The Board of Immigration Appeals has published a precedent decision that openly rejects binding Ninth Circuit precedent dating back to 1986 on how Immigration Judges should evaluate affidavits supporting motions to reopen. In Matter of J-E-D-C-, 30 I&N Dec. 162 (BIA 2026), Interim Decision #4261, decided October 19, 2026, the Board held that Immigration Judges and the Board are no longer required to accept as true the facts set forth in an affidavit supporting a motion to reopen even where those statements are not “inherently unbelievable.”
Before continuing with the doctrinal analysis, a direct note for community readers: if you have received an in absentia removal order (an order of removal entered when you did not appear at your Immigration Court hearing) and you are preparing or have filed a motion to reopen, this decision substantially changes the legal standard that applies to your case. The protection that previously required Immigration Judges to accept your sworn statements as true unless they were essentially impossible has been eliminated. Talk to an experienced immigration attorney immediately. Case strategy that worked under the prior rule may need to be rebuilt under the new standard.
This piece explains what the decision holds, how the new credibility framework operates, why this is the second direct Ninth Circuit confrontation in two weeks, what the specific case tells us about the Board’s current direction, and what practitioners and noncitizens should do differently now that the Perez-Portillo rule has been displaced at the agency level. Matter of J-E-D-C- is the twenty-second precedential immigration decision in the ongoing series shifting law in the government’s direction.
The respondent is a native and citizen of Mexico. He had previously appeared in removal proceedings before the Phoenix Immigration Court as an Unaccompanied Child (a legal classification for noncitizen minors under 18 who arrive in the United States without a parent or legal guardian and who are placed in a specialized docket with different procedural protections than adult removal proceedings).
On April 13, 2024, the Department of Homeland Security (DHS) personally served him with a notice to appear (NTA), the charging document that initiates adult removal proceedings. The NTA included the date, time, and location of his initial hearing before the Immigration Court. He was informed in Spanish of this information, as well as his obligation to appear and the consequences for failing to appear. The hearing was scheduled for October 27, 2025.
The respondent did not appear at the October 27, 2025 hearing. The Immigration Judge issued an in absentia removal order under INA § 240(b)(5)(A).
On April 24, 2026, the respondent filed a motion to reopen and rescind the in absentia removal order under INA § 240(b)(5)(C)(i), which allows rescission where the noncitizen demonstrates that the failure to appear was because of “exceptional circumstances.” In support of the motion, he filed a declaration attesting that he had “limited communication in Spanish” with the DHS officer who served him, that he was told he would “later receive a document with the date of a hearing,” and that he did not understand the NTA was itself his hearing notice because he had “received notices in the mail previously” during his prior proceedings as an Unaccompanied Child.
On May 13, 2026, the Immigration Judge denied the motion. The Immigration Judge found the respondent’s declaration “inherently unbelievable,” reasoning that the respondent was an adult, was personally served, and had the NTA contents explained to him in Spanish. The Immigration Judge also denied sua sponte reopening and found that the respondent’s applications for asylum, withholding of removal, and protection under the Convention Against Torture did not establish a colorable claim for relief.
The respondent appealed. On October 19, 2026, the Board dismissed the appeal and used the dismissal to announce a broader doctrinal change rejecting binding Ninth Circuit precedent.
CONTEXT WORTH NAMING
The Board’s decision relegates the respondent’s prior status as an Unaccompanied Child to a single footnote without engaging the substantive relevance of that fact. Unaccompanied Children in the specialized docket experience court procedure differently than adults: notices arrive by mail, hearings are scheduled with longer lead times, and procedural protections differ. A noncitizen who learned removal procedures as a minor and reasonably assumed those procedures carried over to adult proceedings is in a different position than a noncitizen with no prior court experience. The Board’s refusal to engage this fact is itself part of the story of how the new credibility standard will operate in practice.
The Board decided two main things, both of which carry significant doctrinal weight.
First, the Board held that the Ninth Circuit’s requirement that Immigration Judges and the Board must accept as true the facts set forth in an affidavit supporting a motion to reopen unless those facts are “inherently unbelievable” is inconsistent with the Supreme Court’s reasoning and holding in INS v. Abudu, 485 U.S. 94 (1988), and with the Supreme Court’s discussion of credibility in Garland v. Ming Dai, 593 U.S. 357 (2021).
Second, the Board held that in reviewing affidavits, declarations, or written statements of fact in support of a motion to reopen, Immigration Judges and the Board are not required to accept as true facts set forth by the respondent, even when those statements are not inherently unbelievable.
