RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0011p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

E. A. C. A.,

Petitioner,

v.

JEFFREY A. ROSEN, Acting Attorney General,

Respondent.

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No. 20-3216

On Petition for Review from the Board of Immigration Appeals;

No. A 209 885 750.

Argued: December 2, 2020

Decided and Filed: January 12, 2021

Before: MOORE, GILMAN, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: Rachel Naggar, CATHOLIC LEGAL IMMIGRATION NETWORK, INC., Silver 

Spring, Maryland, for Petitioner. Joanna L. Watson, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Rachel Naggar, CATHOLIC 

LEGAL IMMIGRATION NETWORK, INC., Silver Spring, Maryland, for Petitioner. Joanna L. 

Watson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. E.A. C.A. (“E.A.”) petitions this court for 

review of the order of the Board of Immigration Appeals (“BIA”) denying her motion to reopen 

an in absentia removal order. Because the BIA abused its discretion in concluding that E.A. had 

>
No. 20-3216 E. A. C. A. v. Rosen Page 2

not established that exceptional circumstances justified her failure to appear, we GRANT the 

petition for review, VACATE the removal order, and REMAND for further proceedings 

consistent with this opinion.

I. BACKGROUND

E.A. is a native and citizen of El Salvador. Administrative Record (“A.R.”) at 212 

(Notice to Appear). In November 2016, when E.A. was twelve years old, she unlawfully entered 

the United States as an unaccompanied minor. Id. The Office of Refugee Resettlement (“ORR”) 

released E.A. to her mother, who resided in New York. Id. at 153 (Verification of Release). 

E.A. failed to appear at a June 6, 2018 hearing and was ordered removed in absentia. A.R. at 

174 (Removal Order).

A. E.A.’s Removal Proceedings

On March 3, 2017, the U.S. Department of Homeland Security (DHS) mailed a Notice to 

Appear to E.A. A.R. at 213 (2017 Notice to Appear). Shortly after ORR released E.A. to her 

mother, her family relocated to Arkansas to help take care of her aunt’s children. Id. at 144 (Aff. 

of E.A.), 148–49 (Aff. of Yessenia Carolina Anaya Ortiz). In Arkansas, Catholic Charities 

assisted E.A. in preparing a Motion to Change Venue from Executive Office of Immigration 

Review (“EOIR”) New York City to EOIR Memphis, Tennessee and her Change of Address 

Form, both of which she filed pro se. Id. at 149 (Aff. of Anaya Ortiz), 203–06 (Mot. to Change 

Venue), 207–08 (Change of Address Form).

On May 15, 2017, the Immigration Judge (“IJ”) granted E.A.’s Motion to Change Venue. 

Id. at 202 (Order Granting Changing Venue). Latino Memphis’s Remote Access Initiative, 

which represents unaccompanied minors who live more than 100 miles from the Memphis EOIR, 

agreed to represent E.A. pro bono in her immigration proceedings. Id. at 190 (Mot. to Change 

Docket). On October 30, 2017, DHS sent E.A. a “Notice of Hearing in Removal Proceedings” at 

the Memphis EOIR for January 3, 2018. Id. at 187. Latino Memphis appeared on behalf of E.A. 

in a telephonic hearing on January 3, 2018. Id. at 183–84. On the date of the hearing, DHS sent 

E.A. a notice that it had scheduled her master-calendar hearing for June 6, 2018 at the Memphis 

EOIR. Id. at 175 (Notice of Hr’g). A few months later, on April 24, 2018, E.A.’s counsel filed a 
No. 20-3216 E. A. C. A. v. Rosen Page 3

motion to withdraw its representation of E.A., stating that E.A. had moved out of Latino 

Memphis’s covered geographic area to New York, counsel was no longer employed at Latino 

Memphis, and there had been a “substantial breakdown in communication” between the parties. 

Id. at 176–78 (Mot. to Withdraw as Att’y of Record).

B. Failure to Appear

E.A. failed to appear at her June 6, 2018 master-calendar hearing. Id. at 174 (Removal 

Order). In E.A.’s absence, the IJ noted that she had admitted the factual allegations in the NTA 

and conceded removability at her prior hearing, and ordered her removed in absentia. Id.

