“Former Hearing” Means the Last IJ Hearing: Third Circuit Clarifies the Temporal Test for “New” Evidence in Motions to Reopen

Introduction

Jose Efrain Suchite-Salguero, a Guatemalan national, petitioned the United States Court of Appeals for the Third Circuit to review a Board of Immigration Appeals (BIA) order denying his motion for reconsideration. The underlying controversy focused on whether the birth of his U.S.-citizen daughter—occurring after the Immigration Judge (IJ) completed hearings but before the BIA issued its merits decision—qualified as “new” evidence that could support reopening his removal proceedings to seek cancellation of removal under 8 U.S.C. § 1229b(b).

The Third Circuit seized the opportunity to settle a recurring procedural question: At what procedural point must evidence be “new” for purposes of 8 C.F.R. § 1003.2(c)(1)? The Court held that “former hearing” refers exclusively to the last hearing before the IJ. Evidence arising after that hearing, even if it surfaces while the BIA appeal is pending, is “new” and can support a motion to reopen. Although the Court ultimately denied the petition on harmless-error grounds, its pronouncement establishes a clear rule of law for future immigration litigation.

Summary of the Judgment

• Key Holding: For purposes of 8 C.F.R. § 1003.2(c)(1), evidence is “new” if it was unavailable at the last IJ hearing, not simply unavailable before the BIA.
• Error Identified: The BIA misinterpreted “former hearing” by including appellate proceedings before itself, thereby erroneously deeming the daughter’s birth “not new.”
• Outcome: Despite the legal error, the Court found it harmless because the BIA independently reviewed the new evidence and still concluded Suchite-Salguero failed to establish prima facie hardship. The petition for review was therefore denied.

Analysis

Precedents Cited and Their Influence

• Filja v. Gonzales, 447 F.3d 241 (3d Cir. 2006)
  – Interpreted nearly identical language (“previous hearing”) in 8 C.F.R. § 1003.2(c)(3)(ii) to mean the IJ hearing, not the BIA stage.
  – Provided the structural and linguistic blueprint the Court relied on here.
• Mambom v. Attorney General, 465 F. App’x 212 (3d Cir. 2012)
  – Non-precedential decision the BIA mistakenly treated as persuasive authority. The Third Circuit clarified that Mambom’s facts differed and, being unpublished, lacked precedential force.
• Kisor v. Wilkie, 588 U.S. 558 (2019) & United States v. Nasir, 17 F.4th 459 (3d Cir. 2021)
  – Instructed courts to defer to agency interpretations only when regulations are “genuinely ambiguous.” The Court concluded no genuine ambiguity existed here.
• Patel v. Garland, 596 U.S. 328 (2022) and Wilkinson v. Garland, 601 U.S. 209 (2024)
  – Confirmed that federal courts retain jurisdiction over legal and mixed questions, even when factual determinations underlying cancellation of removal are insulated.
• Guadalupe v. Att’y Gen., 951 F.3d 161 (3d Cir. 2020) & Li Hua Yuan v. Att’y Gen., 642 F.3d 420 (3d Cir. 2011)
  – Defined the Third Circuit’s harmless-error standard applied to immigration decisions.
• SEC v. Chenery Corp., 318 U.S. 80 (1943), FDA v. Wages & White Lion Investments, 145 S. Ct. 898 (2025), Calcutt v. FDIC, 598 U.S. 623 (2023)
  – Grounded the Court’s discussion of when remand is unnecessary despite agency error.

Legal Reasoning of the Court

1. Textual and Structural Interpretation
   • The Court began with the regulation’s text—“former hearing.” Because the IJ alone is statutorily empowered to take evidence and develop factual records (8 U.S.C. § 1229a(b)(1)), “hearing” sensibly refers to IJ proceedings.
   • By contrast, the BIA is an appellate body barred from fact-finding (8 C.F.R. § 1003.1(d)(3)(iv)); it therefore conducts no “hearing” in the ordinary sense.
2. Absence of Ambiguity → No Auer/Kisor Deference
   The interpretive question was resolved through ordinary tools of construction; hence, deference to the BIA’s contrary view was unwarranted.
3. Application to Facts
   • The daughter was born more than a year after the final IJ hearing, rendering her birth indisputably “new.”
   • The BIA’s alternative definition of “former hearing” constituted legal error.
4. Harmless Error Analysis
   • Though legally mistaken, the BIA actually considered the new evidence when denying reopening and reconsideration.
   • Because the BIA would inevitably reach the same outcome (lack of evidence of hardship), the Court deemed the error non-prejudicial.

Potential Impact on Future Cases and Immigration Law

• Clarifies the Reopening Standard Nationwide (at least within the Third Circuit)
  – Petitioners can now confidently rely on events occurring between the IJ’s decision and the BIA’s merits determination.
• Practical Litigation Effect
  – Increases strategic value of timely motions to reopen based on births, marriages, or new country-conditions evidence arising during appeal.
• Consistency and Judicial Economy
  – The rule forestalls needless litigation over the meaning of “former hearing,” fostering uniform practice before IJs and the BIA.
• Ripple Effects Beyond Immigration
  – Reinforces textualist methodology and circumscribes Auer deference when regulatory text is plain, a trend relevant across administrative law.

Complex Concepts Simplified

Motion to Reopen (8 C.F.R. § 1003.2(c))

A procedural request asking the BIA to re-open concluded proceedings to consider new, material evidence that could not have been presented at the IJ hearing.

Cancellation of Removal (§ 1229b(b))

Discretionary relief for certain non-permanent residents requiring: 10 years’ continuous physical presence, good moral character, no disqualifying offenses, and proof that removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S.-citizen or LPR relative.

Exceptional and Extremely Unusual Hardship

An intentionally demanding standard—relief is reserved for cases where the hardship faced by U.S. family members would be substantially beyond that commonly resulting from deportation of a relative.

Harmless Error Doctrine

A judicial principle allowing courts to sustain an agency decision despite legal error if it is “highly probable” the outcome would be identical on remand.

Auer/Kisor Deference

Doctrine under which courts defer to an agency’s reasonable interpretation of its own ambiguous regulation. The Court refused to apply it here because the regulation’s meaning was clear.

Conclusion

The Third Circuit’s decision in Suchite-Salguero v. Attorney General decisively answers a procedural ambiguity that has long vexed immigration practitioners: “new” evidence for reopening purposes is measured against the record as it stood at the last IJ hearing, not the date of the BIA decision. By limiting “former hearing” to IJ proceedings, the Court aligns textual interpretation with the structural division of labor between IJs (fact-finders) and the BIA (reviewers). Though the petitioner did not ultimately prevail—due to the harmless-error doctrine—the ruling sets a significant precedent ensuring that life-events occurring during the appellate window can legitimately ground reopening motions. Going forward, practitioners in the Third Circuit (and potentially beyond) will leverage this clear standard to vindicate due-process interests and to secure fuller consideration of material, post-hearing developments.