Prima Facie “Strong Likelihood” Standard for Reopening Removal Proceedings to Pursue Post-Proceedings Marriage-Based Adjustment of Status

Introduction

The consolidated appeals in Ansar Hussen Hussen v. Pamela Jo Bondi, decided April 22, 2025 by the Fourth Circuit, address three petitions for review arising from the Board of Immigration Appeals’ (“BIA”) denial of relief to an Ethiopian national, Ansar Hussen Hussen. Mr. Hussen initially sought asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), all of which were denied based on adverse credibility findings. While that petition was pending, he married a U.S. citizen and filed two successive motions to reopen removal proceedings to pursue an adjustment of status based on his marriage. The Fourth Circuit (Judge Niemeyer, joined by Judges King and Benjamin) affirmed the denial of asylum and CAT relief, clarified the proper legal standard under Matter of Velarde-Pacheco for motions to reopen in marriage-based adjustment cases, vacated the BIA’s denial of the first motion to reopen, and remanded for application of the correct “strong likelihood” prima facie standard. The court also found the third petition moot.

Summary of the Judgment

1. Petition No. 23-1047 (asylum/CAT): The Fourth Circuit upheld the immigration judge’s and BIA’s adverse credibility determination under the substantial-evidence standard, denying the petition for review.

2. Petition No. 23-2197 (first motion to reopen): The Fourth Circuit held that the BIA misapplied Matter of Velarde-Pacheco’s prima facie “strong likelihood” standard by requiring clear and convincing proof of the marriage’s bona fides at the reopening stage. It granted the petition, vacated the BIA’s order, and remanded for application of the correct standard.

3. Petition No. 24-1257 (second motion to reopen/reconsideration): Because the first motion to reopen must be reconsidered under the proper standard, the court denied this petition as moot.

Analysis

Precedents Cited

Matter of Velarde-Pacheco (23 I. & N. Dec. 253, BIA 2002): Established that a respondent seeking to reopen removal proceedings to pursue adjustment of status based on a post-commencement marriage must present “clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide.” The Fourth Circuit emphasized that this is a prima facie test, not the ultimate burden.
Immigration Marriage Fraud Amendments of 1986 (Pub. L. 99-639) and Immigration Act of 1990 (Pub. L. 101-649): Created—and then moderated—a categorical bar on adjustment of status for marriages entered during removal proceedings, replacing it with a bona fides requirement to deter fraud while avoiding undue hardship on bona fide spouses.
8 C.F.R. § 204.2(a)(1)(iii)(B): Lists illustrative evidence for establishing marital bona fides at the adjustment stage.
8 U.S.C. § 1252(b)(4)(B) and Hui Pan v. Holder (737 F.3d 921): Define the substantial-evidence standard and deference to BIA’s factual findings, including credibility determinations.
Abudu v. INS (485 U.S. 94, 1988): Explains that a motion to reopen can be denied if the movant fails to establish a prima facie case for the relief sought.

Legal Reasoning

The Fourth Circuit’s opinion is two-pronged:

Asylum/CAT Claims: Under 8 U.S.C. § 1158(b)(1)(B)(iii), the IJ found Mr. Hussen’s narrative vague and implausible, noted lack of independent corroboration, and determined that his mistreatment did not rise to the level of persecution. The BIA upheld those findings. The Fourth Circuit applied the substantial-evidence standard and found no reason to disturb the adverse credibility ruling.
Motion to Reopen for Marriage-Based Adjustment: The BIA applied Matter of Velarde incorrectly by demanding that Mr. Hussen prove the bona fides of his marriage by clear and convincing evidence at the reopening stage. In truth, Velarde requires only that the movant present clear and convincing evidence demonstrating a “strong likelihood” of meeting the statutory bona fides requirement if proceedings were reopened. Because the BIA conflated the prima facie threshold with the ultimate burden of proof, the Fourth Circuit held that the BIA abused its discretion as a matter of law and remanded for application of the correct standard.

Impact

This decision carries significant implications for immigration practice:

BIA panels must apply the prima facie “strong likelihood” test under Matter of Velarde when evaluating motions to reopen to pursue marriage-based adjustment filed after the commencement of removal proceedings.
Respondents in bona fide marriages have a clearer path to reopening even if they lack every piece of corroborative evidence at the initial stage, reducing risk of undue hardship on U.S. citizen families.
The decision underscores the importance of precise adherence to the text and intent of statutory and regulatory standards at each procedural stage, reminding adjudicators not to shortcut prima facie inquiries by importing the ultimate burden of proof.

Complex Concepts Simplified

Adjustment of Status: A process by which an eligible non-citizen present in the United States can become a lawful permanent resident without returning to their home country.
Motion to Reopen: A procedural request to the BIA to reconsider a final removal order in light of new evidence or changed circumstances.
Prima Facie Showing: An initial evidentiary threshold that, if met, shifts the case into a fuller review rather than resolving it against the movant at the outset.
Clear and Convincing Evidence: A medium-level proof standard, higher than preponderance but lower than beyond a reasonable doubt, requiring that the evidence be highly and substantially more probable to be true.
Bona Fides of Marriage: Evidence that the marriage was entered into for genuine partners’ life together, not merely to evade immigration laws.

Conclusion

The Fourth Circuit’s opinion in Ansar Hussen Hussen v. Pamela Jo Bondi reaffirms deference to the BIA’s credibility determinations in asylum and CAT cases under the substantial-evidence standard, while clarifying the procedural threshold for motions to reopen removal proceedings to pursue post-commencement marriage-based adjustment of status. By emphasizing the prima facie “strong likelihood” test of Matter of Velarde-Pacheco, the court protects legitimate family unifications from overly burdensome proof requirements at the reopening stage and reinforces precise adherence to statutory and regulatory mandates.