On November 30, 2018, E.A., with the assistance of counsel, filed a motion to reopen her 

immigration proceedings. Id. at 130 (Mot. to Reopen). This time, Catholic Charities was able to 

represent E.A. in her motion to reopen the case. Id. E.A. asserted that, based on the totality of 

circumstances, exceptional circumstances excused her failure to appear at her immigration 

hearing. First, E.A. was unable to obtain legal counsel to assist her in changing her hearing 

location. Between the initial hearing and the June 6, 2018 hearing, E.A.’s mother moved the 

family back to New York because her sister had returned to Arkansas to take care of the children 

and her mother’s partner, Carlos, had a job in New York. Id. at 145 (Aff. of E.A.), 149 (Aff. of 

Anaya Ortiz). After E.A. moved outside Memphis Latino’s geographic area, she was also unable 

to find new representation in New York. In a declaration submitted with E.A.’s motion to 

reopen, her mother states that she brought E.A. for a consultation with Catholic Charities in 

Amityville, New York for assistance with E.A.’s case. Id. at 149 (Aff. of Anaya Ortiz). But 

Catholic Charities was unable to accept new cases, including E.A.’s case, at that time. Id. 

Unable to find pro bono representation, E.A.’s mother tried to hire a private immigration 

attorney but could not afford the hefty attorney’s fees. Id. at 150. Without legal representation, 

E.A.’s mother did not know how to change the address of the hearing herself. Id. Her partner 

Carlos called the Memphis EOIR to change E.A.’s address but was unable to change it because 

he did not know E.A.’s alien number. Id.

Second, E.A. was unable to travel from New York to Memphis to attend the hearing inperson. E.A.’s mother was unable to drive E.A. to Memphis herself because she had just given 
No. 20-3216 E. A. C. A. v. Rosen Page 4

birth on May 26, 2018—ten days prior to E.A.’s hearing. Id. E.A.’s mother did not want E.A. to 

fly to the hearing by herself because E.A. did not have documentation. Id. Carlos was unable to 

drive her to the hearing because it would take nearly one week to drive her to Memphis and back 

and he was unable to miss that much work. Id.

Further, E.A. asserted that she had reason to appear at her hearing because she was 

eligible for immigration relief, namely Special Immigrant Juvenile Status (“SIJS”). Id. at 151. 

While living in Arkansas, E.A.’s mother had begun the process of obtaining the required orders 

for SIJS. Id. E.A.’s mother abandoned the process when the family returned to New York but 

stated in her affidavit that she intended to file a new Guardianship petition in New York and then 

file an SIJS petition. Id.1

The IJ denied E.A.’s request to reopen her removal proceedings on the ground that she 

had failed to establish that exceptional circumstances prevented her from appearing at her 

hearing. Id. at 11 (IJ Decision). The IJ did not find E.A.’s reasons for being unable to travel to 

the Memphis EOIR to be persuasive. Id. at 12–13. The IJ dismissed difficulties posed by E.A.’s 

mother’s recent delivery of a baby because “respondent’s mother knew she was pregnant and the 

date of Respondent’s hearing,” and E.A. “could have made arrangements or contacted the Court 

prior to the hearing.” Id. at 12. As to E.A.’s inability to travel from New York to Memphis, the 

IJ blamed E.A. for not “attempt[ing] to contact anyone else that may have been able to provide 

transportation.” Id. at 13. Further, the IJ faulted E.A. for failing to file another motion to change 

venue, as she had previously done. Id. at 13. The IJ, however, did not acknowledge E.A.’s 

mother’s assertion that she had received assistance filing the Motion to Change Venue the first 

time, and that she was unable to obtain legal assistance the second time. Notably, the IJ’s 

decision does not mention E.A.’s claims that she was eligible for SIJS.

