FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

USHA BHASIN, 

Petitioner, No. 03-73481

v. Agency No.  A77-424-778 ALBERTO R. GONZALES,* Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 15, 2005—San Francisco, California

Filed September 1, 2005

Before: Donald P. Lay,* Betty B. Fletcher, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge B. Fletcher

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2). 

*The Honorable Donald P. Lay, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation. 

12037
COUNSEL

Robert B. Jobe, Esquire, San Francisco, California, for the

petitioner. 

Victor M. Lawrence, Office of Immigration Litigation, United

States Department of Justice, Washington, D.C., for the

respondent. 

12040 BHASIN v. GONZALES
OPINION

B. FLETCHER, Circuit Judge: 

Petitioner Usha Bhasin, a native and citizen of India, petitions for review of the Board of Immigration Appeals’s (“the

Board”) denial of her motion to reopen her proceedings following its decision dismissing her appeal of the Immigration

Judge’s (“IJ”) denial of applications for asylum and withholding of removal. Because we conclude that Bhasin established

prima facie eligibility for withholding of removal through evidence not available at the time of the original hearing, and

because the Board otherwise abused its discretion in denying

the motion to reopen, we grant the petition for review and

remand to the Board with instructions to either grant relief or

to remand to the Immigration Judge for a hearing on the

newly presented evidence. We also hold that it was error for

the Board to deny the motion as a matter of discretion under

the fugitive disentitlement doctrine.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

A. Facts Presented at the Hearing

Petitioner Bhasin appeared before an IJ on May 11, 1999,

and provided testimony supplementing her application for

asylum, together establishing the facts set forth below.

Because neither the IJ nor the Board made any adverse credibility finding, we accept the petitioner’s factual contentions as

true. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004);

Navas v. INS, 217 F.3d 646, 652, n.3 (9th Cir. 2000). 

Usha Bhasin, a 63-year-old native and citizen of India,

entered the United States on a B-1 non-immigrant visa on

February 23, 1998, and applied for asylum and withholding of

removal several months later. Her claims for relief are

founded on her fears that she will be attacked and possibly

killed by the Islamic militant group known as the “Jammu and

BHASIN v. GONZALES 12041
Kashmir Liberation Front” (“JKLF”), because of her eldest

son’s role as a government “inspector” in the Border Security

Force (“BSF”). Several members of her family have already

disappeared, and she claims that this persecution is on account

of membership in her familial social group. 

Bhasin’s son Yogesh Kumar joined the BSF in 1991 and

was posted on the border with Pakistan in the state of Jammu

and Kashmir in India. Petitioner joined him there and lived

peacefully for many years. Bhasin testified that her son

became “famous” for his arrests of many militants crossing

the border from Pakistan, and thus became a target of the militant organizations. In particular, when he arrested a leader of

the JKLF named Shabir Shah, the JKLF stepped up its search

for Yogesh. 

On the night of December 15, 1996, four armed men who

identified themselves as members of the JKLF arrived at Bhasin’s home, looking for Yogesh. When she informed them

that she did not know where he was, they slapped her, forcibly kidnaped her, and took her to a small hut in the woods

where they tied her to a tree and beat her severely. Bhasin testified that the men pulled out her hair and hit her with the butt

of a gun, at which time she “passed out.” She was held for

four days, tied to a cot, during which time the men repeatedly

asked her about the whereabouts of her son. She was told that

because of the arrest of their leader, Shabir Shah, they were

going to “eliminate each member of [Bhasin’s] family.”

Eventually, she was released on the side of the road and some

passers-by helped her to safety. 

When she returned home, she discovered that her younger

son, Pawan, was missing. He has yet to be found. Because of

the threats made to her by the members of JKLF, Bhasin

believes that her youngest son was abducted and likely killed

by the JKLF. Soon after the disappearance of Pawan, Bhasin

contacted the BSF, who in turn contacted Yogesh and directed

him to return home. Out of safety concerns, the BSF decided

12042 BHASIN v. GONZALES
to transfer Yogesh to another part of the Pakistani border.

Bhasin then relocated to Delhi, south of Jammu and Kashmir.

