Motions to Reopen After Matter of J-E-D-C-: Affidavits Are No Longer Presumed True

Many motions to reopen rest on a sworn statement explaining why the person missed a hearing or why new facts justify a second look. On October 19, 2026, the Board of Immigration Appeals held in Matter of J-E-D-C-, 30 I&N Dec. 162 (BIA 2026) that those statements are not automatically accepted as true.

The holdings

• The Ninth Circuit's requirement that Immigration Judges and the Board accept as true the facts in an affidavit supporting a motion to reopen, unless inherently unbelievable, is inconsistent with the Supreme Court's reasoning in INS v. Abudu (1988) and its discussion of credibility in Garland v. Ming Dai (2021).
• In reviewing affidavits, declarations or written statements supporting a motion to reopen, Immigration Judges and the Board are not required to accept the facts as true, even when they are not inherently unbelievable.

The facts

The respondent, a citizen of Mexico, was personally served with a notice to appear on April 13, 2024. The notice gave the date, time and place of the first hearing and showed he was told in Spanish of his obligation to appear and the consequences of not appearing. He did not appear at the October 27, 2025 hearing and was ordered removed in absentia. He moved to reopen, claiming exceptional circumstances under section 240(b)(5)(C)(i), 8 U.S.C. § 1229a(b)(5)(C)(i). The Immigration Judge denied the motion on May 13, 2026, and the Board dismissed the appeal.

Two related precedents

• Matter of K-K-U-J-, 30 I&N Dec. 81 (BIA 2026), decided August 27 and designated as precedent by an order dated September 18, 2026: the Immigration Judge erred in finding exceptional circumstances for sua sponte reopening where the record did not support the claim that someone misled the respondent into believing he did not need to appear.
• Matter of M-K-, 30 I&N Dec. 84 (BIA 2026), decided September 25, 2026: reopening was unwarranted because the due process claim was speculative and unsupported by the evidence in the record.

What changes in practice

The common thread is evidence. A declaration is still evidence, but it may be weighed against the rest of the record and found unpersuasive. The general rules for reopening are in 8 C.F.R. § 1003.23; a motion based on exceptional circumstances must be filed within 180 days of the in absentia order, while a motion based on lack of proper notice can be filed at any time.

How to build a stronger motion

• Corroborate every key fact: medical records, hospital admission sheets, police reports, travel records, phone logs or statements from third parties.
• Explain the timeline precisely, including when the person learned of the order and what was done next.
• If someone gave bad advice, identify that person and provide documents showing what was said, such as messages, receipts or contracts.
• Compare the claim with the notice to appear and any prior statements; contradictions undermine credibility. See our guide to the notice to appear.
• Review the basic grounds in when a motion to reopen can be filed and the appeal route in how removal orders are appealed.

Where the circuits stand

J-E-D-C- addresses a Ninth Circuit rule. Courts in other circuits, including the Second and Third Circuits that cover New York and New Jersey, apply their own precedents on affidavit evidence, which counsel should check before filing. When an immigration court fails to rule on a fully briefed motion for a long period, mandamus against the immigration court discusses whether federal court can compel a decision.

Related Guides on This Site

See also Mastering BIA Appeals Your Ultimate Guide to Navigating the Process Overcoming Delays and Securing Success in 2024. See also BIA Appeal Denied. See also BIA Appeal Processing Time 2024 Understanding the Delays and Solutions.

Disclosure: Criminal Immigration Law collaborates with the law firm that publishes Mandamus.com and N600K.com; some articles link to their guides. General information only, not legal advice.