J-E-D-C-: The BIA Rejected Automatic Acceptance of Reopening Affidavits

In Matter of J-E-D-C-, the BIA held that it and immigration judges need not accept reopening affidavits as true merely because the statements are not inherently unbelievable. It reasoned that the Ninth Circuit’s contrary approach conflicted with Supreme Court decisions. The Board then dismissed the respondent’s appeal from denial of reopening. That is the agency’s holding and asserted rationale—not a Ninth Circuit decision overruling its own precedent.

The notice and declaration did not tell the same story

DHS personally served the respondent with an NTA giving the hearing’s date, time and location. The document reflected that the information, appearance obligation and consequences were explained in Spanish. The respondent missed the October 2025 hearing and was ordered removed in absentia. In his April 2026 reopening motion, he declared that he had understood he would later receive another document identifying the hearing he had to attend. He referred to his limited communication with the officer and his earlier immigration-court experience as a child. J-E-D-C-, 30 I&N Dec. 162, 162–163 (BIA 2026).

The immigration judge denied the motion, finding the asserted misunderstanding inherently unbelievable in light of the service record and explanation. The judge also found no colorable protection claim supporting sua sponte reopening. The appeal therefore presented both an affidavit-evaluation question and the sufficiency of the respondent’s particular explanation and requested relief.

Exceptional circumstances still required causation and compelling facts

The decision addressed the statutory route allowing a motion within 180 days to rescind an in absentia order where exceptional circumstances caused the absence. It identified three components: Circumstances sufficiently compelling, beyond the person’s control, and causally responsible for missing the hearing. Totality-of-circumstances review remained necessary. A declaration’s treatment did not eliminate those elements. J-E-D-C-, 30 I&N Dec. at 164.

The Board acknowledged published Ninth Circuit authority requiring acceptance of affidavit facts unless inherently unbelievable. It also recognized the ordinary obligation to apply circuit law in cases arising within that circuit. The opinion departed from that rule because the Board believed the relevant circuit cases could not be reconciled with controlling Supreme Court law—not because a new BIA decision ordinarily outranks a circuit court.

The Board’s reading of Abudu and Ming Dai

The Board relied on INS v. Abudu, 485 U.S. 94, 109–111 (1988), which rejected a summary-judgment analogy for reopening and recognized the movant’s heavy burden. It also relied on Garland v. Ming Dai, 593 U.S. 357, 371 (2021), distinguishing credibility from persuasiveness and sufficiency. In the Board’s view, automatically treating an uncorroborated account as true improperly constrained evaluation of reliability and other record evidence. J-E-D-C-, 30 I&N Dec. at 165–167.

The resulting rule allowed the agency to assess affidavits and declarations under the credibility standards identified in the INA, considering consistency, plausibility and the record as a whole. It did not authorize findings unsupported by evidence, make every declaration false, or establish that corroboration automatically cures a legally inadequate excuse.

The Ninth Circuit disagreement must remain visible

The recent published decision Trigueros Quizar v. Blanche, No. 24-4847 (9th Cir. Sept. 4, 2026), applied the circuit’s affidavit rule; Judge VanDyke dissented. The BIA agreed with reasoning from that dissent. A dissent, however, is not the circuit’s controlling holding. The Board’s conclusion that Supreme Court authority required departure remains a point to distinguish and address in a Ninth Circuit case, not a basis for saying the circuit itself abandoned the rule. J-E-D-C-, 30 I&N Dec. at 164–166.

This distinction also matters when reading our Wei analysis, which concerns a September memorandum applying existing circuit authority. The new agency opinion creates an additional current argument about governing law; it does not retroactively change what that court held.

Why this respondent lost apart from the general dispute

The Board concluded that the respondent’s vague expectation of a later notice did not overcome the personally served, complete hearing information and Spanish explanation. General references to old scheduling practices and a newspaper article did not explain this absence. It also agreed that the protection applications lacked sufficient support for a colorable claim and noted that the appeal did not meaningfully contest that conclusion. Sua sponte reopening was declined as well. J-E-D-C-, 30 I&N Dec. at 168–169.

The October 19, 2026 precedential BIA decision dismissed the appeal; it did not remand or rescind the removal order. There was no separate BIA opinion. For another case, preserve both the governing-law argument and an evidence-based explanation addressing the actual notice record, causation, diligence and grounds for relief. Our agency–circuit conflict guide explains those separate tasks without promising reopening or treating one forum’s position as another’s ruling.