1On March 5, 2020, a New York state court entered an order granting guardianship to E.A.’s mother 

because her father abandoned her, and it would not be in her best interest to return to El Salvador. Pet.’s Br., Add. at 

33. In May 2020, E.A. submitted a petition for SIJS to United States Citizenship and Immigration Services 

(“USCIS”). Id. at 34. USCIS approved her SIJS application on July 6, 2020 and assigned a priority date of May 4, 

2020. Pet.’s Reply Br. at 6 n.2, Add. at 1 (Form I-797C, Notice of Action). As of the December 2020 Visa Bulletin, 

visas are available for special immigrants (category EB4) from El Salvador to adjust their status if their priority date 

is prior to February 2018. If DHS removes E.A. prior to approving her visa, she will be unable to apply for 

adjustment of status. See 8 U.S.C. § 1101(a)(27)(J).
No. 20-3216 E. A. C. A. v. Rosen Page 5

E.A. timely appealed the IJ’s decision to the BIA, which subsequently affirmed the IJ’s 

denial. First, the BIA stated that E.A.’s minor age was not per se an exceptional circumstance to 

excuse her failure to appear at the hearing. Id. at 3 (BIA Decision). The BIA then turned to the 

totality-of-the-circumstances test and affirmed the IJ’s finding that E.A. had failed to show that 

her failure to appear at the scheduled hearing was the result of exceptional circumstances. Id. at 

4. The BIA reiterated the IJ’s finding that, although her mother had recently had a baby, this was 

not a compelling excuse because her “mother knew of [E.A.’s] hearing date and that [the mother] 

was pregnant in advance, and that [E.A.] could have contacted the Immigration Court prior to the 

hearing.” Id. The BIA dismissed as insufficient E.A.’s mother’s assertion that her partner 

contacted the immigration court prior to the hearing but was unable to change the date because 

he did not know E.A.’s alien number. Id. Even if E.A.’s mother had prior assistance in filing 

E.A.’s Motion to Change Venue and Change of Address Forms, the forms stated that E.A. filed 

pro se and she failed to explain adequately why she could not file the second set of forms pro se. 

Id. E.A. had also not attempted to find someone else to transport her from New York to the 

Memphis EOIR. Id. Further, the BIA found that E.A. had not provided sufficient evidence that 

she was eligible for SIJS. Id.

Nevertheless, the BIA concluded that “even if the respondent had established 

‘exceptional circumstances’ to rescind the in absentia removal order, reopening her removal 

proceedings would not be warranted as she failed to establish prima facie eligibility for any form 

of relief and has not shown that the outcome of her case would change if the case were 

reopened.” Id.

2

E.A. timely petitioned this court for review. We have jurisdiction to hear petitions for 

review of final removal orders, 8 U.S.C. § 1252(a), including orders entered in absentia, 

8 U.S.C. § 1229a(b)(5)(D).

2The BIA also declined to grant her motion to reopen her case sua sponte because she had failed to show 

exceptional circumstances meriting this relief. A.R. at 4.
No. 20-3216 E. A. C. A. v. Rosen Page 6

II. STANDARD OF REVIEW

“We review the denial of a motion to reopen under the abuse-of-discretion standard.” 

Acquaah v. Holder, 589 F.3d 332, 334 (6th Cir. 2009). In the case of a denial of a motion to 

reopen, we look to whether the denial “was made without a rational explanation, inexplicably 

departed from established policies, or rested on an impermissible basis such as invidious 

discrimination against a particular race or group.” Bi Feng Liu v. Holder, 560 F.3d 485, 490 (6th 

Cir. 2009) (quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)). “Because the BIA 

has such broad discretion, a party seeking reopening or reconsideration bears a heavy burden.” 

Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (quotation marks omitted). Despite this 

deferential standard, “[t]he Board’s discretion is broad but it is not unlimited. It may not 

exercise its discretion in a way that is arbitrary, irrational or contrary to law.” Daneshvar v.

Ashcroft, 355 F.3d 615, 625–26 (6th Cir. 2004). We review legal determinations de novo. Bi

Feng Liu, 560 F.3d at 490.

III. DISCUSSION

An IJ may rescind an order of removal entered in absentia in limited circumstances. In

E.A.’s case, an order of removal entered in absentia may be rescinded “upon a motion to reopen 

filed within 180 days after the date of the order of removal if the alien demonstrates that the 

failure to appear was because of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i). The 

statute defines “exceptional circumstances” as those “beyond the control of the” petitioner, “such 

as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the 

alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less 

compelling circumstances.” Id. § 1229a(e)(1). When determining whether a petitioner’s 

circumstances meet this standard, the IJ considers the “totality of the circumstances.” Acquaah, 

589 F.3d at 335 (quoting Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003)). The question, then, 

is whether the BIA abused its discretion in determining that no exceptional circumstances 

justified E.A.’s failure to appear.

