[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10150

Non-Argument Calendar

____________________

JOSE BHANERJES ESTRADA-GUTIERREZ, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A094-408-817

____________________

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2 Opinion of the Court 23-10150

Before ROSENBAUM, GRANT, and HULL, Circuit Judges.

PER CURIAM:

Jose Estrada-Gutierrez petitions for review of the Board of 

Immigration Appeals’ (“BIA”) final order (1) dismissing his appeal 

of the Immigration Judge’s (“IJ”) denial of his application for 

cancellation of removal pursuant to Immigration and Nationality 

Act (“INA”) § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), and (2) denying 

his motion to remand. The BIA assumed Estrada-Gutierrez was 

statutorily eligible for cancellation of removal and concluded, as a 

matter of discretion, that cancellation was not warranted in his 

case. The BIA denied Estrada-Gutierrez’s motion to remand 

because his new evidence would not change its discretionary 

decision to deny relief.

In his petition for review, Estrada-Gutierrez raises four 

claims, three challenging the discretionary denial of cancellation of 

removal and one challenging the denial of his motion to remand. 

The government filed a motion to dismiss Estrada-Gutierrez’s 

petition for lack of jurisdiction under INA § 242(a)(2)(B)(i), 8 U.S.C. 

§ 1252(a)(2)(B)(i). After careful review, we grant the government’s 

motion as to one of Estrada-Gutierrez’s claims but deny the motion 

as to his three other claims.

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I. BACKGROUND

A. Unlawful Entry and Removal Proceedings

In April 1996, Estrada-Gutierrez, a citizen of El Salvador, 

illegally entered the United States through Laredo, Texas without 

being admitted or paroled. 

In May 2015, the Department of Homeland Security served 

Estrada-Gutierrez with a Notice to Appear charging him with 

being removable (1) under INA § 212(a)(6)(A)(i), 8 U.S.C. 

§ 1182(a)(6)(a)(i), as an alien present in the United States without 

being admitted or paroled, and (2) under § 1182(a)(7)(A)(i)(I), as an 

immigrant who, at the time of his application for admission, did 

not have a valid entry document. At a May 2015 hearing, an IJ 

sustained both grounds for removability.

B. 2015 Application for Cancellation of Removal

In May 2015, Estrada-Gutierrez filed an application for 

cancellation of removal and adjustment of status pursuant to 8 

U.S.C. § 1229b(b)(1). Estrada-Gutierrez claimed that his removal 

would result in exceptional and unusual hardship to his two minor 

children who are U.S. citizens. Estrada-Gutierrez’s application

indicated he was married, his children would not accompany him 

if he was removed because El Salvador was too dangerous, and he 

had no life to give them there. Estrada-Gutierrez admitted to his 

arrests for driving under the influence (“DUI”) in 2007 and 2008. 

In later filings, Estrada-Gutierrez stated that he and his wife 

were divorced, he was paying his ex-wife child support, and he and 

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4 Opinion of the Court 23-10150

another woman, Nancy Vega, had a child together who was a U.S. 

citizen. Estrada-Gutierrez’s records showed his two Florida DUI 

convictions. 

C. IJ’s 2019 Denial of Application 

In October 2017, Estrada-Gutierrez testified at a merits 

hearing on his application for cancellation of removal. In April 

2019, an IJ issued a decision denying Estrada-Gutierrez’s 

application and ordered his removal to El Salvador. The IJ found 

Estrada-Gutierrez’s testimony, though “not without issues,” was 

credible and concluded that he was statutorily ineligible for relief 

because he had not shown that his children would face exceptional 

or extremely unusual hardship if he was removed. 

Alternatively, even if Estrada-Gutierrez demonstrated the 

requisite hardship for statutory eligibility, the IJ, as an exercise of 

discretion, would deny cancellation relief. The IJ noted positive 

factors that weighed in Estrada-Gutierrez’s favor, including his 

long residence in the United States, consistent work history, 

previous receipt of temporary protective status, and consistent 

child support payments. But the IJ concluded they were 

outweighed by negative factors, including that Estrada-Gutierrez 

entered the United States without inspection and had two DUI 

convictions, which showed a continuous disrespect for the 

country’s laws. 

D. BIA Appeal in 2021 and Motion to Remand in 2022

In September 2021, Estrada-Gutierrez appealed to the BIA, 

arguing the IJ incorrectly determined he did not meet the hardship 

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criteria, despite finding him credible, and that he was entitled to 

cancellation as an exercise of discretion because the IJ placed 

improper weight on his unlawful entry and DUI convictions. 

In 2022, Estrada-Gutierrez also filed motion to remand with 

the BIA. Estrada-Gutierrez asked for a new hearing because Vega 

had suffered a stroke, was partially paralyzed, and was unable to 

care for their child on her own. He asserted that Vega, a citizen of 

Honduras, did not have legal status in the United States, and her 

removal would separate their family and put their child in danger. 

Estrada-Gutierrez argued this new evidence went “directly to the 

issue of whether” he could satisfy the hardship requirement and to 

the exercise of discretion. 

E. BIA’s 2023 Decision

In January 2023, the BIA dismissed Estrada-Gutierrez’s 

appeal and denied his motion to remand. As to cancellation of 

removal under § 1229b(b)(1), the BIA expressly stated it did “not 

reach [Estrada-Gutierrez’s] appellate arguments about his statutory 

eligibility.” Instead, the BIA affirmed the IJ’s alternative denial of 

cancellation relief as an exercise of discretion. 

Citing Matter of Sotelo-Sotelo, 23 I. & N. Dec. 201, 204 (BIA 

2001) (en banc), Matter of C-V-T-, 22 I. & N. Dec. 7, 11 (BIA 1998), 

and Matter of Marin, 16 I. & N. Dec. 581, 584-85 (BIA 1978), 

abrogated in part by Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990), 

the BIA recognized that both favorable and adverse factors must be 

weighed in determining whether an applicant adequately 

demonstrated that he warranted a favorable exercise of discretion. 

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6 Opinion of the Court 23-10150

The BIA also outlined the favorable and adverse factors as 

articulated in Matter of C-V-T-. The BIA explained that the IJ 

“properly” named many factors that weighed in EstradaGutierrez’s favor but concluded that his two DUI convictions 

weighed against him. Although the dates of those convictions 

were outside the ten-year period to affect a finding of good moral 

character, they “remain[ed] a severe negative discretionary factor.” 

The BIA stressed that Congress allots only 4,000 possible 

awards of cancellations of removal each year. Citing Matter of 

Castillo-Perez, 27 I. & N. Dec. 664, 669 (A.G. 2019), the BIA stated 

that because of this high demand and low supply, IJs should award 

such relief “only to the most deserving candidates” and must conduct 

a “careful analysis” when a petitioner with multiple DUIs applies 

for this discretionary relief. (Quotation marks omitted.) The BIA 

acknowledged that all applicants for § 1229b(b)(1) cancellation 

would “have some negative immigration history,” but reasoned 

that it would be “incongruous to ignore [Estrada-Gutierrez’s] 

immigration history” and stated that his illegal entry into the 

United States without inspection was a negative factor in the 

analysis. Accordingly, the BIA determined, after careful 

consideration, that Estrada-Gutierrez’s negative factors 

outweighed his positive factors, and thus, “a grant of cancellation 

of removal [was] not in the best interests of the United States.” 

As to Estrada-Gutierrez’s motion to remand, the BIA 

outlined Estrada-Gutierrez’s new evidence about Vega’s medical 

condition, noting she was not a qualifying relative. While 

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sympathetic to Estrada-Gutierrez’s family, the BIA determined that

“this development does not likely change our discretionary 

analysis.” The BIA assumed Estrada-Gutierrez’s new evidence 

demonstrated exceptional and extremely unusual hardship, but 

concluded he still would be denied relief as a matter of discretion. 

The BIA reinforced that “[e]ven if the aggregate hardship ha[d]

increased in [his] case,” Estrada-Gutierrez’s “criminal record and 

other negative factors . . . continue[d] to outweigh the positive 

factors.” The BIA emphasized that due to the nature of his multiple 

DUI convictions, Estrada-Gutierrez was not deserving of 

discretionary relief. 

II. STANDARDS OF REVIEW

We review only the decision of the BIA, except to the extent 

that the BIA expressly adopts or explicitly agrees with the IJ’s 

opinion. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947-48 (11th Cir. 

2010). We do not reach issues not considered by the BIA. Gonzalez 

v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). 

We review our own subject matter jurisdiction and any legal 

issues de novo. Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 

2016). We review the BIA’s denial of a motion to reopen for an 

abuse of discretion. Dacostagomez-Aguilar v. U.S. Att’y Gen., 40 F.4th 

1312, 1315 (11th Cir. 2022), cert. dismissed, 143 S. Ct. 1102 (2023). 

