Fourth Circuit Clarifies Prima Facie Standard for Reopening Removal Proceedings Based on Bona Fide Marriage

Introduction

This commentary examines the United States Court of Appeals for the Fourth Circuit’s decision in Ansar Hassen Hussen v. Pamela Jo Bondi, Attorney General (Nos. 23-1047, 23-2197 & 24-1257), decided April 22, 2025. Hussen, a native of Ethiopia, first sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT). After the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) rejected his claims on credibility and persecution grounds, Hussen married a U.S. citizen and moved to reopen his removal proceedings in order to seek adjustment of status. The Fourth Circuit denied his asylum petition, granted his petition challenging the BIA’s denial of reopening, and vacated and remanded for further proceedings, while dismissing as moot his later petitions.

Summary of the Judgment

The Fourth Circuit’s published opinion, authored by Judge Niemeyer (joined by Judges King and Benjamin), resolved three consolidated petitions:

Petition No. 23-1047 (asylum, withholding, CAT): Denied. The court upheld the IJ’s adverse credibility findings and the BIA’s affirmance under the deferential substantial‐evidence standard.
Petition No. 23-2197 (motion to reopen to seek adjustment of status): Granted. The court held the BIA applied the wrong legal standard to evaluate a motion to reopen based on a marriage entered during removal proceedings. It vacated the BIA’s order and remanded for application of the correct “prima facie” standard under Matter of Velarde‐Pacheco.
Petition No. 24-1257 (motion to reconsider/reopen with additional evidence): Denied as moot, in light of the remand.

Analysis

Precedents Cited

Matter of Velarde‐Pacheco (23 I. & N. Dec. 253 (BIA 2002)): Sets the standard for reopening proceedings to seek adjustment of status based on a marriage entered after removal proceedings commenced. Requires a prima facie showing of a strong likelihood that the marriage is bona fide.
8 U.S.C. § 1255(e)(3): As amended by the Immigration Act of 1990, allows adjustment of status for marriages entered during removal proceedings if the marriage is shown “by clear and convincing evidence” to be bona fide.
8 C.F.R. § 204.2(a)(1)(iii)(B): Illustrates examples of evidence—joint leases, affidavits, shared finances—that may establish the bona fides of a marriage.
INS v. Abudu, 485 U.S. 94 (1988): Confirms BIA’s authority to deny reopening when the movant fails to make a prima facie showing of eligibility for the relief sought.
8 U.S.C. § 1252(b)(4)(B): Directs courts to uphold agency findings unless a reasonable adjudicator would be compelled to reach a contrary conclusion.

Legal Reasoning

The Fourth Circuit divided its analysis into two main parts:

Asylum, Withholding, and CAT Relief: The court applied the substantial‐evidence standard, affirming the IJ’s adverse credibility determination. The IJ found Hussen’s testimony implausible on multiple grounds (e.g., how he evaded arrest at a large protest, yet was later hired by the same regime) and noted lack of independent corroboration. The BIA’s affirmance was upheld because it tracked the IJ’s specific and cogent credibility findings.
Motion to Reopen for Adjustment of Status: The heart of the decision. The BIA had stated that a movant must submit “clear and convincing evidence of the bona fides of the marriage” at the reopening stage. The Fourth Circuit held this was legal error. Under Matter of Velarde‐Pacheco, a movant must make only a prima facie showing—by clear and convincing evidence—that there is a strong likelihood the marriage is bona fide if proceedings are reopened. The BIA’s conflation of that prima facie standard with the ultimate burden amounted to a misapplication of law and thus abuse of discretion. The court vacated the BIA’s order and remanded for reconsideration under the proper standard.

Impact

This decision clarifies the law in the Fourth Circuit (and provides persuasive authority elsewhere) on how the BIA must evaluate motions to reopen based on post‐proceeding marriages:

It prevents the BIA from prematurely denying reopening by imposing the full “clear and convincing” ultimate burden instead of the lighter prima facie standard.
It protects respondents and U.S. citizens from undue hardship where bona fide marriages form during removal proceedings.
It reinforces the requirement that the BIA articulate and apply the correct reopening standards under Matter of Velarde‐Pacheco and implementing statutes/regulations.
Future cases will cite this decision to challenge any BIA decision that conflates prima facie reopening requirements with ultimate burdens.

Complex Concepts Simplified

Prima Facie vs. Ultimate Burden: “Prima facie” means a preliminary showing sufficient to establish a case unless rebutted. It does not demand proof beyond doubt. The “ultimate burden” of clear and convincing evidence requires a higher level of proof.
Motion to Reopen vs. Motion to Reconsider: A motion to reopen introduces new, material evidence after a final decision. A motion to reconsider argues that the decision was legally or factually wrong based on the existing record.
Adjustment of Status: A process allowing a noncitizen physically present in the U.S. to become a lawful permanent resident without leaving the country, often based on marriage to a U.S. citizen.
Board of Immigration Appeals (BIA): The higher administrative tribunal within the Department of Justice that reviews IJs’ decisions. Its rulings bind IJs unless overruled by regulation or court decision.

Conclusion

The Fourth Circuit’s decision in Ansar Hussen Hussen v. Bondi is significant for immigration law practice. It confirms that a respondent seeking to reopen removal proceedings based on a marriage entered during those proceedings need only make a prima facie showing—by clear and convincing evidence—that the marriage is bona fide. By correcting the BIA’s misapplication of the Velarde‐Pacheco standard, the court both safeguards genuine marriages from procedural bars and clarifies the interplay between reopening standards and statutory burdens of proof. This precedent will guide future litigants and adjudicators in balancing fraud deterrence against fairness to families formed during immigration proceedings.