Bhasin testified that after several months in Delhi, BSF

officials visited her at her home and informed her that Yogesh

had been missing for a week. In support of her asylum application, Bhasin submitted a letter she received from a BSF

Commandant confirming that Yogesh was missing. Further

investigation led to the conclusion that Yogesh and some

other BSF agents had been captured or killed along the Pakistani border, likely by the JKLF, though no “concrete results”

of the investigation were revealed. 

A few months later, on November 28, 1997, two men

knocked on Bhasin’s door. When she asked who it was, they

responded that they would not “spare” her, that they had

already abducted her two sons, and that they would kill her.

As Bhasin hid, the men threw a piece of paper at or through

the door, fired shots in the air, and left. The note repeated that

they had taken the sons, that one by one they would eliminate

Bhasin’s family, and that they would spare no one. Bhasin

reported the incident to the BSF Commandant, but he told her

that it was impossible to provide security for BSF families. 

Frightened for her life, Bhasin left India and entered the

United States on a B-1 visitor visa on February 23, 1998. At

the time of the original hearing before the IJ, Bhasin reported

that she spoke occasionally with her younger daughter on the

phone, who reported that the neighbors had been asked by

presumed JKLF agents about where Bhasin was. At that time,

the younger daughter lived with Bhasin’s brother, while her

older daughter, Indu, was married and lived in the state of

Uttar Pradesh, to the south of Delhi. Yogesh’s wife was living

in the state of Punjab with her parents. 

BHASIN v. GONZALES 12043
B. Proceedings Before the IJ and Board

The IJ found that Bhasin had established a well-founded

fear of persecution,1 but denied eligibility for asylum and

withholding because the persecution was not “on account of”

one of the five enumerated grounds. Specifically, the IJ stated,

“Here, respondent may have a well-founded fear of harm, but

that harm stems from retribution threatened by the JKLF

because of the actions taken by her son, Yogesh Kumar, in the

arrest of JKLF leadership.” The IJ specifically rejected Bhasin’s claims that she had been persecuted on account of an

imputed political opinion and on account of her membership

in a particular social group, namely her family. 

The Board affirmed. First, the Board did not specifically

address whether Bhasin had established past persecution or a

well-founded fear of future persecution, but obliquely stated,

“Even accepting the truth of the testimony, the Immigration

Judge was correct in holding that the respondent failed to

prove persecution on account of” either protected ground.

Specifically, the Board rejected Bhasin’s claim that she had

been persecuted on account of imputed political opinion

because the “actions of the militants reflect a vendetta against

the respondent’s eldest son and not a belief that the respondent held certain political opinions.” Similarly, the Board concluded that Bhasin had failed to establish persecution on

account of membership in her family social group because the

“respondent was victimized because the JKLF wanted to

locate her son, and perhaps as a means of retribution against

1The IJ’s oral decision is slightly equivocal on whether he was making

a finding based on past persecution or on a well-founded fear of future

persecution. The IJ found that, “Here, respondent may have a wellfounded fear of harm, but . . . .” In addition, the hearing transcript clearly

indicates that the IJ believed that Bhasin had a well-founded fear of persecution, in which he stated, “such persons may have a well-founded fear of

harm, which I believe she does, but . . .” , and “Now I do believe that you

have a legitimate fear from harm . . . .” 

12044 BHASIN v. GONZALES
the son, but not on account of membership in a particular

social group.” The Board then made the following finding:

Moreover, other close members of the respondent’s

family are living in India without difficulty. The

JKLF has not persecuted the respondent’s brother,

two daughters, or one daughter-in-law, the wife of

her missing eldest son. 

It is later-discovered evidence presented in the motion to

reopen that rebuts this critical finding. Finally, the Board concluded that Bhasin was not eligible for asylum and withholding because Bhasin “has not established that her alleged

persecution is countrywide.” 

