Jurisdictional Limits on Review of BIA’s Lack-of-Prejudice Determinations in §1227(a)(1)(H) Waiver Reopenings

Introduction

This commentary examines the Sixth Circuit’s decision in Jin Yin Zhou v. Pamela Bondi, decided April 23, 2025, which clarifies the scope of federal appellate review over Board of Immigration Appeals (BIA) decisions denying motions to reopen removal proceedings when the underlying relief sought is a discretionary fraud waiver under 8 U.S.C. § 1227(a)(1)(H). The key issues involve:

Whether the Sixth Circuit may review a BIA determination that a petitioner failed to demonstrate “prejudice” under the Lozada test for ineffective-assistance-based equitable tolling when the relief sought is a § 1227(a)(1)(H) waiver;
Whether the court may review the BIA’s finding that the petitioner did not exercise due diligence in pursuing a motion to reopen;
The interplay between the INA’s jurisdiction-stripping provisions and its “safe harbor” for questions of law.

Parties:

Petitioner: Jin Yin Zhou, a Chinese national ordered removed after an IJ granted—and the BIA later reversed—a marriage fraud waiver;
Respondent: Pamela Bondi, U.S. Attorney General;
Counsel: Blake P. Somers for Zhou; Lindsay Corliss for the government.

Summary of the Judgment

The Sixth Circuit dismissed Zhou’s petition for review. It held that:

It lacks jurisdiction to review the BIA’s determination that Zhou failed to show prejudice under the Lozada test, because doing so would require second-guessing the discretionary denial of a § 1227(a)(1)(H) fraud waiver, which § 1252(a)(2)(B)(ii) bars.
The BIA’s denial of equitable tolling for lack of due diligence would ordinarily be reviewable under the INA’s “safe harbor,” but that question is moot once the dispositive prejudice ruling stands and cannot be reviewed.

The court carefully balanced its general authority to review BIA motions to reopen against Congress’s clear intent to insulate discretionary waiver decisions from appellate scrutiny.

Analysis

Precedents Cited

In re Tijam, 22 I. & N. Dec. 408 (BIA 1998): Established the balancing test of “favorable” and “adverse” factors for marriage-fraud waivers under § 1227(a)(1)(H).
In re Lozada, 19 I. & N. Dec. 637 (BIA 1988): Set forth procedural and substantive requirements for motions to reopen based on ineffective assistance of counsel and equitable tolling.
Sako v. Gonzales, 434 F.3d 857 (6th Cir. 2006): Applied Lozada requirements and emphasized the prejudice inquiry turns on the likely outcome of the underlying claim.
Mezo v. Holder, 615 F.3d 616 (6th Cir. 2010): Reviewed BIA’s due-diligence denial, remanding to consider prejudice under the Lozada test.
Barry v. Mukasey, 524 F.3d 721 (6th Cir. 2008): Identified five factors relevant to equitable tolling.
Scorteanu v. I.N.S., 339 F.3d 407 (6th Cir. 2003): Reviewed a motion to reopen denied for failure to show prejudice, emphasizing the impact on the underlying merits.
Al-Saka v. Sessions, 904 F.3d 427 (6th Cir. 2018) & Hussam F. v. Sessions, 897 F.3d 707 (6th Cir. 2018): Held that discretionary denials of § 1227(a)(1)(H) waivers are not reviewable on direct appeal.
Singh v. Gonzales, 451 F.3d 400 (6th Cir. 2006): Declared the waiver balancing “pure discretion” beyond judicial review.
Rahman v. Bondi, 131 F.4th 399 (6th Cir. 2025) & Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018): Explained the scope of the INA’s jurisdiction-stripping clauses and the “safe harbor” for questions of law.
Guerrero-Lasprilla v. Barr, 589 U.S. 227 (2020): Confirmed that mixed questions may qualify for the safe harbor exception.

Legal Reasoning

The Sixth Circuit’s opinion follows a two-step analysis:

Jurisdiction Over Prejudice Determination
The court acknowledged its general power to review BIA denials of motions to reopen, especially when equitable tolling and ineffective assistance of counsel are invoked. However, because the prejudice inquiry under Lozada necessarily requires asking whether the BIA would have granted the underlying § 1227(a)(1)(H) waiver—an admittedly discretionary decision—the court held that 8 U.S.C. § 1252(a)(2)(B)(ii) bars such review. Allowing a review of “would-have-made-a-difference” in the waiver decision would amount to a direct collateral attack on the BIA’s § 1227(a)(1)(H) discretion.
Jurisdiction Over Due-Diligence Determination
The court observed that due diligence, as part of equitable-tolling analysis, often presents a reviewable question under the INA’s safe harbor for “questions of law.” But since Zhou’s failure on prejudice was dispositive, appellate review of due diligence could not alter the outcome of her motion to reopen. Consequently, the court declined to reach that issue.

Impact

This decision clarifies and cements important limits on judicial review in immigration:

It confirms that the bar on reviewing § 1227(a)(1)(H) waiver decisions extends to collateral motions to reopen raised under Lozada.
It prevents petitioners from circumventing the jurisdiction-stripping provision by recasting direct-appeal issues as ineffective-assistance claims in motions to reopen.
It safeguards a petitioner’s ability to challenge purely procedural and legal aspects of reopening (e.g., compliance with Lozada procedures), while preserving the finality of discretionary relief decisions.

Complex Concepts Simplified

Equitable Tolling

A doctrine allowing courts to excuse a missed deadline when extraordinary circumstances beyond a petitioner’s control—such as ineffective assistance of counsel—prevent timely filing.

Motion to Reopen

A procedural request to the BIA to reconsider a removal order based on new evidence or changed law, usually filed within strict time limits (90 days for BIA decisions).

§ 1227(a)(1)(H) Waiver

A discretionary fraud-waiver for noncitizens who obtained residence by fraud or misrepresentation but can show hardship to qualifying U.S. citizen or lawful permanent resident relatives.

INA § 1252(a)(2)(B)(ii) Jurisdiction Strip

A provision removing federal-court authority to review discretionary decisions by the Attorney General or BIA, except for asylum cases.

Safe Harbor (INA § 1252(a)(2)(D))

An exception preserving review of constitutional claims and questions of law, even when other parts of § 1252 strip jurisdiction.

Lozada Test

A two-part framework for reopening based on ineffective assistance of counsel:

Procedural Prong: Affidavit of counsel’s failings, notice to counsel, and evidence of disciplinary complaint.
Substantive Prong: Demonstration that counsel’s deficiency caused prejudice to the underlying relief claim.

Conclusion

The Sixth Circuit’s decision in Jin Yin Zhou v. Pamela Bondi underscores the rigors of jurisdictional constraints in immigration law. By holding that the merits of a § 1227(a)(1)(H) fraud-waiver denial are beyond appellate review—even when recast as a Lozada prejudice inquiry—the court reaffirms Congress’s intent to render certain discretionary relief decisions final. At the same time, it preserves meaningful review of purely legal and procedural motions-to-reopen issues, maintaining a balanced approach to judicial oversight in removal proceedings.