Applying this new standard to the specific case, the Board upheld the Immigration Judge’s finding that the respondent did not establish exceptional circumstances, upheld the finding that the respondent did not present a colorable claim for underlying relief, and declined to exercise sua sponte reopening authority.
Understanding what the Board just overturned requires understanding what the Ninth Circuit rule was and how long it has been in place.
Beginning with Aviles-Torres v. INS, 790 F.2d 1433 (9th Cir. 1986), and continuing through Limsico v. INS, 951 F.2d 210 (9th Cir. 1991), Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005), Ghahremani v. Gonzales, 498 F.3d 993 (9th Cir. 2007), Arredondo v. Lynch, 824 F.3d 801 (9th Cir. 2016), Perez-Portillo v. Garland, 56 F.4th 788 (9th Cir. 2022), and most recently Trigueros Quizar v. Blanche, No. 24-4847, 2026 WL 2620433 (9th Cir. Sep. 4, 2026), the Ninth Circuit has consistently held that in adjudicating a motion to reopen, Immigration Judges and the Board must accept as true facts stated in an affidavit unless those facts are “inherently unbelievable.”
“Inherently unbelievable” is a demanding standard. It generally requires that a statement be essentially impossible, logically incoherent, or clearly contradicted by indisputable fact. A declaration that simply conflicts with government evidence, or that an adjudicator finds unpersuasive, has not historically been enough to defeat the rule. The Ninth Circuit’s standard thus functioned as a strong procedural protection for motion-to-reopen filers, particularly those relying on their own sworn statements to establish exceptional circumstances, changed country conditions, or ineffective assistance of counsel.
The Board’s stated reason for rejecting this rule rests on two Supreme Court decisions.
First, the Board invokes INS v. Abudu, 485 U.S. 94 (1988), where the Supreme Court reviewed and reversed a Ninth Circuit decision applying essentially the same rule. The Supreme Court in Abudu stated: “We have never suggested that all ambiguities in the factual averments must be resolved in the movant’s favor, and we have never analogized such a motion to a motion for summary judgment. The appropriate analogy is a motion for a new trial in a criminal case on the basis of newly discovered evidence, as to which courts have uniformly held that the moving party bears a heavy burden.” The Board reads this as a direct repudiation of the Ninth Circuit’s approach.
Second, the Board invokes Garland v. Ming Dai, 593 U.S. 357 (2021), where the Supreme Court distinguished among credibility, persuasiveness, and the burden of proof. The Court held that “even if the BIA treats an alien’s evidence as credible, the agency need not find his evidence persuasive or sufficient to meet the burden of proof.” The Board reads Ming Dai as establishing that the burden-of-proof framework is independent of credibility, which the Board treats as inconsistent with any rule that forces adjudicators to accept affidavit statements as true.
Notably, the Board also adopts the reasoning of Judge VanDyke’s dissent in Trigueros Quizar v. Blanche, published just six weeks ago. The decision cites the dissent approvingly for the proposition that the Ninth Circuit rule “has no textual support in the INA” and that requiring the agency to ignore corroborating or other record evidence “makes no sense.” This is a striking move: the Board is effectively adopting a dissenting opinion as agency policy, overriding the Ninth Circuit majority opinion in which that dissent was filed.
Having rejected the Ninth Circuit rule, the Board replaces it with the full credibility framework from the REAL ID Act of 2005.
Under INA §§ 208(b)(1)(B)(iii) and 240(c)(4)(C), credibility determinations are made “considering the totality of the circumstances, and all relevant factors.” Relevant factors include the inherent plausibility of the account, the consistency of statements with other record evidence, the consistency between written and oral statements, the internal consistency of each statement, and the responsiveness of the respondent. Under Matter of I-S-M-, 29 I&N Dec. 811 (BIA 2026), these determinations may be made without regard to whether an inconsistency goes to the heart of the respondent’s claim.
The Board holds that Immigration Judges and the Board may now apply these factors to affidavits, declarations, and written statements of fact submitted with motions to reopen. In other words, the full credibility framework that applies to live testimony in merits proceedings now also applies to paper declarations in motion practice.
This is a dramatic expansion of adjudicator discretion. A declaration can now be rejected because the Board finds it inherently implausible, inconsistent with other record evidence, inconsistent with the respondent’s prior statements or filings, or otherwise unpersuasive. None of these grounds require the declaration to be inherently unbelievable in the traditional sense.
“Immigration Judges and the Board are not required to accept as true facts set forth by the respondent, even when those statements are not inherently unbelievable.”