C. Facts Presented in the Motion to Reopen and

Supporting Declaration

Bhasin timely moved to reopen her proceedings in order to

present previously unavailable evidence, focusing solely on

“membership in a particular social group” as a protected

ground.2 She presented evidence in the form of a sworn declaration that her two daughters and her son-in-law (who live

together), had received death threats while the appeal before

the Board was pending, including blank letters dotted with

blood, blood-stained rags left on their doorstep, and violent

verbal threats over the telephone similar to the threats made

to Bhasin herself when she was in India. In one phone call,

Bhasin’s daughter was told that her brothers were missing,

and that everyone in her family would soon disappear. 

Bhasin also testified in her declaration that both her daughters and her son-in-law have now disappeared; she has not

heard from them since October 24 or 25, 2002. She continued

to try to telephone them for a period of six months. She has

2Bhasin has similarly restricted her petition for review to the social

group protected ground. 

BHASIN v. GONZALES 12045
concluded that their phone has been disconnected. When Bhasin contacted her daughters’ neighbors, they also informed her

that the daughters and son-in-law had not been seen since that

date. 

D. Board’s Denial of the Motion to Reopen

On September 9, 2003, the Board denied Bhasin’s motion

to reopen. After reciting some of the basic facts contained

within the motion and supporting affidavit, the Board provided the following analysis:

We find that the respondent’s declaration is selfserving and that it is not highly probative in her

case. 

By means of the current motion, which is unsupported by any documentation except for the respondent’s own declaration and a copy of our April 2003

decision, the respondent has failed to satisfy the

heavy evidentiary burden relevant to reopening. See

Matter of Coelho, supra. 

(emphasis added). The Board then went on to deny relief on

a separate ground, namely the fugitive disentitlement doctrine: 

In addition, we find that denial of the motion to

reopen is appropriate as a matter of discretion. . . .

the respondent failed to appear for removal from the

United States when she was ordered to report on July

16, 2003, which is substantiated by a notice in the

file. We note that the respondent submitted the present motion on July 15, 2003, when her scheduled

removal was imminent. Her failure to report in

accordance with the removal order operated as a

serious adverse discretionary factor warranting the

12046 BHASIN v. GONZALES
denial of this motion. See Matter of Barocio, 19 I&N

Dec. 255 (BIA 1985).

ANALYSIS

Bhasin challenges both the denial of the motion to reopen

on the merits and the discretionary denial on the basis of the

fugitive disentitlement doctrine. We review the Board’s denial

of a motion to reopen for abuse of discretion, regardless of the

underlying relief requested. INS v. Doherty, 502 U.S. 314,

323 (1992). We review the Board’s determination of purely

legal questions de novo. Singh v. INS, 213 F.3d 1050, 1052

(9th Cir. 2000). Factual findings are reviewed for substantial

evidence. Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996). 

The Board has the discretion to deny a motion to reopen

“even if the party moving has made out a prima facie case for

relief.” 8 C.F.R. § 1003.2(a). However, we will reverse a

denial of a motion to reopen if the denial was “arbitrary, irrational, or contrary to law.” Singh v. INS, 295 F.3d 1037, 1039

(9th Cir. 2002) cert. denied, 123 S. Ct. 2605 (2003) (quoting

Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir. 1985)). In addition, the Board must show proper consideration of all factors,

both favorable and unfavorable, in determining whether to

grant a motion to reopen, Virk v. INS, 295 F.3d 1055, 1060

(9th Cir. 2002), and must articulate its reasons for denying

such a motion. Romero-Morales v. INS, 25 F.3d 125, 129 (9th

Cir. 1994). 

A. Denial of Motion on the Merits

A motion to reopen must “state the new facts that will be

proven at a hearing to be held if the motion is granted and

shall be supported by affidavits or other evidentiary material.”

8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R. § 1003.2(c)(1) (2003).

The evidence presented must be “material,” and the applicant

must show that the evidence “could not have been discovered

or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1)

BHASIN v. GONZALES 12047
(emphasis added). An applicant must demonstrate that the

new evidence, when considered together with the evidence

presented at the original hearing, would establish prima facie

eligibility for the relief sought. cf. Eide-Kahayon v. INS, 86

F.3d 147, 150 (9th Cir. 2003) (stating that motions to reopen

can be denied for failure to comply with these requirements).

