The Ninth Circuit has determined that the Board of Immigration Appeals (Board) applied the wrong legal standard to a motion to reopen when it determined that the movant established only a possibility, rather than a probability, of future torture. The Ninth Circuit held that a movant need only show prima facie eligibility for relief in a motion to reopen. Thus, in the context of a motion to reopen based on ineffective assistance of counsel, the movant need only show that his counsel’s deficient performance may have affected the outcome of the proceedings. Similarly, in the context of a request for reopening to pursue a 212(c) waiver, the Board’s conclusion at the motion to reopen stage that the new hardship evidence would not impact the outcome in the case was too stringent of a standard for reopening.

The full text of Flores v. Barr can be found here: