FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO FONSECA-FONSECA, 

AKA Felipe Fonseca, AKA 

Guadalupe Fonseca, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-71977 

Agency No.

A097-764-795 

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 16, 2023

San Francisco, California

Filed August 8, 2023

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, 

and Lucy H. Koh, Circuit Judges.

Opinion by Judge Nguyen
2 FONSECA-FONSECA V. GARLAND

SUMMARY*

Immigration

The panel granted a petition for review of the Board of 

Immigration Appeals’ denial of Mario Fonseca-Fonseca’s 

motion to reopen immigration proceedings to apply for 

cancellation of removal, and remanded for consideration of 

the motion under the correct standard.

The BIA can deny a motion to reopen on any one of at 

least three independent grounds: for failure to establish a 

prima facie case for the relief sought; for failure to introduce 

previously unavailable, material evidence; or based on a 

determination that even if these requirements were satisfied, 

a movant would not be entitled to the discretionary grant of 

relief sought. Here, the BIA denied petitioner’s motion to 

reopen after concluding that Fonseca-Fonseca failed to 

establish prima facie eligibility for cancellation of removal 

because he did not submit new evidence that “would likely 

change” the result of his case. 

The panel clarified any possible confusion in this 

circuit’s case law regarding a petitioner’s burden of proof in 

a motion to reopen. Prima facie eligibility for relief requires 

only a threshold showing of eligibility—a “reasonable 

likelihood” that the petitioner would prevail on the merits if 

the motion to reopen were granted. To be eligible for a 

discretionary grant of relief, a petitioner must present new 

evidence that “would likely change” the result in the 

case. Because the BIA erred by applying the wrong legal 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
FONSECA-FONSECA V. GARLAND 3

standard, the panel remanded to the BIA to adjudicate the 

motion to reopen under the proper standard.

COUNSEL

Andrew J. S. Newcomb (argued), Mendoza Immigration, 

San Jose, California; Elias Mendoza, Mendoza & Campos 

Law Offices PC, Sacramento, California; for Petitioner.

Allison Frayer (argued) and Carmel A. Morgan, Trial 

Attorneys; Jennifer P. Levings, Senior Litigation Counsel; 

Julia Tyler, Acting Senior Litigation Counsel; Brian M. 

Boynton, Acting Assistant Attorney General; United States 

Department of Justice, Office of Immigration Litigation, 

Civil Division; Washington, D.C.; for Respondent.

OPINION

NGUYEN, Circuit Judge:

Mario Fonseca-Fonseca, a native and citizen of Mexico, 

petitions for review of the Board of Immigration Appeals’

(“BIA”) denial of his motion to reopen. Fonseca-Fonseca 

sought to reopen his immigration proceedings to apply for 

cancellation of removal. The BIA found that he failed to 

establish prima facie eligibility for cancellation of removal 

because he did not submit new evidence that would likely 

change the result in his case.

The parties disagree on a threshold issue—whether the 

BIA applied the correct burden of proof. The government 
4 FONSECA-FONSECA V. GARLAND

argues that, to demonstrate prima facie eligibility for the 

underlying relief in a motion to reopen, a petitioner must 

present new evidence that “would likely change” the result 

of his case. See In re Coelho, 20 I. & N. Dec. 464, 473 

(B.I.A. 1992). Fonseca-Fonseca contends that he need only 

show that the new evidence demonstrates a “reasonable 

likelihood” that he is eligible for the requested relief. See In 

re L-O-G-, 21 I. & N. Dec. 413, 420 (B.I.A. 1996) (en banc).

Fonseca-Fonseca has the better argument. Although our 

published cases properly cite the reasonable likelihood 

standard when addressing the prima facie ground, none 

provide a rationale or indeed any discussion of the 

appropriate standard. See, e.g., Ordonez v. INS, 345 F.3d 

777, 785 (9th Cir. 2003); Garcia v. Holder, 621 F.3d 906, 

912 (9th Cir. 2010); Kaur v. Garland, 2 F.4th 823, 833 (9th 

Cir. 2021). Further, our memorandum dispositions have 

introduced confusion by citing the two standards—“would 

likely change” the result and “reasonable likelihood” of 

eligibility for relief—loosely, and at times, interchangeably. 

