UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARIO FONSECA-FONSECA, No. 20-71977 AKA Felipe Fonseca, AKA Guadalupe Fonseca, Agency No. A097-764-795 Petitioner,

v. OPINION MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 16, 2023 San Francisco, California

Filed August 8, 2023

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and Lucy H. Koh, Circuit Judges.

Opinion by Judge Nguyen 2 FONSECA-FONSECA V. GARLAND

SUMMARY *

Immigration

The panel granted a petition for review of the Board of Immigration Appeals’ denial of Mario Fonseca-Fonseca’s motion to reopen immigration proceedings to apply for cancellation of removal, and remanded for consideration of the motion under the correct standard. The BIA can deny a motion to reopen on any one of at least three independent grounds: for failure to establish a prima facie case for the relief sought; for failure to introduce previously unavailable, material evidence; or based on a determination that even if these requirements were satisfied, a movant would not be entitled to the discretionary grant of relief sought. Here, the BIA denied petitioner’s motion to reopen after concluding that Fonseca-Fonseca failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that “would likely change” the result of his case. The panel clarified any possible confusion in this circuit’s case law regarding a petitioner’s burden of proof in a motion to reopen. Prima facie eligibility for relief requires only a threshold showing of eligibility—a “reasonable likelihood” that the petitioner would prevail on the merits if the motion to reopen were granted. To be eligible for a discretionary grant of relief, a petitioner must present new evidence that “would likely change” the result in the case. Because the BIA erred by applying the wrong legal * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FONSECA-FONSECA V. GARLAND 3

standard, the panel remanded to the BIA to adjudicate the motion to reopen under the proper standard.

COUNSEL Andrew J. S. Newcomb (argued), Mendoza Immigration, San Jose, California; Elias Mendoza, Mendoza & Campos Law Offices PC, Sacramento, California; for Petitioner. Allison Frayer (argued) and Carmel A. Morgan, Trial Attorneys; Jennifer P. Levings, Senior Litigation Counsel; Julia Tyler, Acting Senior Litigation Counsel; Brian M. Boynton, Acting Assistant Attorney General; United States Department of Justice, Office of Immigration Litigation, Civil Division; Washington, D.C.; for Respondent.

OPINION NGUYEN, Circuit Judge:

Mario Fonseca-Fonseca, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. Fonseca-Fonseca sought to reopen his immigration proceedings to apply for cancellation of removal. The BIA found that he failed to establish prima facie eligibility for cancellation of removal because he did not submit new evidence that would likely change the result in his case. The parties disagree on a threshold issue—whether the BIA applied the correct burden of proof. The government 4 FONSECA-FONSECA V. GARLAND

argues that, to demonstrate prima facie eligibility for the underlying relief in a motion to reopen, a petitioner must present new evidence that “would likely change” the result of his case. See In re Coelho, 20 I. & N. Dec. 464, 473 (B.I.A. 19