Chen (not precedential): New Evidence Includes Evidence After The Merits Hearing Even If The Final Decision Was Months Later

Chen v. Filip
Not Precedential
http://www.ca3.uscourts.gov/opinarch/073705np.pdf
January 22, 2009
Judge Barry, Smith, and Hardiman. Per Curiam opinion.

Overturning the BIA. The case was originally heard by IJ Rosaline K. Malloy, but the error was made by the BIA, not IJ Malloy.

Asylum-seekers can file a motion to reopen a case by focusing on new evidence that was not previously available. The BIA must look at all the new evidence. Evidence is new if, among other things, it was not available at the time of the merits hearing conducted in immigration court.

Evidence is new if it was not available at the time of the merits hearing, regardless of how much time passed before the IJ issued a decision in the case. After all, the asylum-seeker submits evidence at the merits hearing. So unless the IJ rules otherwise, the record is closed at the merits hearing and anything that arises afterwards could not have been presented in the case.

Because certain evidence was new, the BIA erred by refusing to explicitly consider the new evidence of changed circumstances under the test in Zheng v. Mukasey, 2008 WL 5006072 (3d Cir. Nov. 26, 2008).