See, e.g., Vejar Rodriguez v. Garland, No. 19-71714, 2021 

WL 6067023, at *1 (9th Cir. Dec. 20, 2021); Larin-De 

Hernandez v. Garland, No. 18-70388, 2022 WL 16630273, 

at *1 (9th Cir. Nov. 2, 2022).

But these standards are not interchangeable. A standard 

requiring petitioners to demonstrate that their new evidence 

would likely change the result of their case is a substantively 

higher bar than requiring petitioners to show a reasonable 

likelihood of eligibility for relief. 

Today, we clarify that prima facie eligibility for relief 

requires only a threshold showing of eligibility—a 

reasonable likelihood that the petitioner would prevail on the 

merits if the motion to reopen were granted. As the BIA 
FONSECA-FONSECA V. GARLAND 5

previously explained, a noncitizen “demonstrates prima 

facie eligibility for relief where the evidence reveals a 

reasonable likelihood that the statutory requirements for 

relief have been satisfied.” In re S-V-, 22 I. & N. Dec. 1306, 

1308 (B.I.A. 2000) (en banc). 

Because the BIA applied the wrong standard in denying 

Fonseca-Fonseca’s motion to reopen, we remand to the 

agency to adjudicate his motions under the proper standard.

1

I.

Fonseca-Fonseca first entered the United States in March 

1994. On May 23, 2013, he received a Notice to Appear 

(“NTA”) that ordered him to appear before an immigration 

judge (“IJ”) at a time and place to be set. Fonseca-Fonseca

applied for cancellation of removal but later withdrew the 

application, conceding that he could not meet the ten-year 

physical presence requirement. See 8 U.S.C. 

§ 1229b(b)(1)(A). Fonseca-Fonseca then applied for 

asylum, withholding of removal, and protection under the 

Convention Against Torture. The IJ denied relief on the 

grounds that the one-year bar precluded his asylum claim, 

that Fonseca-Fonseca had not identified a cognizable 

particular social group for purposes of withholding, and that 

he presented no evidence of past or likely future torture by 

the Mexican government. 

Fonseca-Fonseca appealed to the BIA. He did not 

contest the merits of the IJ’s decision. Rather, he argued that

1 The government contends that Fonseca-Fonseca timely appealed only 

the BIA’s June 24, 2020 denial of his motion to reconsider, not the 

underlying order denying his motion to reopen. But, as the government 

acknowledges, we have jurisdiction over arguments that relate to 

Fonseca-Fonseca’s motion to reconsider. And the motion to reconsider 

raises the same legal question that we address here. 
6 FONSECA-FONSECA V. GARLAND

under Pereira v. Sessions, 138 S. Ct. 2105 (2018), his NTA

did not stop his accrual of physical presence for cancellation 

of removal and that the agency lacked subject matter 

jurisdiction because his NTA failed to list the time and place 

of the hearing.2 The BIA dismissed the appeal. It rejected 

Fonseca-Fonseca’s jurisdictional argument and noted that 

although the “incomplete Notice to Appear did not serve to 

stop the accrual of continuous physical presence for the 

purpose of cancellation of removal . . . [Fonseca-Fonseca]

does not presently have an application for cancellation of 

removal pending or argue that a qualifying family member 

will suffer exceptional and extremely unusual hardship as is 

required for cancellation of removal.”

Fonseca-Fonseca then moved to reopen to seek 

cancellation of removal. He asserted that he could now 

satisfy the continuous physical presence requirement. He 

further contended that he could meet the other cancellation 

requirements, including demonstrating exceptional and 

extremely unusual hardship to his U.S.-citizen children.

Fonseca-Fonseca did not offer new hardship evidence.

The BIA denied Fonseca-Fonseca’s motion to reopen. 

The agency held that while Fonseca-Fonseca’s argument 

regarding continuous presence “has merit” and “he does 

appear to have the continuous physical presence required for 

cancellation of removal,” his motion nevertheless failed 

because “he has not provided evidence of hardship, and thus, 

2 Statutory eligibility for non-LPR cancellation of removal requires, 

among other things, that the noncitizen “has been physically present in 

the United States for a continuous period of not less than 10 years 

immediately preceding the date of such application.” 8 U.S.C. 