1. Prima Facie Eligibility for Asylum or Withholding

In order for a person to be eligible for asylum, he must

demonstrate a well-founded fear of persecution on account of

one of five protected grounds. 8 U.S.C. §§ 1158(b)(1)

and 1101(a)(42)(A). A well-founded fear must be subjectively

and objectively reasonable. Mgoian v. INS, 184 F.3d 1029,

1035 (9th Cir. 1999); Montecino v. INS, 915 F.2d 518, 521

(9th Cir. 1990). The subjective prong is satisfied upon credible testimony that the applicant genuinely fears harm. Singh

v. Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995). The objective prong may be satisfied “ ‘in one of two ways: either by

establishing that she has suffered persecution in the past or by

showing that she has a good reason to fear future persecution.’ ” Sael v. Ashcroft, 386 F.3d 922, 924-925 (9th Cir.

2004) (quoting Mgoian, 184 F.3d at 1035). 

[1] A person who establishes that he or she was subjected

to persecution in the past is entitled to a presumption of a

well-founded fear of future persecution. Popova v. INS, 273

F.3d 1251, 1259 (9th Cir. 2001). Otherwise, an applicant must

generally show an individualized, rather than a generalized,

risk of persecution. Hoxha v. Aschcroft, 319 F.3d 1179, 1182

(9th Cir. 2003). This may be demonstrated in several ways,

either by establishing “a pattern or practice of persecution of

persons similarly situated,” or by showing membership in a

“disfavored group” coupled with a showing that the individual

is likely to be “targeted” for persecution as a member of that

group. Sael, 386 F.3d at 925. 

[2] Next, the person seeking relief must also show that the

feared persecution is being carried out “on account of” one of

12048 BHASIN v. GONZALES
the five protected grounds enumerated in the statute, including “membership in a particular social group.” See INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992). This may be established by direct or circumstantial evidence. Sangha v. INS,

103 F.3d 1482, 1486-87 (9th Cir. 1997). 

[3] We have recently reaffirmed that “family membership

may constitute membership in a ‘particular social group.’ ”

Thomas v. Gonzales, 409 F.3d 1177, 1180 (9th Cir. 2005) (en

banc). Specifically, we held that white South African family

members who were “targeted on account of their shared,

immutable, characteristic, namely, their familial relationship”

with a hated boss met 8 U.S.C. § 1101’s requirement that the

persecution be on account of one of the five protected

grounds. Id. at 1189. 

The standard for establishing eligibility for withholding of

removal is more stringent. An applicant must demonstrate a

“clear probability” of persecution if removed, meaning that it

is “more likely than not” that persecution would occur. AlHarbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). 

a. Past Persecution or a Well-founded Fear of Future

Persecution

As explained above, the IJ already determined that Bhasin

has established either past persecution (entitling her to a presumption of a well-founded fear of future persecution) or a

well-founded fear of future persecution. The Board did not

disturb this finding. We conclude that both findings are supported by substantial evidence. 

b. Nexus to a Protected Ground

[4] In light of the evidence presented at the original hearing

and the evidence submitted with the motion to reopen that

would likely be proven if another hearing were granted, we

conclude that Bhasin has established a prima facie case of

BHASIN v. GONZALES 12049
persecution “on account of” membership in a particular social

group. Bhasin testified at the original hearing that she was

attacked, kidnaped, beaten until she “passed out,” and

detained for four days tied to a cot because of the actions of

her son. And although it is well-recognized that “[p]ersecutors

do not always take the time to tell their victims all the reasons

they are being beaten or kidnaped or killed,” Gafoor v. INS,

231 F.3d 645, 650 (9th Cir. 2000), in this case they did. Bhasin’s captors specifically told her that because Yogesh had

arrested their leader, Shabir Shah, they were going to “eliminate each member of [Bhasin’s] family.” When she was

released, she discovered that her younger son had disappeared. Soon afterward, Yogesh himself went missing. Bhasin

was again threatened a few months later; at that time her persecutors told her that they had taken her sons, and reiterated

that her whole family would be eliminated. 

