“Continuation Isn’t Change” – Sixth Circuit Clarifies Post-Loper Bright Review of BIA Motions to Reopen

Introduction

In Raed Zakariya v. Pamela Bondi, Case No. 24-4082 (6th Cir. June 13, 2025), the United States Court of Appeals for the Sixth Circuit confronted yet another attempt by an Iraqi Chaldean Christian to reopen long-concluded removal proceedings. The case—though “Not Recommended for Publication”—is important for two reasons:

It delineates the evidentiary threshold for proving “materially changed country conditions” when a motion to reopen is filed years after the last merits hearing.
It expressly holds that the Supreme Court’s landmark decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), which abolished Chemson Chevron deference to agency interpretations of law, does not alter the traditional abuse-of-discretion standard applied to the Board of Immigration Appeals’ factual determinations.

The petitioner, Raed Zakariya, sought to reopen his 2015 removal proceedings for a third time, arguing that conditions for Christians in Iraq had “materially worsened” since his 2019 merits hearing. The Board of Immigration Appeals (BIA) rejected the motion as untimely and unsubstantiated; the Sixth Circuit now affirms.

Summary of the Judgment

Standard of Review: Abuse of discretion (for motions to reopen); unaffected by Loper Bright for factual determinations.
Holding: The BIA did not abuse its discretion in denying Zakariya’s 2024 motion to reopen because:
- Evidence showed only the continuation of adverse conditions for Christians in Iraq, not a material change since 2019.
- Most materials were duplicative of evidence offered—and previously rejected—in a 2023 motion.
Legal Significance: Confirms that after Loper Bright, federal courts still owe no special deference to BIA legal conclusions, but continue to review BIA factual determinations for abuse of discretion. Reiterates that “worsening” must be qualitatively distinct from prior conditions to satisfy the changed-conditions exception to the 90-day deadline under 8 C.F.R. § 1003.2(c)(3)(ii).

Analysis

A. Precedents Cited

Elgebaly v. Garland, 109 F.4th 426 (6th Cir. 2024) – sets forth the abuse-of-discretion framework: decision must be rational, consistent with policy, and non-discriminatory.
Abdulahad v. Garland, 99 F.4th 275 (6th Cir. 2024) – underscores that BIA cannot impose a per-se bar that “longstanding discrimination” defeats changed-conditions arguments; here, court distinguishes because BIA performed an individualized inquiry.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) – eliminated Chevron deference for agency legal interpretations; petitioner argued it should also curb deference on factual issues. Court rejects that view.
Prior panel decision: Zakariya v. Garland, No. 23-3047, 2024 WL 869660 (6th Cir. Feb. 29, 2024) – addressed virtually identical evidence and arguments.

Collectively, these precedents guided the Sixth Circuit in maintaining a high bar for reopening removal proceedings while clarifying that Loper Bright reshapes legal deference, not factual review.

B. The Court’s Legal Reasoning

Timeliness and Statutory Gatekeeping
• Under 8 C.F.R. § 1003.2(c)(2), motions to reopen must be filed within 90 days of the final administrative decision.
• Zakariya’s 2024 motion was untimely, so he had to fit within the “changed country conditions” exception § 1003.2(c)(3)(ii).
“Continuation vs. Change” Doctrine
• The Sixth Circuit reiterates that deterioration must be materially different from earlier conditions, not merely a “continuation” of existing hardship.
• Evidence—State Department and USCIRF reports, expert affidavit—traced threats back to 2014–2019, indicating persistence, not escalation.
Duplicative Evidence
• Court notes that Dr. Ramadan’s affidavit and government advisories were “nearly identical” to documents filed in 2023. Res judicata principles, though not formally invoked, animated the court’s skepticism.
Effect of Loper Bright
• Petitioner argued that post-Loper Bright, courts should review BIA decisions de novo.
• Court distinguishes: legal interpretations vs. factual or discretionary determinations.
• Concludes that abuse-of-discretion remains the operative standard for the latter.
Exhaustion & Record Rule
• Claims about withholding-of-removal standard and “secret memos” dismissed for failure to exhaust and for reliance on evidence outside the administrative record (8 U.S.C. § 1252(b)(4)(A)).

C. Potential Impact

Immigration Practice: Petitioners must assemble fresh, non-cumulative evidence pinpointing how their specific risk has grown since the last adjudication; generalized reports of turmoil will not suffice.
Judicial Review after Loper Bright: The decision becomes an early appellate exemplar confirming that removal of Chevron affects agency legal interpretations only; factual or discretionary assessments continue to receive deferential review.
BIA Litigation Strategy: Practitioners should anticipate heightened scrutiny of repeat motions; to meet the “material change” standard, they must highlight new developments that could not have been discovered previously.
Broader Administrative Law: Suggests a bifurcated post-Chevron landscape—de novo review for law, deferential review for fact and discretion—which other circuits will likely emulate.

Complex Concepts Simplified

Motion to Reopen: A procedural device allowing a non-citizen to ask the immigration court or BIA to re-examine a concluded case because of new facts.
Changed Country Conditions Exception: An untimely motion can be accepted if the petitioner presents evidence that conditions in the country of removal have materially worsened since the last hearing, and that evidence was previously unavailable.
Abuse-of-Discretion Review: Appellate court asks whether the agency’s decision was rational, consistent with law and policy, and free from bias. It is highly deferential.
Loper Bright and Chevron Deference: Chevron (1984) had required courts to defer to reasonable agency interpretations of ambiguous statutes. Loper Bright (2024) eliminated that doctrine, restoring de novo judicial interpretation of statutes. Yet, factual findings and discretionary calls by agencies still garner deference.

Conclusion

The Sixth Circuit’s decision in Raed Zakariya v. Pamela Bondi crystallizes two pivotal principles. First, petitioners carrying the heavy burden of an untimely motion to reopen must demonstrate qualitative change—not merely the continuation of adversity—to fit within the changed-conditions exception. Second, while Loper Bright revolutionizes judicial review of agency law, it leaves untouched the conventional deferential stance toward agency findings of fact and exercises of discretion. Immigration advocates and administrative-law practitioners alike should heed this bifurcation when crafting arguments post-Chevron’s demise. “Continuation isn’t change”—and Chevron’s fall doesn’t rewrite every rule of deference.