§ 1229b(b)(1)(A). Pereira held that an NTA that does not list the time 

and place of the hearing does not cut off a noncitizen’s ability to accrue 

time for purposes of cancellation of removal. 138 S. Ct. at 2114.
FONSECA-FONSECA V. GARLAND 7

prima facie eligibility.” The BIA concluded that FonsecaFonseca “has not submitted persuasive new or previously 

unavailable evidence that is sufficient to meet his ‘heavy

burden’ of showing that it is likely that the result would 

change if the proceedings were reopened.” 

Fonseca-Fonseca moved for reconsideration. He argued, 

in relevant part, that the BIA erred as a matter of law by 

requiring his new evidence to meet an improperly high 

standard to show prima facie eligibility for cancellation. The 

BIA denied the motion to reconsider, holding once more that 

Fonseca-Fonseca “did not establish prima facie eligibility 

for cancellation of removal” because he “has not shown that 

it is likely the outcome of his proceedings will change.” 

Fonseca-Fonseca petitions for review of the BIA’s decision 

to deny his motion to reconsider.

We have jurisdiction to review the BIA’s order under 8 

U.S.C. § 1252. We review denials of motions to reopen or 

reconsider for abuse of discretion, Lara-Torres v. Ashcroft, 

383 F.3d 968, 972 (9th Cir. 2004), and questions of law de 

novo, Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir. 1999). 

We grant the petition and remand. 

II.

“The BIA can deny a motion to reopen on any one of ‘at 

least’ three independent grounds—‘failure to establish a 

prima facie case for the relief sought, failure to introduce 

previously unavailable, material evidence, and a 

determination that even if these requirements were satisfied, 

the movant would not be entitled to the discretionary grant 

of relief which he sought.’” Najmabadi v. Holder, 597 F.3d 

983, 986 (9th Cir. 2010) (quoting INS v. Doherty, 502 U.S. 

314, 323 (1992)). When the ultimate relief is discretionary, 

the BIA can leap over the two threshold concerns “and 
8 FONSECA-FONSECA V. GARLAND

simply determine that even if they were met, the movant 

would not be entitled to the discretionary grant of relief.” 

See INS v. Abudu, 485 U.S. 94, 105 (1988); see also 8 C.F.R. 

§ 1003.2(a).

Here, the BIA denied Fonseca-Fonseca’s motion to 

reopen because he failed to establish prima facie eligibility 

for cancellation of removal. We must decide whether the 

BIA correctly required Fonseca-Fonseca to demonstrate that

new evidence “would likely change” the result of his case, 

see In re Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 1992), 

instead of requiring him to show only a “reasonable 

likelihood” that he is entitled to relief, see In re L-O-G-, 21 

I. & N. Dec. 413, 420 (B.I.A. 1996) (en banc). We find that 

the BIA applied the wrong burden of proof. 

A.

1.

We begin by examining two of the most oft-cited BIA 

decisions regarding a petitioner’s burden of proof in a 

motion to reopen, each of which articulated a different 

standard.

The first case is Coelho, 20 I. & N. Dec. at 473, decided 

in 1992. There, the petitioner moved to reopen his removal 

proceedings to introduce previously unavailable evidence of 

rehabilitation. Id. Finding the prima facie ground “largely 

irrelevant” to the motion, the BIA instead denied the 

petitioner’s motion on discretionary grounds. Id. The BIA 

held that “in cases such as this, the Board ordinarily will not 

consider a discretionary grant of a motion to remand [for 

reopening] unless the moving party meets a ‘heavy burden’ 

and presents evidence of such a nature that the Board is 

satisfied that if proceedings before the immigration judge 
FONSECA-FONSECA V. GARLAND 9

were reopened, with all the attendant delays, the new 

evidence offered would likely change the result in the case.” 

Id. (emphasis added). In short, the BIA held that if a 

petitioner’s new evidence was unlikely to change its exercise 

of discretion, efficiency interests militated against reopening 

the case. 

