficking, sought deferral of removal under the Convention Against Torture (“CAT”). After the IJ and the BIA rejected his CAT claim, Coote filed multiple appeals and motions to reopen based on new evidence and alleged attorney ineffectiveness. The consolidated petitions ultimately required the Eleventh Circuit to decide whether the BIA abused its discretion by evaluating the new evidence itself rather than remanding the case, and whether the BIA correctly applied the prejudice standard for IAC claims.

The Court denied the petition, firmly holding that the BIA may—consistent with its regulatory mandate—evaluate new evidence attached to a motion to reopen when determining whether the evidence would likely change the outcome, and that such evaluation is not “impermissible fact-finding” under 8 C.F.R. § 1003.1(d)(3)(iv).

2. Summary of the Judgment

Jurisdiction: The Court reaffirmed that it retains jurisdiction over factual determinations relating to CAT relief notwithstanding the criminal-alien bar (Nasrallah v. Barr).
Standard of Review: Denial of a motion to reopen is reviewed for abuse of discretion; underlying legal issues de novo.
Key Holdings:
- The BIA did not engage in prohibited fact-finding by assessing Coote’s new evidence because such assessment is inherent in deciding whether reopening is warranted.
- Coote failed to demonstrate prejudice stemming from alleged attorney errors; therefore, his IAC-based motion to reopen was properly denied.
- The new evidence—letters, affidavits, and country-condition reports—did not establish a “reasonable likelihood” that Coote would be entitled to CAT relief because it did not sufficiently show government acquiescence to torture.
- The BIA’s decision was neither arbitrary nor capricious and thus not an abuse of discretion.
Outcome: Petition for Review DENIED.

3. Analysis

3.1 Precedents Cited and Their Influence

• Dacostagomez-Aguilar v. U.S. Att’y Gen. – Reinforced the abuse-of-discretion standard and de novo review of legal questions.
• Ferreira v. U.S. Att’y Gen. – Clarified misuse of discretion occurs when the BIA misapplies law or ignores its own precedent.
• Ali v. U.S. Att’y Gen. – Established that new evidence must likely change the result to justify reopening.
• Dakane v. U.S. Att’y Gen. – Set the prejudice test for IAC in immigration cases (“reasonable probability” of a different outcome).
• Sanchez-Castro v. U.S. Att’y Gen. – Held that governmental efforts to control gangs can defeat claims of official acquiescence.
• INS v. Doherty & 8 C.F.R. § 1003.2(a) – Emphasized that motions to reopen are disfavored and can be denied on several independent grounds.
• Nasrallah v. Barr – Confirmed the federal courts’ jurisdiction to review factual challenges underlying CAT claims.

Together, these cases create a framework wherein the BIA has broad discretion to deny reopening unless the movant clearly shows both (1) new, previously unavailable evidence, and (2) a prima facie case for the relief sought. The Eleventh Circuit applied this framework, underscoring that even compelling new allegations do not suffice without a linkage to government acquiescence.

3.2 The Court’s Legal Reasoning

Permissible Scope of BIA Review
The Eleventh Circuit held that assessing the probative value of new evidence is integral to deciding a motion to reopen; therefore, it does not constitute prohibited fact-finding. Section 1003.1(d)(3)(iv) bars the BIA from making new factual findings that are properly committed to an IJ, but it does not prevent the Board from evaluating evidence to decide if reopening is warranted.
Failure to Show Prejudice
Under Dakane, an IAC claimant must demonstrate that counsel’s errors likely changed the result. The Court agreed with the BIA that Coote’s new documents—a police superintendent’s letter, a criminologist’s affidavit, and evidence of relatives’ murders—did not negate prior findings that Jamaican authorities are actively combating gang violence. Thus, even if counsel erred, no reasonable likelihood of CAT relief existed.
Government Acquiescence Standard
The decision turns on the distinction between a government’s inability versus unwillingness to control private violence. Evidence showing that Jamaican police attempt (even if inadequately) to arrest gang members undermines a claim of official acquiescence. The Court cited Sanchez-Castro to emphasize that “trying but failing” defeats the acquiescence element.

3.3 Impact of the Judgment

1. BIA Fact-Assessment Clarified: Practitioners can expect the BIA to weigh new evidence attached to motions to reopen without reflexively remanding. This speeds resolution and places a heavier initial burden on movants.

2. Higher Evidentiary Threshold for CAT Claims: Applicants must show both likelihood of torture and government consent, complicity, or willful blindness. Demonstrating mere danger from private actors is insufficient.

3. IAC Claims Tightened: Alleging deficient performance alone will not reopen proceedings; petitioners must articulate how specific omitted evidence would overcome prior shortcomings (e.g., relocation viability, lack of past torture).

4. Criminal-Alien Jurisdiction Reaffirmed: Even criminal aliens remain entitled to federal-court review of CAT-related factual determinations, enhancing judicial oversight while preserving strict standards for relief.

4. Complex Concepts Simplified

CAT (Convention Against Torture): A treaty-based protection allowing individuals to avoid removal if they can prove it is more likely than not they will suffer torture in the destination country, perpetrated with government involvement.
Government “Acquiescence”: For CAT, officials must consent, instigate, or remain willfully blind to torture. Mere inability or inefficiency in preventing crime does not equal acquiescence.
Motion to Reopen: A procedural request to the BIA to re-examine a final removal order based on new, material evidence. It is subject to strict time and numerical limits.
Impermissible Fact-Finding: Under 8 C.F.R. § 1003.1(d)(3)(iv), the BIA generally reviews, but does not create, factual records. It may, however, evaluate whether new evidence meets reopening criteria.
Ineffective Assistance of Counsel (IAC) in Immigration: Modeled on Strickland prejudice; the applicant must show (1) deficient performance, and (2) a reasonable probability of a different outcome absent that deficiency.

5. Conclusion

Coote v. U.S. Attorney General fortifies the BIA’s discretionary authority by confirming it may deny motions to reopen after directly assessing new evidence—without remand—when that evidence would not likely alter the result. The Eleventh Circuit’s decision further underscores that CAT protection hinges on demonstrating not only personal risk but also governmental complicity. Moreover, the ruling tightens the prejudice prong for IAC-based reopening, compelling future litigants to provide concrete, outcome-determinative proof. In the broader immigration landscape, the opinion signals a continued judicial preference for prompt finality in removal proceedings while preserving a narrowly-tailored safety valve for bona fide CAT claims.