E.A. raises two arguments on appeal. First, E.A. argues that the BIA abused its 

discretion by concluding that no exceptional circumstances justified her failure to appear at her 
No. 20-3216 E. A. C. A. v. Rosen Page 7

hearing. Second, she argues that the BIA made several legal errors in its analysis and thus we 

should remand to the BIA to reconsider its decision. We hold that the BIA abused its discretion 

by denying E.A.’s motion to reopen. E.A. established that exceptional circumstances prevented 

her from attending her immigration hearing. In reaching its conclusion, the BIA incorrectly 

applied the totality-of-the-circumstances test and improperly required that E.A. establish prima 

facie eligibility for relief in order to rescind her in absentia removal order.

A. E.A. Established Exceptional Circumstances

The BIA abused its discretion by finding that E.A. did not establish exceptional 

circumstances justifying her failure to appear at her immigration hearing. Based on the totality 

of the circumstances, including E.A. mother’s recent childbirth, E.A.’s young age, E.A.’s 

mother’s failed attempts to obtain counsel to help change the address of E.A.’s hearing, and 

E.A.’s inability to travel from New York to Memphis for the hearing, we hold that E.A. 

established exceptional circumstances.

E.A.’s mother’s recent childbirth is a serious medical condition that supports reopening. 

The statute defining “exceptional circumstances” that justify reopening an immigration 

proceeding lists the “serious illness of the alien, or serious illness or death of the spouse, child, or 

parent of the alien” as an example. 8 U.S.C. § 1229a(e)(1). Childbirth is a serious medical event 

that necessitates a recovery period. See Touvell v. Ohio Dep’t of Mental Retardation

& Developmental Disabilities, 422 F.3d 392, 403 (6th Cir. 2005) (noting that the Family Medical 

Leave Act’s legislative history included as “examples of serious medical conditions . . . ongoing 

pregnancy, miscarriages, complications or illness related to pregnancy, including severe morning 

sickness, the need for prenatal care, and recovery from childbirth”); see also Nevada Dep’t of

Human Res. v. Hibbs, 538 U.S. 721, 731 n.4 (2003) (stating that “six weeks is the medically 

recommended pregnancy disability leave period” and that the “Pregnancy Discrimination Act 

legislative history establish[ed] four to eight weeks as the medical recovery period for a normal 

childbirth”).

Instead of recognizing that childbirth is a serious medical condition, the BIA minimized 

the seriousness of childbirth and its impact on E.A.’s mother’s ability to bring E.A. to Memphis. 
No. 20-3216 E. A. C. A. v. Rosen Page 8

Parroting the IJ’s conclusion, the BIA noted that “the Immigration Judge found that [E.A.’s] 

mother knew of [E.A.’s] hearing date and that she was pregnant in advance, and that [E.A.] 

could have contacted the Immigration Court prior to the hearing.” A.R. at 4 (BIA Decision). 

But other courts have recognized that medical conditions that a petitioner is aware of can 

constitute exceptional circumstances. Singh v. Gonzales, 244 F. App’x 99, 100 (9th Cir. 2007) 

(backpain); Yweil v. INS, 50 F. App’x 325, 327 (7th Cir. 2002) (migraine). Recovery from 

childbirth is exactly the type of circumstance that § 1229a(e)(1) was intended to cover.

E.A.’s young age contributes to our conclusion that exceptional circumstances exist, 

mandating that the BIA reopen her immigration proceedings. Of course, the young age of a 

petitioner is not a per se exceptional circumstance. In re Meja-Andino, 23 I. & N. Dec. 533, 536 

(BIA 2002); In re Gomez-Gomez, 23 I. & N. Dec. 522, 528 (BIA 2002). Cf. Reno v. Flores, 

507 U.S. 292, 309 (1993) (holding that, in the immigration context, minors aged sixteen or 

seventeen are not “too young or too ignorant to exercise” their right to make a revocable waiver 

of a removal or deportation hearing). But E.A. does not argue that age alone is an exceptional 

circumstance that warrants reopening her immigration proceeding. Rather, she argues that her 

young age (thirteen years old) prevented her from navigating the immigration process to change 

the location of her hearing without legal assistance and from securing transportation from New 

York to Memphis. Under the totality of the circumstances, E.A.’s young age is an important 

factor in determining whether exceptional circumstances exist. See Denko, 351 F.3d at 723 (“An 

IJ considers the totality of the circumstances when making a determination that exceptional 

circumstances exist.”).

After E.A. moved to Arkansas, her mother was able to complete the Motion to Change 

Venue and Change of Address Forms because she received pro bono legal assistance. A.R. at 

150 (Aff. of Anaya Ortiz). When E.A. and her family returned to New York, her mother, despite 

her best efforts, was unable to obtain new pro bono or private legal counsel to submit new forms. 

Id. Without legal counsel, her mother’s partner contacted the Memphis EOIR himself to attempt 

to change the location of E.A.’s immigration hearing, but was unable to find the necessary 

information. Id.
No. 20-3216 E. A. C. A. v. Rosen Page 9

E.A.’s age also limited her options to travel from New York to Memphis for her 

immigration hearing. She was unable to travel alone to Memphis because she was only thirteen,

not old enough to drive, and she did not have the documentation necessary to travel by plane. Id. 

Her mother was unable to drive her to Memphis because the mother was still recovering from 

childbirth and tending to a newborn. Id. The other adult in E.A.’s life, her mother’s partner, 

could not miss work for the week needed to travel to the immigration hearing. Id.

The cases cited by the government in support of the BIA’s determination are 

distinguishable from the present case. For instance, the government relies on the unpublished 

case Jimenez-Castro v. Sessions, 750 F. App’x 406 (6th Cir. 2018). Gov’t Br. at 17. JimenezCastro’s case does not compare to the present case. In Jimenez-Castro, we held that the minor 

petitioner’s failure to appear at his hearing because his brother forgot the hearing date and did 

not bring him to the hearing was not an exceptional circumstance that merited reopening his 

immigration case. By contrast, E.A.’s case involves numerous impediments that prevented her 

from attending her immigration hearing, including her inability to change the location of the 

hearing, her inability to secure transportation from New York to Memphis, and her mother’s 

recent childbirth. Moreover, the difficulties that prevented E.A. from attending her immigration 

hearing surpass those present in Jimenez-Castro’s case. To attend her hearing, E.A. was 

responsible for either navigating a complex immigration system to change her hearing location 

or for obtaining transportation from New York to Memphis. Therefore, the government’s 

reliance on Jimenez-Castro is not persuasive.

Similarly, the government relies on cases from other circuits to argue that the BIA 

reasonably concluded that E.A.’s mother’s partner’s inability to leave work to drive E.A. to the 

hearing was not an exceptional circumstance justifying her failure to appear at the immigration 

hearing. Gov’t Br. at 19. We are not bound by these cases, and we also find them 

distinguishable from the present case. In Burton v. United States Attorney General, the Eleventh 

Circuit held that the BIA did not abuse its discretion in concluding that the adult petitioner’s 

inability to find transportation because his attorney failed to inform him promptly of his hearing 

date was not an “exceptional circumstance.” 390 F. App’x 870, 872 (11th Cir. 2010). The 

government’s brief also cites a case from the Seventh Circuit involving a thirty-two-year-old, 
No. 20-3216 E. A. C. A. v. Rosen Page 10

which stated that “[c]ar-troubles—surely a perennial issue—have also been rejected” as an 

exceptional circumstance. Gov’t Br. at 19 (quoting Uriostegui v. Gonzales, 415 F.3d 660, 664 

(7th Cir. 2005)). In E.A.’s case, the BIA faulted a thirteen-year-old girl for not finding someone 

to drive her from New York to Memphis and then back. E.A.’s circumstances are not 

comparable to an adult petitioner who is unable to find transportation to a nearby hearing or who 

experiences car troubles.

In sum, we conclude that the BIA abused its discretion by denying E.A.’s motion to 

reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s 

minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration 

system without assistance, constitute “exceptional circumstances” necessitating rescission of the 

in absentia removal order.

B. The BIA’s Legal Errors

The BIA’s decision was also contrary to law, and therefore an abuse of discretion. See 

Daneshvar, 355 F.3d at 625–26. First, the BIA improperly considered E.A.’s age separately, 

rather than considering age alongside other factors, when determining that she had not shown 

that exceptional circumstances justified her failure to appear. Second, the BIA erred when it 

dismissed without adequate explanation E.A.’s evidence that she is eligible for SIJS. Finally, the 

BIA improperly stated that E.A. was required to present prima facie evidence that she was 

eligible for immigration relief as part of her motion to reopen.