Four years later, when confronted with a case that turned 

on the prima facie ground, the BIA crafted a different, lower 

standard. In L-O-G-, 21 I. & N. Dec. at 413, the petitioners 

moved to reopen to apply for suspension of deportation. The 

determinative issue was “whether the [petitioners] ha[d]

made a prima facie showing of extreme hardship.” Id. at 

415. Instead of applying Coelho’s “would likely change”

standard, the BIA recognized that the prima facie context 

logically called for a lower standard of proof. The BIA 

explained that it was “willing to reopen ‘where the new facts 

alleged, when coupled with the facts already of record, 

satisfy us that it would be worthwhile to develop the issues 

further at a plenary hearing on reopening.’” Id. at 419 

(quoting In re Sipus, 14 I. & N. Dec. 229, 231 (B.I.A. 1972)). 

Therefore, when evaluating a petitioner’s motion on the 

prima facie eligibility ground, “the [BIA] will look to 

whether there is sufficient evidence proffered to indicate a 

reasonable likelihood of success on the merits, so as to make 

it worthwhile to develop the issues further at a full 

evidentiary hearing.” Id. at 420 (emphasis added); see also 

In re S-V-, 22 I. & N. Dec. 1306, 1308 (B.I.A. 2000) (en 

banc) (reaffirming that a noncitizen “demonstrates prima 

facie eligibility for relief where the evidence reveals a 

reasonable likelihood that the statutory requirements for 

relief have been satisfied”).

The BIA’s decision to apply a less stringent standard in 

the context of a prima facie analysis makes sense. A prima 
10 FONSECA-FONSECA V. GARLAND

facie showing is merely a threshold showing. See Reyes v. 

INS, 673 F.2d 1087, 1089 (9th Cir. 1982). A standard that 

requires a prima facie showing that new evidence would 

likely change the agency’s eligibility determination is 

counterintuitive; it would essentially bypass the prima facie 

requirement and require the petitioner to proffer evidence 

that proves her claim for relief at the threshold. See Guo v. 

Ashcroft, 386 F.3d 556, 563–64 (3d Cir. 2004). Therefore, 

the BIA reasonably applied the “would likely change” 

standard to decisions on the discretionary ground in Coelho, 

but lowered the burden of proof to a “reasonable likelihood” 

of establishing eligibility for relief on the prima facie ground

in L-O-G-.

3

2.

In the years since Coelho and L-O-G-, we have cited to 

the correct “reasonable likelihood” standard for deciding on 

the prima facie ground in several decisions. See, e.g., 

Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003); Garcia 

v. Holder, 621 F.3d 906, 912 (9th Cir. 2010); Kaur v. 

Garland, 2 F.4th 823, 833 (9th Cir. 2021). But these

published decisions include bare citations without 

elaborating on the rationale behind the standard applied. 

3 Fonseca-Fonseca argues that the “reasonable likelihood” standard 

applies regardless of the BIA’s ground for denial as long as the petitioner 

had not previously sought the same relief. But, in our view, whether the 

agency has previously denied the petitioner’s claim is simply part of the 

totality of the circumstances that the agency considers in weighing the 

new evidence. See L-O-G-, 21 I. & N. Dec. at 419–20 (considering 

totality of the circumstances in ruling on the reasonable likelihood of 

establishing prima facie eligibility in a motion to reopen). Which 

standard applies depends on the BIA’s ground for denial, not whether 

the relief was previously sought.
FONSECA-FONSECA V. GARLAND 11

Our unpublished decisions, however, have introduced 

confusion by citing these two distinct standards loosely and, 

at times, interchangeably. See, e.g., Larin-De Hernandez v. 

Garland, No. 18-70388, 2022 WL 16630273, at *1 (9th Cir. 

Nov. 2, 2022) (citing the “reasonable likelihood” standard 

while approving the BIA’s use of the “would not likely 

change” standard); Vejar Rodriguez v. Garland, No. 19-

71714, 2021 WL 6067023, at *1 (9th Cir. Dec. 20, 2021) 

(same); Chan v. Mukasey, 261 F. App’x 948, 949 (9th Cir. 

2007) (rejecting petitioner’s argument that the BIA 

incorrectly applied the “would likely change” standard while 

quoting the “reasonable likelihood” standard).

