Matter of J-E-D-C-: The Judge Does Not Have to Believe Your Affidavit

A motion to reopen is usually decided on paper. The person swears to what happened, and the judge reads it. For decades in the Ninth Circuit, the rule was that the judge had to take that sworn account as true unless it was “inherently unbelievable.” The Board has now said it will not follow that rule.

The holding

Headnote one states that the Ninth Circuit’s requirement “is inconsistent with the Supreme Court of the United States’ reasoning and holding in INS v. Abudu, 485 U.S. 94 (1988), and the discussion of credibility in Garland v. Ming Dai, 593 U.S. 357 (2021).” Headnote two is quoted above. The Board declined to follow Perez-Portillo v. Garland and Bhasin v. Gonzales, and sided with a dissenting Ninth Circuit judge in a September 2026 case.

The case

The respondent, a Mexican national, was personally served with a notice to appear in April 2024, with the date and time explained to him in Spanish. He did not appear in October 2025 and was ordered removed in absentia. His motion to reopen said he expected a later notice. The immigration judge found the declaration inherently unbelievable, found no exceptional circumstances, and denied reopening. The Board affirmed on the broader ground: even where a statement is not inherently unbelievable, the judge need not accept it.

What it means

The practical consequence falls hardest on in absentia cases. Under Diji and Chamorro Castillo, the government’s notice obligation has narrowed; under J-E-D-C-, the person’s path back into court has narrowed too, because a sworn explanation of why they missed the hearing is now evidence to be weighed, not a fact to be accepted.

That changes what a motion to reopen should look like. A declaration standing alone is weaker than it was. Corroboration — medical records, travel records, a letter from an employer, a copy of the returned envelope, anything that exists outside the person’s own account — now does work that the declaration used to do by itself. The decision arose in the Ninth Circuit, which has already said, in words the Board itself quotes, that “A BIA decision cannot displace our precedent”; whether that court accepts the Board’s position is the next question there. Outside the Ninth Circuit, the Board’s rule binds immigration judges unless the governing court of appeals has held otherwise.

This article is general legal information about a recent precedent decision, not legal advice, and does not create an attorney-client relationship. The weight given to evidence on a motion to reopen depends on the record and the law of the governing circuit. Consult a qualified immigration attorney. This website is attorney advertising.