MATTER OF J-E-D-C-, SECOND HOLDING
For practitioners who have handled motions to reopen under the prior Ninth Circuit standard, this is a fundamental change in how declarations must be prepared and supported. Under the old rule, a well-drafted declaration from the respondent, submitted with the motion, often carried the day on exceptional circumstances. Under the new rule, a declaration without corroborating evidence is substantially less likely to prevail, because the Board may now disbelieve the declaration based on a wide range of factors that are themselves within the Board’s discretion.
With Matter of J-E-D-C-, the Board has now directly rejected binding Ninth Circuit precedent twice in approximately two weeks. The pattern deserves direct treatment because it is itself a story about how the Board is positioning itself relative to the federal courts of appeals.
Ten days ago, in Matter of B-S-A-N-, 30 I&N Dec. 145 (BIA 2026), decided October 9, 2026, the Board openly rejected the Ninth Circuit’s 2025 decision in Lapadat v. Bondi, 145 F.4th 942 (9th Cir. 2025), which had applied “disfavored group” analysis to Roma asylum applicants from Romania. The Board in B-S-A-N- sided with the First, Third, Seventh, and Eleventh Circuits that reject the Ninth Circuit framework.
Now in Matter of J-E-D-C-, decided October 19, 2026, the Board openly rejects the Ninth Circuit’s inherently-unbelievable standard that has been developed and applied in Aviles-Torres, Limsico, Bhasin, Ghahremani, Arredondo, Perez-Portillo, and most recently Trigueros Quizar.
Several features of the two decisions, read together, suggest something more than coincidence.
Both decisions involve recent Ninth Circuit precedents. Lapadat was decided in 2025. Trigueros Quizar was decided September 4, 2026, approximately six weeks before Matter of J-E-D-C-. The Board is responding to Ninth Circuit precedent that is fresh and that would otherwise constrain its decisionmaking.
Both decisions rely on reasoning imported from circuit courts other than the Ninth Circuit or, in the case of Matter of J-E-D-C-, from dissents within Ninth Circuit decisions. The Board is building its case by assembling non-Ninth-Circuit authority to justify rejecting binding Ninth Circuit precedent.
Both decisions announce the circuit disagreement explicitly rather than operating around the circuit precedent through narrower distinctions. The Board is not simply applying narrower holdings while technically respecting circuit precedent; it is announcing agency-wide policy that defies the circuit precedent directly.
Both decisions were issued by panels that included Chief Appellate Immigration Judge Garry Malphrus. Chief AIJ Malphrus has now been on the panel for Morales Cuxun (September 24, 2026, bond), Matter of L. Ramirez (October 16, 2026, U visa continuances), and Matter of J-E-D-C- (October 19, 2026, motions to reopen) within approximately four weeks. Three of the series’ most consequential procedural decisions.
For practitioners, the institutional dynamics matter because they affect strategy at both the agency level and the federal court level. At the agency level, Ninth Circuit practitioners should expect the Board to continue applying the new rules notwithstanding binding circuit precedent and should preserve every available argument. At the federal court level, the circuit conflicts created by B-S-A-N- and J-E-D-C- will have to be worked through by the Ninth Circuit, likely in en banc litigation and potentially in Supreme Court review.
For attorneys handling motions to reopen in cases that will be reviewed in the Ninth Circuit, the posture after Matter of J-E-D-C- is complicated. The Board will apply the new rule at the agency level. Ninth Circuit practitioners should expect Immigration Judges in the Ninth Circuit to begin applying the new credibility standard immediately. On petition for review, however, Perez-Portillo v. Garland, Trigueros Quizar v. Blanche, and the broader line of Ninth Circuit precedent remain binding on the Ninth Circuit panel reviewing the agency decision.
This creates a two-stage strategic posture. At the agency level, the strongest motions to reopen will affirmatively address the new credibility factors and build the record with corroborating evidence beyond the respondent’s own declaration. At the federal court level, the preservation of every available argument becomes central, because the Ninth Circuit will have to decide how to reconcile its binding precedent with the Board’s rejection of that precedent.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
The Ninth Circuit covers nine states and two Pacific territories, representing nearly 20% of the U.S. population.
Ninth Circuit states and territories: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, plus Guam and the Northern Mariana Islands.
For attorneys outside the Ninth Circuit, Matter of J-E-D-C- is binding at the agency level and will govern motion-to-reopen practice. In circuits that have not previously applied the inherently-unbelievable standard, the Board’s new rule largely codifies what was already the operating framework. In circuits that have applied some version of the Ninth Circuit standard or have been silent on the question, the Board’s rule will govern unless and until circuit precedent develops to address it.
