Ninth Circuit Holds that for the BIA to Rule Against a Motion to Reopen Without Explanation is an Abuse of Discretion 

Movsisian v. Ashcroft, Slip Op. No. 03-70298 (9^th Cir. Jan. 20, 2005). 

On petition for review from a Board of Immigration Appeals ("BIA") decision affirming an Immigration Judge's denial of asylum and withholding of deportation, the Ninth Circuit Court of Appeals reviewed the BIA's denial of a motion to reopen and remanded back to the BIA for abuse of discretion. 

In this case, the Petitioner appealed the Immigration Judge's unfavorable decision concerning his asylum proceedings to the BIA, and while the appeal was pending, simultaneously filed a motion to reopen and remand in order to offer new evidence. The BIA affirmed the Immigration Judge's opinion, and denied, without any explanation, the Petitioner's motion to reopen and remand. The Petitioner filed for review of the Immigration Judge's denial of asylum and withholding of deportation, and for review of the denial of the motion to reopen and remand. The Court denied review of the Immigration Judge's denial, but granted review with regard to the motion. 

On review, the government contended that the BIA is not required to articulate its reasons for denial of a motion to reopen where the motion is nothing more than a disguised attempt to relitigate the merits, and that such a lack of articulation is in line with the BIA's streamlining procedures. The Court stated that unlike the BIA's streamlining process where the Immigration Judge's decision becomes the final agency determination, where the BIA entertains a motion to reopen and then fails to provide specific and cogent reasons for its decision, the Court is left without a reasoned decision to review. The Court stated that the BIA is deemed to have abused its discretion when it acts arbitrarily, irrationally, or contrary to the law, which includes when the BIA fails to provide a reasoned explanation for its actions. 

The Court recently held that the BIA must address and rule upon remand motions, giving specific, cogent reasons for a grant or denial. Narayan v. Ashcroft, 384 F.3d 1065, 1068 (9^th Cir. 2004). Since the BIA denied the motion to reopen and remand without any explanation, and since the government's argument that no explanation should be required in streamlined cases is unsupported by any authority, the Court concluded that the BIA abused its discretion by denying the motion to reopen and remand without explanation. The Court of Appeals remanded to allow the BIA to provide specific, cogent reasons for its decision.