Matter of J-E-D-C- breaks with the Ninth Circuit's deem-true rule: a motion to reopen now has to persuade, not just be believed.
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The decision. In Matter of J-E-D-C-, 30 I&N Dec. 162 (BIA 2026), decided October 19, 2026, the Board of Immigration Appeals held that immigration judges and the Board "are not required to accept as true facts set forth by the respondent" in affidavits, declarations, or other written statements supporting a motion to reopen, "even when those statements are not inherently unbelievable." Id. at 167. The Board may instead assess those statements under the same standards that govern credibility findings on applications for relief. Applying it, the Board affirmed the denial of a motion to rescind an in absentia removal order: the respondent said he expected a later hearing notice, but the Department of Homeland Security had personally served his notice to appear and explained it in Spanish.
The conflict. The Ninth Circuit has long required the opposite: facts in a motion-to-reopen declaration must be accepted as true unless they are "inherently unbelievable." Perez-Portillo v. Garland, 56 F.4th 788, 795 (9th Cir. 2022). The Board reasoned that this rule is inconsistent with INS v. Abudu, 485 U.S. 94 (1988), which rejected the Ninth Circuit's summary-judgment analogy and placed a "heavy burden" on the movant, id. at 110, and with Garland v. Ming Dai, 593 U.S. 357 (2021). It agreed with Judge VanDyke's dissent in Trigueros Quizar v. Blanche, No. 24-4847 (9th Cir. Sept. 4, 2026), and took the position that when circuit precedent conflicts with the Supreme Court, the Board must follow the Supreme Court. Whether Abudu and Ming Dai actually displace the circuit rule is the contested question, and the Board cannot settle it. Six weeks earlier, the Trigueros Quizar majority stated the Ninth Circuit's view plainly: "A BIA decision cannot displace our precedent." Id., slip op. at 11.
A case that did not need the rule. The immigration judge had already found the respondent's account inherently unbelievable, a finding that, if sustained, satisfies even the Ninth Circuit's standard. The Board announced its broader rule anyway, in a case where the result could stand under either rule.
The question is not confined to the West. The Sixth Circuit applies a similar rule to "reasonably specific facts," Trujillo Diaz v. Sessions, 880 F.3d 244, 252 (6th Cir. 2018), and described it as widely applied by other circuits. Trujillo Diaz involved a changed-country-conditions motion, not an in absentia order, but the Board's second holding is written for motions to reopen generally. The question can now arise in Cleveland, Detroit, Louisville, and Memphis, as well as in Arizona, California, Hawaii, Nevada, Oregon, and Washington.
Credibility is not persuasion. Ming Dai arose on judicial review of a merits decision, not a motion to reopen, but the Board has now carried its distinction "between credibility, persuasiveness, and the burden of proof" into reopening. Ming Dai, 593 U.S. at 371. A declaration can be believed and still lose. The drafting question is no longer only whether the account is believable. It is whether the evidence, taken together, persuades.
The direction of travel. J-E-D-C- follows Matter of M-M-L-J-, 29 I&N Dec. 843 (BIA 2026), which held in August that equitable tolling does not apply to the statutory limit of one motion to reopen. Both opinions are by Appellate Immigration Judge Volkert. In our view, read together, they narrow the paths back into proceedings and raise the cost of a thin first motion, because there may not be a second. The Board also declined sua sponte reopening, which remains reserved for "exceptional situations." Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997).
Drafting the motion now. Corroborate every fact that can be corroborated, even in circuits that do not require it. Confront the record evidence that cuts against the claim (here, personal service and a Spanish-language advisal) rather than leaving the judge to find it. Document a colorable claim for relief. It is not a separate element, but the Board may consider it, Montejo-Gonzalez v. Bondi, 166 F.4th 851, 854 (9th Cir. 2026) (en banc), and here the Board weighed its absence in applying the exceptional-circumstances test. On appeal, contest every adverse finding: the respondent's brief did not meaningfully challenge the colorable-claim finding, and it stood. In the Ninth and Sixth Circuits, preserve the argument that circuit precedent still requires the facts to be taken as true.
File early. This is practice advice, not the reason this respondent lost; the Board did not fault his timing. But his motion was filed 179 days after the in absentia order, one day inside the 180-day limit, and Montejo-Gonzalez lists diligence among the relevant factors.
The limits. The Board cannot overrule a court of appeals. Trigueros Quizar confirms that a Ninth Circuit panel will keep applying the circuit's rule until the en banc court or the Supreme Court changes it, so in that circuit the Board now instructs immigration judges to apply one standard while the reviewing court applies another. On review of this case, a court would still have to decide whether the immigration judge's inherently-unbelievable finding holds up. J-E-D-C- does not change the exceptional-circumstances standard or the 180-day deadline, and it does not license ignoring a declaration. An adverse finding must still rest on the totality of the circumstances and the record.
Case Law Watch is Emeriti Law's weekly note on decisions that matter for immigration appeals. Our appellate practice briefs these questions before the Board of Immigration Appeals. This note is general information, not legal advice.
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