For immigration attorneys handling motions to reopen, Matter of J-E-D-C- requires several adjustments to standard practice.
Building the record with corroborating evidence has become central to every motion. Under the prior Ninth Circuit rule, a well-drafted declaration from the respondent often carried the motion on exceptional circumstances or similar questions. Under the new standard, a declaration without corroborating evidence is substantially weaker. Where corroborating evidence exists, it should be gathered: medical records, communications, witness declarations from third parties, documentation of mail delivery issues, documentation of child-caretaker emergencies, records establishing a pattern of inability to appear, and anything else that supports the respondent’s account.
Drafting declarations with the credibility factors in mind is now part of competent practice, because the Board will apply the REAL ID Act framework to the paper record. Declarations should be internally consistent, consistent with other record evidence, address foreseeable inconsistencies affirmatively (explaining why apparent inconsistencies are not inconsistencies), and be as specific as the respondent’s honest recollection permits. Vague or conclusory statements that would have survived the inherently-unbelievable standard will be weaker under the new framework.
Addressing the colorable-claim issue affirmatively is especially important in in absentia motion-to-reopen practice, because the Board also upheld the finding that the respondent in Matter of J-E-D-C- did not present a colorable claim for underlying relief. Under Montejo-Gonzalez v. Bondi, 166 F.4th 851 (9th Cir. 2026), the agency may consider whether a motion-to-reopen filer had a colorable claim for relief or was merely delaying the inevitable. Motions to reopen should address the underlying substantive relief in some detail, with supporting evidence, rather than treating the colorable-claim question as a procedural afterthought.
Preserving the record for federal court review is now a baseline requirement in Ninth Circuit cases, because the circuit precedent conflict will have to be worked through at the appellate level. Every argument available at the agency level should be made, and every objection to the Board’s application of the new standard should be noted explicitly.
Flagging the Unaccompanied Child context where applicable is a strategic point worth making. The Board in Matter of J-E-D-C- did not engage with the respondent’s prior status as an Unaccompanied Child beyond a footnote, but the fact pattern (adult who learned court procedures as a minor and had reasonable expectations about mail notice) is substantively relevant to the exceptional-circumstances analysis. Where a client’s procedural confusion traces to prior experience in a specialized docket, the motion should develop that factual pattern rather than treating it as background context.
Monitoring for further series developments is now part of competent current practice, because Matter of J-E-D-C- is the second Ninth Circuit confrontation in two weeks and the direction of further Board decisions in this area is not difficult to predict.
For noncitizens who have received an in absentia removal order and their families, the practical consequences of Matter of J-E-D-C- are significant.
If you have received an in absentia removal order and you are preparing or have filed a motion to reopen, consult with an experienced immigration attorney immediately. The procedural standard that will apply to your case has substantially changed, and strategy that would have worked under the prior rule may not work under the new standard.
If your motion to reopen depends on your own statement about why you did not appear, understand that the Immigration Judge and the Board are no longer required to accept your statement as true. They may evaluate your statement based on consistency with other record evidence, inherent plausibility, and the full credibility framework. The strongest motions include corroborating evidence beyond your own statement.
If you were previously in removal proceedings as an Unaccompanied Child before you turned 18, and your current motion to reopen involves procedural confusion that traces to your prior experience, your attorney should develop that factual pattern explicitly. The Board did not engage with that history in Matter of J-E-D-C-, but a well-developed record may help on petition for review and may help future similarly-situated cases.
If you missed your hearing because of circumstances outside your control (illness, hospitalization, caretaker emergency, mail delivery failure, address change not received by the court, interpreter issues, attorney error), gather documentation of those circumstances immediately. Hospital records, communications, mail-forwarding documentation, and third-party witness statements can all help establish exceptional circumstances with corroborating evidence rather than depending on your statement alone.
Understand that the 180-day deadline for motions to reopen in absentia removal orders still applies. The deadline runs from the date of the removal order. Act quickly and work with an attorney to prepare the strongest possible motion within the deadline.
The decision shifts motion-to-reopen practice significantly, but its scope has limits worth stating clearly.
The decision does not change the substantive standard for exceptional circumstances. Under INA § 240(e)(1), exceptional circumstances include battery or extreme cruelty, serious illness, serious illness or death of a spouse, child, or parent, and other circumstances beyond the noncitizen’s control. These substantive grounds remain available; what has changed is how the evidence of these grounds is evaluated.