First, the BIA improperly construed E.A.’s argument as a contention that her age should 

be a per se exceptional circumstance, rather than just one factor that the BIA should consider as 

part of its totality-of-the-circumstances analysis. As the BIA stated:

While the respondent argues that she was only 13 years old at the time of her 

hearing, a minor respondent’s age has not been held to be per se an exceptional 

circumstance that would excuse the minor respondent’s failure to appear for a 

hearing regardless of the presence of a parent, guardian, or any other custodial 

adult (Respondent’s Br. at 7). Cf. Matter of Mejia-Andino, 23 I. & N. Dec. 533, 

536 (B.I.A. 2002) (recognizing that a parent or custodial adult is ultimately 

responsible for a minor’s appearance at a hearing); Matter of Gomez-Gomez,

23 I. & N. Dec. 522, 528 (B.I.A. 2002).
No. 20-3216 E. A. C. A. v. Rosen Page 11

AR 3. Yet in her brief to the BIA and in her brief to this court, E.A. never asserts that her age 

alone is a per se exceptional circumstance. Rather, she argues that the BIA should consider age 

in conjunction with other factors, such as her mother’s recent childbirth, her inability to secure 

transportation to Memphis, her lack of legal counsel and difficulties changing the venue, and her 

eligibility for SIJS. Pet.’s Br. at 14; A.R. at 21–23. In considering E.A.’s age separately from 

the other factors, the BIA failed to consider E.A.’s argument. The government contends that 

“the Board merely observed that age, standing alone, is not per se an exceptional circumstance, 

and therefore addressed her claim under the totality of the circumstances.” Gov’t Br. at 17 n.1. 

In rebutting E.A.’s argument, the government attempts to put words in the BIA’s opinion by 

construing the BIA’s reference to “the totality of the circumstances presented” to include E.A.’s 

age. Gov’t Br. at 17 n.1. The BIA said no such thing. Rather, the BIA first stated that E.A.’s 

age is not a per se exceptional circumstance and then addressed other factors raised by her. A.R. 

at 3–4. This error is especially relevant to E.A.’s case because of the close relationship between 

her age and her inability to secure legal representation, to navigate changing the location of her 

immigration hearing without legal representation, and to secure transportation from New York to 

Memphis.

Second, the BIA erred by summarily dismissing without a rational explanation evidence 

of E.A.’s eligibility for Special Immigrant Juvenile Status (“SIJS”). E.A. asserts that she is 

eligible for SIJS, a form of relief for immigrants who are under twenty-one years old, unmarried, 

and placed under the custody of a person appointed by a juvenile court because “reunification 

with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a 

similar basis . . . .” 8 U.S.C. § 1101(a)(27)(J). E.A.’s mother stated in her affidavit that she was 

pursuing guardianship of E.A. because E.A.’s father had abandoned E.A. and that she would 

apply for SIJS for E.A. A.R. at 151 (Aff. of Anaya Ortiz). Throughout E.A.’s immigration 

proceedings, she maintained her eligibility for and intent to apply for SIJS. At E.A.’s January 3, 

2018 telephonic hearing, her prior counsel indicated that she was seeking SIJS. Id. at 16 (Pet.’s 

BIA Br. at 2). While living in Arkansas, her mother had retained Catholic Charities in Arkansas 

to obtain the required guardianship order. A.R. 161–62 (Catholic Charities Representation 
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Agreement), 164 (Pet. for Appointment of Guardian Hr’g).3 In her motion to reopen, E.A. stated 

that she met the criteria for SIJS and intended to apply for SIJS. Id. at 136 (Mot. to Reopen).

Instead of engaging with E.A.’s repeatedly asserted intent to apply for SIJS and her 

eligibility for the status, the BIA concluded in a one-sentence explanation that “the respondent 

has not provided sufficient evidence before the Immigration Judge or on appeal of her eligibility 

for such relief.” Id. at 4 (BIA Decision). E.A. argues that this is insufficient because “[t]he BIA 

did not mention the requirements of SIJS or the evidence that the Petitioner submitted, nor did it 

provide any explanation for why the Petitioner’s evidence was insufficient.” Pet.’s Br. at 18. 