When reviewing for an abuse of discretion, we will determine only 

whether the BIA exercised its discretion arbitrarily or capriciously. 

Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). “A 

mistake of law is, by definition, an abuse of discretion.” Obasohan 

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8 Opinion of the Court 23-10150

v. U.S. Att’y Gen., 479 F.3d 785, 788 (11th Cir. 2007) (quotation 

marks and brackets omitted), overruled on other grounds by Nijhawan 

v. Holder, 557 U.S. 29 (2009). 

III. CANCELLATION OF REMOVAL

Estrada-Gutierrez applied for cancellation of removal under 

8 U.S.C. § 1229b(b). Under § 1229b(b), the Attorney General has 

discretion to cancel removal if the alien applicant establishes that 

he: (1) has been physically present in the United States “for a 

continuous period of not less than 10 years immediately preceding 

the date of such application” for cancellation of removal; (2) has

been “person[s] of good moral character” while present in the 

United States; (3) has not been convicted of certain specified 

criminal offenses; and (4) his “removal would result in exceptional 

and extremely unusual hardship” to his “spouse, parent, or child, 

who is a citizen of the United States.” INA § 240A(b)(1), 8 U.S.C. 

§ 1229b(b)(1). 

If an applicant satisfies the eligibility criteria for cancellation 

of removal under § 1229b(b), the applicant still has “no 

guarantee[]” that he will be granted relief. Pereida v. Wilkinson, 592 

U.S. 224, 228 (2021). Instead, “[t]he Attorney General may choose 

to grant or withhold . . . relief in his discretion, limited by 

Congress’s command that no more than 4,000 removal orders may 

be cancelled each year.” Id. 

As to the discretionary determination, the BIA “has 

identified an array of factors,” the IJ considers “in deciding whether 

to grant cancellation of removal and other forms of discretionary 

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relief under the [INA].” Matter of Castillo-Perez, 27 I. & N. Dec. 664, 

670-71 (A.G. 2019). The IJ and the BIA must weigh the positive and 

negative factors to determine, in light of the totality of the 

evidence, whether the applicant has demonstrated he warrants a 

favorable exercise of discretion. Matter of Sotelo-Sotelo, 23 I. & N. 

Dec. at 203-04. 

IV. JURISDICTION – 8 U.S.C. § 1252(a)(2)(D)

Ordinarily, we lack jurisdiction to review any judgment 

regarding relief relating to cancellation of removal under 8 U.S.C. 

§ 1229b. INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). The 

Supreme Court recently affirmed the notion that “if [an] IJ decides 

a noncitizen is [statutorily] eligible for cancellation of 

removal . . . his . . . discretionary determination on whether or not 

to grant cancellation of removal in [a] particular case is not 

reviewable as a question of law.” Wilkinson v. Garland, 601 U.S. 

209, 225 n.4 (2024) (emphasis omitted). We thus lack jurisdiction 

to review the BIA’s weighing of the positive and negative factors in 

discretionary determinations on his cancellation application. 

However, we retain jurisdiction to review constitutional 

claims or questions of law raised in a petition for review. 8 U.S.C. 

§ 1252(a)(2)(D); Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1274-76 (11th 

Cir. 2020) (en banc), aff’d sub nom. Patel v. Garland, 596 U.S. 328 

(2022). To invoke our jurisdiction under § 1252(a)(2)(D), a 

petitioner must allege at least a “colorable” constitutional claim or 

question of law. Patel, 971 F.3d at 1275. While a colorable claim 

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need not involve a “substantial” violation, it must “have some 

possible validity.” Id. (quotation marks omitted). 

Claims regarding “the application of a legal standard to 

undisputed or established facts” are questions of law that we have 

jurisdiction to review under § 1252(a)(2)(D). Wilkinson, 601 U.S. at 

217 (quotation marks omitted). A claim that the BIA applied the 

wrong legal standard is also a question of law. Mutua v. U.S. Att’y 

Gen., 22 F.4th 963, 968 (11th Cir.), cert. denied sub nom. Mutua v. 

Garland, 142 S. Ct. 1674 (2022).

Nonetheless, “a party may not dress up a claim with legal or 

constitutional clothing to invoke our jurisdiction.” Id. (quotation 

marks omitted); see also Navarro Guadarrama v. U.S. Att’y Gen., 97

F.4th 750, 753 (11th Cir. 2024). To that end, we lack jurisdiction to 

review abuse-of-discretion claims couched as legal or 

constitutional ones. Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 

(11th Cir. 2007). 

