Contrary to popular belief, the decisions of the administrative state are not always swiftly and effectively realized. Immigration law often illustrates this disorder. Aliens scheduled for deportation after being denied asylum status can evade removal for years, creating an interval of time during which their home countries may experience dramatic political and social changes. Government upheavals may precipitate oppression of rival factions, ethnic violence can endanger cultural groups, and enforcement of social-planning policies often targets nonconforming families. In some cases, such national developments present grave, particularized risks to subjects of these countries who face removal from the United States long after they were initially refused asylum. Consider a situation in which a childless alien named Maddy enters the United States in 2000 and is denied asylum in 2001. After avoiding removal, she has children in 2005 and 2006. In 2009, her home country institutes a one-child policy under penalty of sterilization. Should Maddy be apprehended and deported, she will face new dangers that were not present during the 2001 hearing. Given these circumstances, Maddy likely will want to reopen her asylum application process.

8 USC § 1229a, which governs the removal process, contemplates this particular set of circumstances. Generally, a motion to reopen asylum proceedings must be “filed within 90 days of the date of entry of a final administrative order of removal.”1 Section 1229a(c)(7)(C)(ii) offers an exception to the timing rule, however, when the motion to reopen “is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.”2 If an immigrant slated for removal after escaping deportation for an extended period can demonstrate possible eligibility for asylum due to factual developments in his home country, he may be able to reopen his case.

Immigration courts, the Board of Immigration Appeals (BIA), and federal appellate courts agree that an immigrant wishing to reopen asylum proceedings under this provision must demonstrate some shift in national circumstances to satisfy the changed country conditions requirement. A change solely in personal circumstances is insufficient.3 Courts disagree, however, on whether changes in personal circumstances may ever be considered in assessing the implications of the changed country conditions in a motion to reopen asylum proceedings. Two circuits have held that immigration judges must evaluate the effects of changed country circumstances in light of the petitioner’s situation at the time of the original deportation hearing. Four other circuits, however, permit the consideration of “mixed petitions,” which present developments in country conditions alongside the alien’s personal circumstances at the time of the later motion to reopen proceedings.4

To illustrate this division, recall the earlier hypothetical of Maddy, who had children after evading deportation and later attempts to reopen her asylum hearing in light of her home country’s new one-child policy. Under the minority rule, Maddy would be unable to reopen her removal proceedings, as the change in national policy would have been irrelevant to her at the time of the initial hearing. The majority rule, however, would permit Maddy to reopen her proceedings.

While the particular combination of circumstances necessary for a mixed petition may arise in only a select number of asylum cases, the extraordinarily high stakes for affected aliens, as well as the underlying legal and policy questions, are of great significance. The consequences of deportation often involve political violence, religious persecution, forced abortion or sterilization, and other life-threatening perils. As declared by Congress and noted by the courts, it is “the policy of the United States” to “stand[ ] with the persecuted” and protect fundamental freedoms.5 In many cases, immigrants have genuinely, not opportunistically, exercised these freedoms, building complex lives in America and demonstrating steadfast commitment to new religious and political beliefs.6

These ethical considerations, however, coexist with pressing administrative concerns. While each asylum applicant may be entitled to fair consideration of his circumstances, nearly seventy thousand refugees arrived in the United States in 2013, just over twenty-five thousand of whom were granted asylum.7 This immense administrative task is intensified by the inherent burdens of reopening cases. Courts recognize that each layer of the asylum process cuts against the “strong public interest in bringing litigation to a close [ ] promptly,” although this efficiency must be limited by giving the parties “fair opportunity to develop and present their respective cases.”8 Motions to reopen inevitably increase the number and complexity of hearings and frustrate conclusiveness, and “[g]ranting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.”9 That a portion of the legal rule regarding reopening is unsettled only exacerbates the administrative burden. The same “aliens creative and fertile enough”10 to manufacture grounds for reopening may also be more likely to take advantage of jurisdictions with favorable interpretations of the reopening provisions of § 1229a(c)(7)(C).11 Uncertainty as to the actual rule also incentivizes otherwise-unnecessary appeals to both the BIA and federal courts following denial of a motion to reopen. While fairness matters, finality discourages opportunism, preserves efficiency, and conserves the resources necessary for adjudicating other claims,12 and thus is equally fundamental to immigration law. These pressing finality13 and uniformity14 interests, coupled with the reality that no end is in sight for the complex immigration questions facing the United States,15 make this issue worthy of consideration.