The government contends that the BIA did not err because E.A. “did not submit any evidence 

that she was pursuing Special Immigrant Juvenile Status since moving back to New York, nor 

did she provide any evidence that she was eligible for such status in the first instance.” Gov’t Br. 

at 21–22. Although E.A. eventually obtained an Order of Guardianship, filed a Petition for 

Special Immigrant Status, and received approval of her petition from USCIS, this occurred after 

the BIA’s decision and is not part of E.A.’s Administrative Record. Id. at 22 n.4.

We agree with E.A. that the BIA’s analysis is insufficient regarding her claim that she is 

eligible for SIJS. “When denying a motion to reopen, we require that the BIA articulate a basis 

for its decision that will allow this court to engage in meaningful review.” Dieng v. Barr, 

947 F.3d 956, 963 (6th Cir. 2020). In cases where the BIA has failed to provide sufficient 

explanation, we remand the case to the BIA for further consideration. Precetaj v. Sessions, 

907 F.3d 453, 458 (6th Cir. 2018) (remanding to the BIA where the BIA’s analysis of 

petitioner’s evidence alleging changed country conditions was only two sentences). One 

sentence is insufficient to analyze E.A.’s claim that she is eligible for SIJS, especially given the 

evidence she offered in support of her eligibility. Further, we “may not assume that the Board 

considered factors that it failed to mention in its opinion.” Daneshvar, 355 F.3d at 626. Even if 

the government’s interpretation of the BIA’s reasoning is correct, we may not presume the BIA’s 

reasoning when it has failed to provide any explanation.

3E.A. moved to New York prior to the hearing in Memphis. Id. at 149 (Aff. of Anaya Ortiz).
No. 20-3216 E. A. C. A. v. Rosen Page 13

Finally, the BIA erred by stating that E.A. was required to prove prima facie eligibility 

for immigration relief. After concluding that the IJ properly held that E.A. had not established 

that her failure to appear resulted from “exceptional circumstances,” the BIA stated:

Further, even if the respondent had established “exceptional 

circumstances” to rescind the in absentia removal order, reopening her removal 

proceedings would not be warranted as she failed to establish prima facie 

eligibility for any form of relief and has not shown that the outcome of her case 

would change if the case were reopened.

A.R. at 4 (BIA Decision).

The BIA’s decision improperly states that E.A. is required to show at this stage prima 

facie eligibility for relief. The statute governing motions to reopen removal orders entered in 

absentia provides that the petitioner must “demonstrate[] that the failure to appear was because 

of exceptional circumstances.” 8 U.S.C. § 1229a(b)(5)(C). In general, we have stated that 

“[a] prima facie showing of eligibility for relief is required in motions to reopen.” Alizoti, 

477 F.3d at 451–52. In the case of a motion to rescind a removal order entered in absentia, 

however, the BIA has held that “an alien is not required to show prejudice in order to rescind an 

order of deportation” or removal. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (BIA 

1996); see also In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996). This is consistent 

with the statute governing motions to rescind removal orders entered in absentia, 8 U.S.C. 

§ 1229a(b)(5)(C), which does not list a showing of prima facie eligibility for relief from removal 

as a requirement to rescind in absentia removal orders. Rivera-Claros, 21 I. & N. Dec. at 603 

n.1; see also Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) (declining “to

affirm the IJ’s decision on the grounds that [the petitioner] has not shown that he was prejudiced

by his counsel’s performance” because “In re Grijalva-Barrera, 21 I. & N. Dec. at 473 n.2,

provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to

constitute an ‘exceptional circumstance’ justifying rescission of an in absentia removal order”);

Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003) (“follow[ing] the BIA’s usual practice of

not requiring a showing of prejudice” to rescind an in absentia order of removal). We now join 

our sister circuits and hold that E.A. is not required to make a prima facie showing of eligibility 
No. 20-3216 E. A. C. A. v. Rosen Page 14

for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in absentia order of 

removal.

In sum, we hold that the BIA abused its discretion when it concluded that E.A. had not 

shown exceptional circumstances justifying her failure to appear at her immigration hearing. We 

therefore vacate the in absentia order of removal. Moreover, we additionally hold that the BIA 

made several legal errors in its analysis.

IV. CONCLUSION

For the foregoing reasons, we GRANT the petition for review, VACATE the removal 

order, and REMAND for further proceedings consistent with this opinion.