Facts and Procedural History 

In Davis v. Garland, 91 F.4th 1259 (8th Cir. 2024) recent decision, the Eighth Circuit held that a denial of a motion to reopen requires a reasoned decision. The decision follows a long and procedural and factual history in which the respondent’s mental health made evidence unavailable at his initial individual hearing. The Eight Circuit’s decision leaves open the possibility that mental health may have made evidence unavailable at that hearing.

Mr. Davis, a citizen of Liberia, came to the United States as an asylee in 2008. While living with his family, he began using drugs and experiencing mental health symptoms, which included hearing voices and confusing reality with hallucinations. He would later be diagnosed with schizophrenia, bipolar disorder, and posttraumatic stress disorder. His drug use and symptoms caused him to lose stable housing. During this period, he was convicted of aggravated robbery and fleeing a peace officer – a conviction that resulted in a 58-month sentence.  

The Department of Homeland Security (DHS) initiated removal proceedings against him while he was serving his sentence in the Minnesota Department of Corrections through the Institutional Hearing Program. This program permits DHS to initiate removal proceedings and for the Executive Office for Immigration Review (EOIR) to hold hearings while a respondent is serving a criminal sentence.  

Mr. Davis was represented by counsel at his initial individual hearing. At this hearing, he chose to apply only for adjustment of status with a refugee waiver. He declined to apply for withholding of removal or deferral of removal under the Convention Against Torture (CAT). Mr. Davis’s mental health was discussed, but no competency hearing was held. The Immigration Judge (IJ) denied his application for adjustment of status and ordered him removed. 

While his case was on appeal, Mr. Davis began to take psychiatric medications to treat his mental health symptoms. He obtained new counsel and, with the benefit of medication, disclosed additional information to his new attorney. He disclosed that his mental health symptoms interfered with his memory and understanding of his previous immigration proceedings. He also revealed that he had suffered beatings by military groups, interrogations based on tribal memberships, and numerous other violent encounters in Liberia.  

On appeal, the BIA found that the IJ failed to formally terminate his asylee status. Without this formal termination of his asylee status, he could not be removed. The BIA remanded the case and narrowed the remand “to the issue of termination of the respondent’s asylum” and “explicitly retained jurisdiction.” 

Once remanded to the IJ, Mr. Davis requested to reopen his immigration case, apply for withholding of removal and CAT, and hold a competency hearing under Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011). The IJ found that he could not consider any of these issues and that the BIA’s remand was restricted to the issue of termination of his asylee status.  

Mr. Davis appealed the IJ’s second decision. The BIA found that the IJ did have jurisdiction over new claims and additional evidence. However, the BIA ultimately upheld the IJ’s decision and found that Mr. Davis had not met the motion to reopen standard to establish that evidence of his mental health and encounters in Liberia were “new, previously unavailable, or would likely change the result in his case.” Davis v. Garland, 91 F.4th 1259 (8th Cir. 2024). 

Analysis and Holding

As a preliminary matter, the Eighth Circuit affirmed that it has jurisdiction over the constitutional claims raised by Mr. Davis under 8 USC § 1252(a)(2)(C). The court then found that both the IJ and the BIA erred by failing to provide any rational explanation to deny the motion to reopen. The IJ’s brief oral decision did not mention any of the motion to reopen factors. The IJ referenced ineffective assistance of counsel. However, the motion to reopen was not based on that claim. The passing reference was not enough to explain the IJ’s denial. Similarly, the BIA failed to specifically address the motion to reopen factors. The Eighth Circuit’s remand contains some helpful information for practitioners.  

First, the Eighth Circuit affirmed that a BIA remand for a specific purpose does not necessarily foreclose the presentation of new claims and additional evidence on remand. An IJ may consider additional, unavailable evidence and motions to reopen when a case is on remand from the BIA. IJs consistently find that BIA remands prevent consideration of new claims or administrative closure. Here, the BIA’s underlying decision signals that a remand can only restrict issues that were already brought before it.  

Second, the Eighth Circuit signals that a respondent’s mental health may provide the basis for a motion to reopen, since “[m]ental competency is not a static condition.” Matter of M-A-M-, 25 I. & N. Dec. 474, 480 (BIA 2011). Likewise, evidence of a respondent’s mental health and its availability are not static. Even where a diagnosis has not changed, factors such as changes in medication or the presence of symptoms might interfere with a client’s ability to share evidence or recount critical information relating to a claim for relief.  

EOIR’s tendency to value administrative efficiency over due process rights can make motions to reopen, and appeals based on a respondent’s mental health an uphill battle. Documenting mental health symptoms and maintaining up-to-date medical records will strengthen arguments and the record for appeal. This decision should encourage practitioners to push back through motions to reopen and appeals.