[5] Since the original hearing, Bhasin has learned that her

daughters and son-in-law were threatened in a similar manner,

receiving verbal threats, blood-stained blank letters, and

blood-soaked rags delivered to the house. The verbal threats

specifically referred to other members of the family disappearing, and reiterated that everyone in her family would soon

disappear. In October 2002, Bhasin’s two daughters and sonin-law disappeared, and have not been heard from since. We

conclude that this is a strong prima facie case of persecution

on account of membership in a familial “social group.” 

Both the IJ and the Board originally denied relief on the

merits because each said that the JKLF was not motivated by

membership in a social group, but rather by a desire to locate

Yogesh, or as a means of retribution against Yogesh. In support of this conclusion, the Board stated:

The respondent was victimized because the JKLF

wanted to locate her son, or perhaps as a means of

retribution against the son, but not on account of

membership in a particular social group. Moreover,

12050 BHASIN v. GONZALES
other close members of the respondent’s family are

living in India without difficulty. The JKLF has not

persecuted the respondent’s brother, two daughters,

or one daughter-in-law, the wife of her missing

eldest son. 

In her declaration in support of her motion to reopen, however, Bhasin presented evidence that completely undermined

this rationale for concluding that the “on account of” requirement had not been satisfied. Indeed, her affidavit established

that three more relatives have disappeared, two of them the

exact relatives that the Board referenced as not being targeted

for persecution, and which at the time belied her social group

claim.3See Cuadras v. United States, 910 F.2d 567, 571 (9th

Cir. 1990) (concluding that claims of family-based persecution were undercut by the fact that relatives still lived in home

country). It is because of this direct relationship between the

Board’s justification for its initial denial and Bhasin’s newly

presented evidence, that we are somewhat perplexed by the

Board’s statement that the evidence presented in the affidavit

is “not highly probative in her case.”

4

3The government argues that Bhasin is improperly challenging the

Board’s original merits determination, which has become final, through a

motion to reopen. We clarify that we are not reviewing the original Board

decision directly. Our task is simply to determine whether, in light of the

evidence presented both at the original hearing and that which would

likely be proved through new evidence to be presented at a subsequent

hearing were the motion to reopen to be granted, the petitioner has established a prima facie case of eligibility for asylum. Eide-Kahayon v. INS,

86 F.3d 147, 150 (9th Cir. 2003). It is important to our analysis that Bhasin’s newly-presented evidence directly addressed the Board’s reasons for

its initial denial of eligibility. 

4The government argues that the Board’s statement in its first decision

that relatives remained unharassed in India was “simply dicta.” We disagree. The Board relied on this point to support its conclusion that the persecution was motivated by retribution against Yogesh rather than by

membership in his family. In any case, Bhasin’s declaration addresses and

undermines both parts of the Board’s rationale. First, it is apparently no

longer true that Bhasin’s relatives remain unharmed. Second, because

BHASIN v. GONZALES 12051
[6] We address one additional point. The government

argues that the Board’s characterizations of Bhasin’s affidavit

as “self-serving” and “unsupported by any documentation”

were not the reasons for the Board’s denial of the motion to

reopen. Rather, according to the government, the Board

denied the motion because the Bhasin did not meet her “heavy

burden.” This argument strains credulity. The Board clearly

discredited Bhasin’s affidavit because it found it was “selfserving” and “unsupported,” grounds that are not only contrary to this circuit’s established case law,5

 but also completely inappropriate in this case, where Bhasin had already

testified credibly and her testimony had been credited by the

IJ. By labeling her testimony “self-serving,” the Board implicitly found Bhasin’s testimony to be incredible because Bhasin

had a motive to be untruthful. We have long held that credibility determinations on motions to reopen are inappropriate.

See Ghadessi v. INS, 797 F.2d 804, 806 (9th Cir. 1986) (“As

motions to reopen are decided without a factual hearing, the

Board is unable to make credibility determinations at this

Yogesh has already disappeared, apparently into the hands of the JKLF,

further attacks on family members are inconsistent with any notion that

the JKLF is seeking information about his whereabouts or seeking retribution for his actions. 