This Comment addresses the question in three parts. Part I offers an overview of relevant immigration law before addressing the specific statutory, regulatory, and judicial rules that control the asylum process. Part II presents the specific legal issue of reopening removal proceedings, examining the legal and policy considerations and arguments proffered by both sides of the circuit split. Finally, Part III proposes a novel framework for approaching the issue that would have immigration judges and reviewing courts consider only those changes in personal circumstances that predate changed country conditions. Under this approach, Maddy from the earlier example would be entitled to reopen her case, as the 2009 change in her home country’s policy came after the births of her children in 2005 and 2006. Part III then proceeds to consider the legal viability, policy implications, and administrative feasibility of the proposed solution.

  • 1. 8 USC § 1229a(c)(7)(C)(i).
  • 2. 8 USC § 1229a(c)(7)(C)(ii) (emphasis added). Department of Justice implementing regulations closely mirror this statutory scheme, directly borrowing the textual language of a default ninety-day reopening window with a “changed country conditions” exception. Relevant regulations do not further elaborate on or define these statutory provisions. See 8 CFR § 1003.2(c)(2)–(3); 8 CFR § 1003.23(b)(1), (4)(i).
  • 3. See, for example, Yuen Jin v Mukasey, 538 F3d 143, 153–56 (2d Cir 2008) (upholding the BIA’s interpretation of the regulations to require that, once a case is closed, a petitioner must show changes in country conditions to reopen proceedings, despite language in 8 USC § 1158(a)(2)(D) suggesting that “changed circumstances” alone justify “consider[ation]” of a successive asylum application); Chen v Mukasey, 524 F3d 1028, 1030 (9th Cir 2008) (upholding BIA requirements that an asylum applicant show changed country circumstances in a similar petition); Zheng v Mukasey, 509 F3d 869, 872 (8th Cir 2007) (upholding the BIA regulation).
  • 4. See Rei Feng Wang v Lynch, 795 F3d 283, 284, 286–87 (1st Cir 2015) (collecting cases and “declin[ing] to take a position on a potential circuit split on ‘mixed petitions’”).
  • 5. 22 USC § 6401(b). See also Chandra v Holder, 751 F3d 1034, 1039 (9th Cir 2014) (invoking the congressional statement of policy).
  • 6. See, for example, Yu Yun Zhang v Holder, 702 F3d 878, 879 (6th Cir 2012) (discussing a situation in which the woman seeking asylum had remained in the United States for nearly ten years, converted to Catholicism, married, and had two children).
  • 7. See Daniel C. Martin and James E. Yankay, Refugees and Asylees: 2013 *1 (Department of Homeland Security, Office of Immigration Statistics, Aug 2014), archived at
  • 8. Bi Feng Liu v Holder, 560 F3d 485, 489 (6th Cir 2009), quoting Immigration and Naturalization Service v Abudu, 485 US 94, 107 (1988).
  • 9. Abudu, 485 US at 108.
  • 10. Id.
  • 11. 8 USC § 1252(b)(2) states that a “petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings,” a requirement that allows the location of the original immigration court to dictate which appellate court can review an agency decision. See also Trejo-Mejia v Holder, 593 F3d 913, 915–16 (9th Cir 2010) (directing “transfer [of] the petition for review [of a BIA decision] to the United States Court of Appeals for the Fifth Circuit” in accordance with 8 USC § 1252(b)(2)). Under the current divided rule for mixed petitions, an alien has the option of preemptively bringing a motion to reopen in a favorable jurisdiction. See Bi Feng Liu, 560 F3d at 487 (noting that the alien “appeared to be forum shopping”).
  • 12. See Immigration and Naturalization Service v Doherty, 502 US 314, 323 (1992), citing Abudu, 485 US at 107–08.
  • 13. Doherty, 502 US at 323 (noting the importance of conclusiveness in immigration proceedings).
  • 14. See Cristina M. Rodríguez, Uniformity and Integrity in Immigration Law: Lessons from the Decisions of Justice (and Judge) Sotomayor, 123 Yale L J F 499, 500 (2014) (“In the immigration setting, the belief that judicial interpretation should be geared toward promoting a systemic objective of uniformity has exerted powerful influence over judges.”).
  • 15. See, for example, Kevin Liptak, Obama Calls Caring for Refugees ‘American Leadership’ (CNN, Nov 21, 2015), archived at (discussing the controversy over accepting Syrian refugees into the United States shortly after the 2015 terror attacks in Paris).