A. Precedents Cited

Standards governing motions to reopen and appellate review

• Nguhlefeh Njilefac v. Garland, 992 F.3d 362 (5th Cir. 2021): The court invoked this case for two propositions: (i) motions to reopen are “disfavored,” reinforcing the uphill nature of such requests; and (ii) even if the agency errs at some point, affirmance may still be appropriate if there is “no realistic possibility” the result would change. In Marciano, however, the error was not a minor analytical misstep—it was a failure to analyze the VAWA claim at all—so the panel treated it as requiring remand rather than harmless-error affirmance.
• Gonzalez-Cantu v. Sessions, 866 F.3d 302 (5th Cir. 2017): Provided the baseline “highly deferential abuse-of-discretion” review for denials of reopening. Importantly, deference did not excuse the agency from addressing a properly presented statutory theory (VAWA timeliness/waiver).
• Orellana-Monson v. Holder, 685 F.3d 511 (5th Cir. 2012): Supplied the framework that factual findings are reviewed for substantial evidence and legal conclusions de novo, and that the court considers the IJ decision to the extent it influenced the BIA. This mattered because the BIA affirmed without elaboration, pushing the Fifth Circuit to scrutinize the IJ’s reasoning.
• Geberemedhne-Kifle v. Mukasey, 290 F. App’x 687 (5th Cir. 2008) (per curiam): Cited for the proposition that where the BIA affirms the IJ without opinion, the reviewing court’s analysis encompasses the IJ’s decision. That procedural posture made the IJ’s failure to address VAWA dispositive.

Credibility determinations and their limits

• Avelar-Oliva v. Barr, 954 F.3d 757 (5th Cir. 2020): Used to characterize adverse credibility as a factual finding and to restate the requirement that adverse credibility determinations must rest on “specific and cogent reasons derived from the record.” The government attempted to make the adverse-credibility finding “dispositive of both issues” (including VAWA), but the panel emphasized that the agency still had to apply its credibility analysis to the VAWA claim, not simply assume credibility defeats it.
• Wang v. Holder, 569 F.3d 531 (5th Cir. 2009): Quoted (via Avelar-Oliva) for the “specific and cogent reasons” requirement. In Marciano, the shortfall was not the absence of reasons for the lack-of-notice credibility finding; it was the agency’s failure to connect any credibility analysis to the VAWA statutory waiver claim.

Reasoned consideration / “show its work” requirement

• Ghotra v. Whitaker, 912 F.3d 284 (5th Cir. 2019): The court relied on Ghotra for the principle that the BIA need not write “an exegesis on every contention,” but must provide a decision sufficient for a reviewing court to perceive that it “has heard and thought and not merely reacted.” This became the core analytic tool: the IJ’s order did not demonstrate consideration of the VAWA timeliness/waiver theory.
• Ndifon v. Garland, 49 F.4th 986 (5th Cir. 2022): Reinforced and operationalized the reasoned-consideration requirement. The panel treated the IJ’s omission as the kind of agency failure that Ndifon requires courts to remand to correct. The remand in Marciano is best understood as a Ndifon-style remedy: the agency must engage the argument and make findings sufficient for judicial review.

Jurisdiction and reviewability boundaries

• Pena-Lopez v. Garland, 33 F.4th 798 (5th Cir. 2022): Cited for a critical jurisdictional nuance under 8 U.S.C. § 1229a(c)(7)(C)(iv): while courts cannot review the “ultimate, discretionary decision” to grant relief, they can review the application of the statutory standard to an undisputed set of facts. Marciano fits within this framework: the court reviewed whether the agency applied the correct legal approach (i.e., considered the VAWA standard at all), not whether it should ultimately exercise discretion to reopen.
• Ikome v. Bondi, 128 F.4th 684 (5th Cir. 2025), and Cuenca-Arroyo v. Garland, 123 F.4th 781 (5th Cir. 2024) (per curiam): Cited to explain that judicial review exists “only when there is a legal standard to apply.” The panel used these cases to reject the government’s argument that adverse credibility eliminates jurisdiction. Because credibility is reviewed under substantial-evidence and “specific and cogent reasons” standards, there is law to apply.
• Ibe v. Bondi, No. 25-60002, 2025 WL 2741644 (5th Cir. Sept. 26, 2025) (per curiam): Cited as an additional example that adverse credibility determinations remain reviewable under established standards, reinforcing jurisdiction over that component.
• Luna v. Garland, 123 F.4th 775 (5th Cir. 2024), and Qorane v. Barr, 919 F.3d 904 (5th Cir. 2019): These cases foreclosed review of the BIA’s refusal to reopen proceedings sua sponte. Relying on this line, the panel dismissed that portion of the petition for lack of jurisdiction.