5Ladha v. INS, 215 F.3d 889, 905 n.17 (9th Cir. 2000) (noting that

exclusion of “self-serving” documents is “not sound practice”); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003) (“it is inappropriate

to base an adverse credibility determination on an applicant’s inability to

obtain corroborating affidavits from relatives or acquaintances living outside of the United States—such corroboration is almost never easily available.”) (quoting Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir. 2000); see

also Ghadessi v. INS, 797 F.2d 804, 806 (9th Cir. 1986) (stating that

unless alleged facts in support of a motion to reopen are “inherently unbelievable,” corroborating evidence is generally not required to establish a

prima facie case). We recognize that the REAL ID Act recently amended

8 U.S.C. § 1158(b)(1)(B)(ii) and 8 U.S.C. § 1231(b)(3)(C) to allow the

trier of fact to require corroborating evidence. Here we address only evidence submitted in support of a motion to reopen that was never submitted

to the trier of fact, namely the IJ. 

12052 BHASIN v. GONZALES
stage of the proceedings.”) Indeed, facts presented in affidavits supporting a motion to reopen must be accepted as true

unless inherently unbelievable. Limsico v. INS, 951 F.2d 210,

213 (9th Cir. 1991). We now reiterate that the self-serving

nature of a declaration in support of a motion to reopen is not

an appropriate basis for discrediting its content. 

2. Evidence Not Previously Available

The government argues that denial of the motion to reopen

was also proper because the information presented in Bhasin’s

declaration in support of her motion could have been presented “at an earlier stage in the proceedings.” Yet the Board

did not rely on this rationale in denying the motion. We “cannot affirm the BIA on a ground upon which it did not rely.”

Navas v. INS, 217 F.3d 646, 658 n. 16 (9th Cir. 2000). In any

case, both the statute and the regulation indicate that the evidence must not have been available to be presented “at the

former hearing.” 8 U.S.C. § 1229a(c)(6)(B); 8 C.F.R.

§ 1003.2(c)(1). The proffered testimony concerns events that

happened after the “former hearing” before the IJ. The government’s argument that the information was previously

available because it became available during the pendency of

the appeal to the Board does not comport with the statute and

regulation. 

[7] Overall, we conclude that the Board abused its discretion in refusing to reopen Bhasin’s proceedings. She provided

new evidence that if proved would have established prima

facie eligibility for relief. Although the Board can deny such

a motion as a matter of discretion even where a prima facie

case has been shown, such discretion is not unbounded. Here,

the Board improperly discredited her testimony, calling it

“self-serving.” In addition, the Board did not take into proper

consideration relevant factors weighing in favor of reopening,

including the nature of the harassment endured by her daughters and son-in-law and their disappearance after she left

India. Likewise the Board incorrectly determined that BhaBHASIN v. GONZALES 12053
sin’s testimony regarding her family was “not highly probative in her case.” This finding is unsupported by substantial

evidence, especially because her new testimony addressed one

of the key problems identified by the Board in its initial order

denying relief. Under these circumstances, we have little trouble concluding that the Board’s decision to deny the motion

to reopen was “arbitrary, irrational, or contrary to law.” Singh,

295 F.3d at 1039. 

B. Discretionary Denial of the Motion under the Fugitive

Disentitlement Doctrine

Bhasin also contends that the Board abused its discretion

when it denied her timely motion to reopen as a matter of discretion. In issuing its discretionary denial, the Board determined that denial of the motion was appropriate because she

had “failed to report in accordance with the removal order”

and that this “operates as a serious adverse discretionary factor warranting denial of this motion.” The Board cited to Matter of Barocio, 19 I&N Dec. 255 (BIA 1985), which holds

that persons who choose to “disregard the order of deportation

against them by refusing to report on their appointed date of

departure” may have “their motion to reopen [ ] denied as a

matter of discretion.” Bhasin contends that the Board repeatedly failed to properly serve her or her attorney with notice

of the removal order and other critical documents, and that

she should therefore not be penalized for her failure to report.

