Background
Angel Danilo Trigueros Quizar, a Guatemalan citizen, conceded removability and applied pro se for asylum, withholding of removal, and Convention Against Torture protection. After he failed to appear for his September 1, 2023 merits hearing, an immigration judge deemed his application abandoned and ordered him removed in absentia.
Trigueros Quizar timely moved pro se to reopen the proceedings and rescind the removal order. He stated that a flat tire delayed him and that, after obtaining an emergency repair, he reached the immigration court approximately five minutes late. He submitted a receipt showing that he bought four tires from the same tire shop several weeks later.
The IJ found his account was not inherently unbelievable and acknowledged that a flat tire could constitute an exceptional circumstance. Nevertheless, the IJ denied reopening for insufficient documentary corroboration, also noting the absence of court records supporting claimed telephone calls after his arrival and his earlier failures to appear or comply with an order. The Board of Immigration Appeals affirmed, citing the lack of a separate sworn affidavit and corroborating evidence.
The Court’s Holding
The Ninth Circuit granted the petition for review and remanded. The majority held that the BIA applied the wrong evidentiary requirements by suggesting that Trigueros Quizar needed a separate affidavit under penalty of perjury. Circuit precedent does not require a formal affidavit from a pro se petitioner, and his motion itself described the events leading to his late arrival.
The court also held that the agency could not require independent documentary corroboration of factual statements it had not found inherently unbelievable. Because motions to reopen are decided without a hearing, Ninth Circuit precedent generally requires the agency to accept such statements as true unless they are inherently unbelievable. A BIA decision imposing a contrary corroboration requirement could not displace controlling circuit precedent.
The panel did not decide whether the flat tire ultimately established exceptional circumstances warranting rescission. It directed the agency to reconsider the motion under the proper evidentiary standard. The court separately concluded that the BIA did not abuse its discretion by refusing to accept Trigueros Quizar’s late appellate brief. Judge VanDyke dissented, arguing that the circuit’s deem-true rule is erroneous and that the majority improperly extended it by limiting the agency’s consideration of other record evidence.
Key Takeaways
- A pro se petitioner seeking reopening need not submit a separate formal affidavit when the motion itself adequately states the relevant facts.
- Under binding Ninth Circuit precedent, the agency may not demand independent corroboration of a motion-to-reopen account that it has not found inherently unbelievable.
- The decision requires reconsideration under the correct evidentiary standard; it does not itself hold that Trigueros Quizar proved exceptional circumstances or is entitled to rescission.
Why It Matters
The decision reinforces a significant procedural protection for noncitizens seeking to reopen in absentia removal orders. Within the Ninth Circuit, the BIA cannot deny reopening merely because a credible pro se account lacks a formal affidavit or independent documents corroborating its details.
The divided opinion also highlights an ongoing disagreement over the circuit’s deem-true doctrine. The dissent maintained that the rule lacks statutory support and conflicts with the agency’s obligation to evaluate the totality of the circumstances, while the majority treated the rule as binding precedent that a three-judge panel was required to follow.