Post-Loper Bright argument rejected

• Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): Marciano argued that the BIA’s decision was not entitled to deference under Loper Bright. The panel dismissed this as irrelevant to the posture: Loper Bright does not expand courts’ authority to relax statutory review standards or ignore “plain statutory directives” such as 8 U.S.C. § 1229a(c)(4)(C) governing credibility considerations. In other words, whatever Loper Bright means for agency statutory interpretation, it does not transform the Fifth Circuit’s standard-of-review and jurisdictional frameworks in immigration reopening cases.

B. Legal Reasoning

1. Identifying the agency omission: Marciano’s motion invoked a distinct statutory route: VAWA’s reopening deadline and potential waiver for “extraordinary circumstances or extreme hardship to the alien’s child” under 8 U.S.C. § 1229a(c)(7)(C)(i)-(iv). The IJ’s order addressed untimeliness and credibility tied to the prior lack-of-notice narrative, but did not analyze whether Marciano’s VAWA showing satisfied the statutory timeliness/waiver provisions.
2. Reasoned-consideration requirement applied: Using Ghotra v. Whitaker and Ndifon v. Garland, the Fifth Circuit held that an agency must do enough analysis for a reviewing court to discern that the claim was heard and considered. Here, the IJ “failed to show its work” on the VAWA claim; the BIA’s summary affirmance did not cure the defect.
3. Credibility is relevant but not a substitute for analysis: The court acknowledged that credibility could matter to VAWA-related determinations (noting 8 U.S.C. § 1154(a)(1)(J) on “any credible evidence”), but emphasized the IJ did not actually apply the adverse-credibility finding to the VAWA statutory standard. The agency cannot simply import a credibility finding from one theory (lack of notice) to dispose of another (VAWA timeliness/waiver) without explaining the link and addressing the governing legal criteria.
4. Remedy tailored to the error: The panel remanded without opining on whether Marciano should ultimately win. The required correction was procedural/legal: the agency must evaluate the VAWA claim and provide a reviewable explanation.
5. Sua sponte reopening remains unreviewable: Consistent with Luna and Qorane, the court dismissed the challenge to the BIA’s refusal to reopen sua sponte for lack of jurisdiction.

Doctrinal takeaway: Marciano reinforces that, even under highly deferential reopening review, the agency must address a properly raised VAWA-based statutory reopening/tolling theory with enough reasoning to permit judicial review; a credibility finding tied to a different argument does not eliminate that duty.

C. Impact

• For VAWA-based reopening motions: The decision strengthens procedural protections for VAWA self-petitioners seeking reopening: when the motion squarely invokes 8 U.S.C. § 1229a(c)(7)(C)(iv), the IJ/BIA must engage the “extraordinary circumstances or extreme hardship” framework rather than deny solely by reference to unrelated aspects of the record.
• For agency decision-writing: The opinion is a reminder that streamlined BIA affirmances heighten the importance of a complete IJ analysis. If the IJ does not address a statutory ground for relief, the Fifth Circuit is positioned to remand under Ghotra/Ndifon for lack of reasoned consideration.
• For litigating credibility: While the Fifth Circuit did not hold that an adverse credibility finding can never affect VAWA reopening, it signaled that credibility must be tethered to the specific claim and legal standard being decided. “Credibility” cannot function as a blanket, unexplained solvent for all distinct legal theories raised in a motion to reopen.
• For sua sponte reopening requests: The decision reaffirms a significant practical limit: petitioners should not expect judicial review of denials of sua sponte reopening in the Fifth Circuit absent a recognized exception; framing arguments in reviewable statutory terms remains essential.
• For post-Loper Bright strategy: Marciano suggests courts will resist attempts to use Loper Bright Enters. v. Raimondo to reconfigure immigration standards of review or jurisdictional limits where Congress has provided explicit directives (e.g., credibility factors, reviewability bars).