[8] The “fugitive disentitlement doctrine” is a “severe sanction that we do not lightly impose.” Antonio-Martinez v. INS,

317 F.3d 1089, 1091 (9th Cir. 2003) (internal quotations omitted). Where appropriate, the doctrine serves the legitimate

policies of deterring the improper conduct of flight and preventing the issuance of unenforceable judicial orders. Id. at

1091-92 (citing Paretti v. United States, 143 F.3d 508, 511

(9th Cir. 1998) and United States v. Gonzalez, 300 F.3d 1048,

1051 (9th Cir. 2002)). 

12054 BHASIN v. GONZALES
[9] We conclude that the Board abused its discretion in

denying the motion to reopen on the basis of the fugitive disentitlement doctrine. The record makes clear that on more that

one occasion, critical documents were sent to wrong

addresses by the agency. First, when Bhasin’s original attorney in this matter filed his notice of appearance, he used an

address on Blake Street in Berkeley, California. Though that

attorney never filed a notice of change of address, the agency

inexplicably began sending correspondence to an address on

Sansome Street in San Francisco, California. When the Board

issued its initial decision denying eligibility for asylum and

withholding of removal, it mailed its decision to a second

address on Sansome Street in San Francisco, California. During this period, Bhasin’s original attorney consistently used

his Berkeley address when corresponding with the agency.

Bhasin asserts that this failure to mail the initial denial of her

administrative appeal to the correct address resulted in her

failure to file a timely petition for review of the Board’s original decision. Similarly, the agency’s notice to report for

removal was sent to the second Sansome Street address, an

incorrect address for Bhasin’s first attorney. 

Second, after Bhasin’s current attorney had filed a notice of

appearance in the matter, the agency mailed its opposition to

the motion to reopen only to Bhasin, not to either of her counsel. Yet even this mailing was sent to an incorrect address.

Bhasin’s stated address throughout the proceedings was 1489

Fruitdale Avenue, Apartment 15, in San Jose, California. The

opposition to the motion to reopen, which argued that Bhasin’s case should be dismissed under the fugitive disentitlement doctrine, was sent to 1498 Fruitdale Avenue, the last

two digits of the numerical address transposed. For this reason, Bhasin claims that she was never given the opportunity

to argue against the agency’s assertion that she had become

a fugitive from justice. 

[10] Under these extraordinary circumstances of failed

notice procedures, we conclude that it was inappropriate for

BHASIN v. GONZALES 12055
the Board to deny Bhasin’s timely motion to reopen on the

basis of the fugitive disentitlement doctrine. Not only are

there serious questions as to whether Bhasin ever properly

received the notice to appear for removal, this case is unlike

the cases in which the Board and this court have labeled

someone a fugitive from justice. For example, in Matter of

Barocio, relied upon by the Board here, the agency presented

to the Board “return receipts signed by both the male respondent [Barocio] and the office of his prior attorney which verify that they received the notice to report.” 19 I&N Dec. at

256. The agency also detailed its efforts to locate the respondents, including attempts to locate them at “their last known

address, the male respondent’s last known place of employment, the postal service, the California Department of Motor

Vehicles, and the local gas and telephone companies.” Id.; see

also Antonio-Martinez, 317 F.3d at 1091 (applying fugitive

disentitlement doctrine where immigrant had lost contact with

counsel and the agency and all efforts to contact him had

failed for over two years). We find no such deliberate flouting

of the immigration laws in the present case. 

CONCLUSION

In sum, we conclude that the Board improperly discounted

Bhasin’s testimony in her affidavit presented in conjunction

with her motion to reopen. If proved, the facts asserted would

establish a strong prima facie case of eligibility for asylum

and withholding of removal. Given the Board’s improper

implicit credibility findings and its failure to consider factors

in Bhasin’s favor, we conclude that the Board abused its discretion in denying Bhasin’s motion to reopen. Likewise, in

light of the agency’s numerous flawed mailings of notice in

this case, invocation of the fugitive disentitlement doctrine

was inappropriate, and discretionary denial of the motion to

reopen was therefore an abuse of discretion. We remand this

matter to the Board for further proceedings. 

PETITION GRANTED. REMANDED. 

12056 BHASIN v. GONZALES