Can You Add New Asylum Evidence in a Federal Appeal?

No. Once a case reaches a federal court of appeals, you generally cannot add new factual evidence. The court must decide the petition solely on the administrative record created before the Immigration Judge and the Board of Immigration Appeals. 8 U.S.C. § 1252(b)(4)(A) states this directly: the court of appeals shall decide the petition only on the administrative record on which the removal order is based. The Ninth Circuit applied this rule in Carmona-Sanchez v. Bondi, No. 24-6132 (9th Cir. Jan. 2, 2026), declining to consider materials the petitioners referenced in their opening brief that were not part of the agency record, following Fisher v. INS, 79 F.3d 955, 963–64 (9th Cir. 1996) (en banc).

If you have evidence that was not before the agency, the right question is not how to get it into the federal court — it is which administrative vehicle applies to your procedural posture.

Two Different Postures, Two Different Paths

Where you are in the process determines what is available.

Appeal still pending before the BIA

If your case has not yet produced a final BIA order, you may file a motion to remand asking the BIA to return jurisdiction to the Immigration Judge to consider newly available evidence. Under EOIR Policy Manual § 4.8, motions to remand are subject to the same substantive requirements as motions to reopen under Matter of Coelho, 20 I&N Dec. 464 (BIA 1992): the new evidence must be submitted with the motion, you must explain its prior unavailability, and the Board may deny the motion if the evidence was discoverable earlier, is not material or probative, or is otherwise defective. One important difference from motions to reopen: a motion to remand filed while an appeal is pending before the BIA is not limited in time or number. EOIR Policy Manual § 4.8(c).

BIA has already issued a final order

Once a final removal order exists and a federal petition is on file, the appropriate vehicle for new material evidence is a motion to reopen filed with the agency. Time, number, and evidentiary restrictions apply and are not automatically waived. The federal court of appeals does not retry the facts; it reviews the administrative record as closed.

The Exhaustion Problem: New Social Groups on Appeal

A separate issue arises when a petitioner attempts to raise a new particular social group for the first time in the federal appellate brief — a group that was never presented to the BIA. Under 8 U.S.C. § 1252(d)(1), a court may review a final order of removal only if the alien has exhausted all administrative remedies available as of right. The Supreme Court held in Santos-Zacaria v. Garland, 598 U.S. 411, 417–19 (2023), that § 1252(d)(1) is a claim-processing rule rather than a jurisdictional bar — a distinction from a limit on the court’s subject-matter jurisdiction. In this memorandum, the panel nevertheless enforced exhaustion against the new social group. In Carmona-Sanchez, the court declined to address a new social group raised for the first time on appeal because it had not been presented to the BIA.

This matters practically: presenting a new social group to the federal court without first exhausting it before the BIA is not a strategy that bypasses administrative requirements. The exhaustion rule applies to legal theories, not only to factual evidence.

Hypothetical: Evidence Arrives After the BIA Dismisses

Hypothetical (illustrative only — not your case): A family receives new police reports documenting threats against them after the BIA has dismissed their appeal and they have filed a petition for review in the Ninth Circuit. They also want to reframe their claim around a particular social group that was never argued before the BIA.

• The federal court cannot receive the new police reports. Under § 1252(b)(4)(A) and Fisher, they are outside the administrative record.
• The new social group cannot be evaluated by the federal court because it was not exhausted before the BIA. § 1252(d)(1); Santos-Zacaria.
• The appropriate step for the police reports is a motion to reopen filed with the agency, supported by an explanation of prior unavailability and materiality. Time and number restrictions under current rules apply and must be analyzed for the specific case.
• A temporary stay of removal issued during the federal appeal is a procedural measure, not a ruling on the merits of the asylum claim. Carmona-Sanchez, No. 24-6132, slip op. at 3.

Evidence Document Task: What to Gather Before Any Filing

If new evidence has come to light, organize it before any motion is filed. For each document, identify:

• Creation date: When was the document made, and does that date fall before or after the immigration court hearing?
• Prior availability: Could this document have been obtained and submitted during the hearing or on BIA appeal? EOIR Policy Manual § 4.8 requires an explanation of why evidence was not presented earlier.
• Materiality: Does the document go to an element of the asylum, withholding, or CAT claim — such as a protected ground, nexus, or government acquiescence — or does it duplicate what the agency already considered?
• Translation and authentication: Identify which documents require translation and verify the applicable agency translation and filing requirements before submission.
• Connection to the pending forum: Is the BIA appeal still open, making a motion to remand available? Or has a final order issued, making a motion to reopen the relevant vehicle?

This checklist addresses what counsel will need to evaluate. It does not substitute for a case-specific analysis of current time limits, number restrictions, and exceptions under the regulations governing your particular posture.

Current Agency Limits and What Counsel Resolves

Several questions in this area turn on facts that cannot be resolved without reviewing the actual case record and current regulatory posture: whether a motion to reopen remains timely or falls within a regulatory exception; whether the proposed social group was adequately raised before the BIA to satisfy exhaustion; whether a stay of removal is in place and on what basis; and whether the BIA relied on the same grounds as the IJ — because, as the Ninth Circuit confirmed in Carmona-Sanchez, the court reviews only the grounds the BIA actually relied upon, citing Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011).

For a full analysis of how Carmona-Sanchez applied these rules — including the nexus finding, the CAT denial, and the court's refusal to address IJ grounds the BIA did not adopt — see the related case analysis: Carmona-Sanchez v. Bondi: New Social Groups and Evidence Outside the Administrative Record.

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