The decision does not change the 180-day deadline for motions to reopen in absentia orders based on exceptional circumstances, nor the 90-day deadline for most other motions to reopen, nor the exceptions to those deadlines (such as the no-notice exception at INA § 240(b)(5)(C)(ii), motions based on changed country conditions, and motions based on ineffective assistance of counsel under certain circumstances).
The decision does not change the standard for sua sponte reopening (reopening on the Board’s own motion in exceptional situations). Under Matter of J-J-, 21 I&N Dec. 976 (BIA 1997), sua sponte reopening remains available in exceptional situations.
The decision does not change the standard for the underlying relief sought on reopening. Asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, adjustment of status, and other forms of relief continue to operate under their own frameworks.
The decision does not foreclose petitions for review at federal courts of appeals. The Ninth Circuit precedent conflict will be worked through at the appellate level, and petitions for review remain available in all circuits subject to the usual jurisdictional limits.
What is a motion to reopen?
A motion to reopen is a formal request asking an Immigration Judge or the Board of Immigration Appeals to reopen a case that has already received a final decision. Motions to reopen are typically filed by noncitizens who received an in absentia removal order (an order of removal entered when the noncitizen did not appear at the hearing), who have changed country conditions in their country of nationality, who have newly available evidence, or who received ineffective assistance of counsel. The procedural standards for motions to reopen are governed by INA § 240(c)(7) and 8 C.F.R. § 1003.2 (for motions filed with the Board) or 8 C.F.R. § 1003.23 (for motions filed with the Immigration Court).
What is an in absentia removal order?
An in absentia removal order is an order of removal entered by an Immigration Judge when a noncitizen fails to appear at a scheduled hearing. Under INA § 240(b)(5)(A), the Immigration Judge may order a noncitizen removed in absentia if DHS establishes by clear, unequivocal, and convincing evidence that the noncitizen was given written notice of the hearing and is removable. The order may be rescinded under INA § 240(b)(5)(C)(i) upon a motion to reopen filed within 180 days if the noncitizen demonstrates exceptional circumstances for the failure to appear.
What are “exceptional circumstances” under the INA?
Under INA § 240(e)(1), exceptional circumstances include battery or extreme cruelty, serious illness of the noncitizen, serious illness or death of a spouse, child, or parent, and other circumstances beyond the noncitizen’s control that are sufficiently compelling to excuse the failure to appear. The Ninth Circuit in Montejo-Gonzalez v. Bondi described the three required elements: the circumstances must cause the failure to appear, must be beyond the respondent’s control, and must be sufficiently compelling.
What was the Ninth Circuit’s “inherently unbelievable” standard?
Under a line of Ninth Circuit cases beginning with Aviles-Torres v. INS (1986) and most recently reaffirmed in Trigueros Quizar v. Blanche (September 2026), Immigration Judges and the Board were required to accept as true facts stated in an affidavit supporting a motion to reopen unless those facts were “inherently unbelievable.” This was a demanding standard that generally required a statement to be essentially impossible or logically incoherent. Matter of J-E-D-C- rejects this standard.
Does the new standard apply retroactively?
Precedent decisions of the Board generally apply to all cases pending at the agency level that have not yet reached a final decision. Attorneys with motions to reopen pending before Immigration Judges or on appeal before the Board should assume the new standard applies.
Can Ninth Circuit precedent still protect my case on petition for review?
Yes, within the limits of federal court review. The Ninth Circuit precedent cases, including Perez-Portillo v. Garland and Trigueros Quizar v. Blanche, remain binding on panels of the Ninth Circuit until modified by the Ninth Circuit itself or by the Supreme Court. The question of how to reconcile this binding circuit precedent with the Board’s rejection of that precedent will be worked through at the appellate level.
Where can I find Matter of J-E-D-C-?
Matter of J-E-D-C-, 30 I&N Dec. 162 (BIA 2026), Interim Decision #4261, is a precedent decision of the Board of Immigration Appeals decided October 19, 2026. It is available here and through the Department of Justice Executive Office for Immigration Review website.
Novo Legal Group is a bilingual, community-rooted human rights firm. Every attorney on our team is fluent in English and Spanish. Our litigation team handles motions to reopen, in absentia removal order rescission, appeals to the Board of Immigration Appeals, and petitions for review before federal courts of appeals including the Ninth and Tenth Circuits. We approach motions to reopen with a careful record-building strategy that treats the respondent’s declaration as one piece of a larger evidentiary presentation rather than the whole case, and we preserve every available argument for federal court review when the agency denies relief. If you or a family member has received an in absentia removal order or is preparing a motion to reopen, contact us. We will tell you what we would do given your specific facts.
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