The BIA has, unfortunately, injected the same error into 

its decisions by applying these distinct standards 

indiscriminately. Compare In re Velarde-Pacheco, 23 I. & 

N. Dec. 253, 262 (B.I.A. 2002) (en banc) (“By finding prima 

facie eligibility, we are deciding only that there is a 

reasonable likelihood that the statutory requirements for the 

relief sought will be satisfied.”), overruled on other grounds 

by In re Avetisyan, 25 I. & N. Dec. 688, 693 (B.I.A. 2012), 

and In re Gomez-Gonzalez, 2014 WL 4259392, at *1 (B.I.A.

2014) (applying “reasonable likelihood” standard to prima 

facie ground), with In re Melville, 2008 WL 2783091, at *1

(B.I.A. 2008) (“[W]e find that this new evidence does not 

present prima facie evidence that this new material would 

likely change the result in this case.”), and In re Lojano, 

2012 WL 1705667, at *1 (B.I.A. 2012) (applying the “would 

likely change” standard in a prima facie case). 

The only Ninth Circuit panel to directly address the 

disparate nature of these standards found, in an unpublished 

decision, that the “would likely change” standard applied 

only to determinations made on the discretionary ground 

whereas the “reasonable likelihood” standard applied to the 
12 FONSECA-FONSECA V. GARLAND

prima facie ground. See Torres-Jacinto v. Holder, 531 F. 

App’x 817, 818–19 (9th Cir. 2013). But no other case—

published or unpublished—has offered a reasoned 

explanation for the standard applied. We address that gap in 

our case law today. 

3.

The government argues that the two standards are 

interchangeable, and that L-O-G-’s discussion of reasonable 

likelihood merely clarifies the “would likely change” 

standard articulated in Coelho.

4 We disagree. The

“reasonable likelihood” standard requires a petitioner to 

show more than a mere possibility she will establish a claim 

for relief, but it does not require the petitioner to demonstrate

she is more likely than not to prevail. See Boyde v. 

California, 494 U.S. 370, 380 (1990) (identifying the same 

parameters for establishing reasonable likelihood in the 

context of challenging jury instructions); see also Smith v. 

Holder, 627 F.3d 427, 437 (1st Cir. 2010) (holding that a

“‘reasonable likelihood’ means ‘showing a realistic chance 

that the petitioner can at a later time establish [a claim for 

relief]’” (quoting Guo, 386 F.3d at 564)). In contrast, the 

“would likely change” standard requires a petitioner to 

establish that it is at least more probable than not that the 

new evidence would change the outcome of the claim. The

“would likely change” standard plainly places a heavier 

burden on a petitioner than the “reasonable likelihood” 

4 The government surprisingly insists that the standards are alike despite 

taking a different stance in the Third Circuit. There, the government 

represented that the “reasonable likelihood” standard specifically 

applied when evaluating the prima facie ground and conceded that 

“reasonable likelihood” and “would likely change” were different 

standards. See Wright v. Att’y Gen., No. 19-3843, 2021 WL 4553022, at 

*4 (3d Cir. Oct. 5, 2021). 
FONSECA-FONSECA V. GARLAND 13

standard. Cf. Kaur, 2 F.4th at 837 (holding that “reasonable 

likelihood” and “more likely than not” are not equivalent). 

Today, we clarify any possible confusion in our case law 

and reaffirm that the “reasonable likelihood” standard 

applies to decisions made on the prima facie ground, and the 

“would likely change” standard applies to decisions made on 

the discretionary ground. Accord Guo, 386 F.3d at 563–64 

(holding that “reasonable likelihood” standard applies to 

prima facie ground for denial); Lopez v. Mukasey, 313 F. 

App’x 96, 100 (10th Cir. 2008) (same).

B.

We now turn to Fonseca-Fonseca’s case. The BIA 

concluded that Fonseca-Fonseca failed to provide “evidence 

of hardship, and thus, prima facie eligibility.” The agency, 

citing Coelho, concluded that “the respondent has not 

submitted persuasive new or previously unavailable 

evidence that is sufficient to meet his ‘heavy burden’ of 

showing that it is likely that the result would change if the 

proceedings were reopened.” When Fonseca-Fonseca 

pointed out the BIA’s error in his motion to reconsider, the 

BIA again applied the “would likely change” standard. 

Because the BIA erred by applying the wrong standard, 

we remand for the BIA to apply the correct standard in the 

first instance. 

PETITION GRANTED AND REMANDED.