V. ESTRADA-GUTIERREZ’S CLAIMS

A. Application of Matter of Castillo-Perez

On appeal, Estrada-Gutierrez argues that the BIA misapplied 

Matter of Castillo-Perez in evaluating his prior DUI convictions. 

In Matter of Castillo-Perez, the Attorney General addressed 

the “good moral character” requirement to be eligible for 

cancellation of removal under § 1229b(b). 27 I. & N. Dec. at 664. 

The Attorney General affirmed the BIA’s order, concluding that 

Castillo-Perez was not eligible for cancellation relief under 

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§ 1229b(b). Id. at 665, 673. The Attorney General held that 

evidence of two or more DUI convictions during the relevant 10-

year period “establishes a rebuttable presumption that the alien 

lacked good moral character during that time” and, “[a]bsent 

substantial relevant and credible contrary evidence,” the alien is 

statutorily ineligible for cancellation relief. Id. at 664, 671, 673. 

Estrada-Gutierrez contends the BIA failed to apply Matter of 

Castillo-Perez’s “complete test” because it addressed only whether 

the presumption applied and not whether Estrada-Gutierrez had 

rebutted it. This argument ignores that ultimately the BIA assumed

Estrada-Gutierrez met the statutory eligibility criteria for 

cancellation of removal under § 1229b(b), including that he 

demonstrated good moral character. The BIA thus had no 

obligation to evaluate, pursuant to Matter of Castillo-Perez, whether 

Estrada-Gutierrez had overcome any legal presumption that he 

lacked good moral character. 

Estrada-Gutierrez suggests that in Matter of Castillo-Perez the 

Attorney General “also applied the same test to discretionary 

exercises.” This argument also wholly lacks merit. The Attorney 

General in Matter of Castillo-Perez merely made the general 

observation that “[e]ven setting good moral character aside, an 

alien with multiple DUI convictions would likely be denied 

cancellation of removal as a purely discretionary matter.” Id. But 

as to Castillo-Perez’s application, the Attorney General affirmed 

the BIA’s conclusion that Castillo-Perez was statutorily ineligible for 

cancellation of removal and did not consider, much less analyze,

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whether Castillo-Perez warranted an exercise of favorable 

discretion. See id. at 673.

In sum, Estrada-Gutierrez’s arguments about Matter of 

Castillo-Perez have no possible validity and do not raise a colorable 

legal question. Therefore, we lack jurisdiction to review this claim 

pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). See Patel, 971 F.3d 

at 1275 (explaining that a colorable claim must have “some possible 

validity”). Accordingly, we dismiss Estrada-Gutierrez’s petition as 

to this claim. 

B. Cross-Application of Precedent

Estrada-Gutierrez asserts that the BIA applied the wrong 

precedent by citing and applying § 1229b(a) cancellation cases, such 

as Matter of Marin, Matter of C-V-T- and Matter of Sotelo-Sotelo, when 

his case was a § 1229b(b) cancellation case. 

Navarro Guadarrama guides our analysis as to both 

jurisdiction and the merits of Estrada-Gutierrez’s claim. Navarro 

Guadarrama involved a petition for review of the denial of an 

application for adjustment of status under INA § 235(i), 8 U.S.C. 

§ 1255(i) and for a waiver of inadmissibility under 8 U.S.C. 

§ 1182(h), both discretionary forms of relief. 97 F.4th at 751. Citing 

Matter of Mendez-Moralez, 21 I. & N. Dec. 296 (BIA 1996), the BIA 

affirmed the IJ’s denial of relief, agreeing that the negative factors 

outweighed the positive equities. Id. at 752.

In a motion to reconsider, petitioner Navarro Guadarrama 

argued the BIA erred by applying the wrong precedent in Matter of 

Mendez-Moralez, which applies to aliens with certain convictions 

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seeking adjustment who require § 1182(h) waivers. Id. at 752-53. 

Navarro Guadarrama contended the BIA should have applied 

Matter of Arai, 13 I & N. Dec. 494 (BIA 1970), which concerns aliens 

without those convictions seeking adjustment who don’t need 

§ 1182(h) waivers. Id. at 754. As background to understanding 

Navarro Guadarrama, if an alien has no qualifying convictions and 

no adverse factors, a presumption arises that a favorable exercise of 

discretion is appropriate. See Matter of Arai, 13 I. & N. Dec. at 496. 

On the other hand, if an alien has no qualifying conviction but has 

adverse factors, then there is no presumption, and the IJ must 

balance the positive and negative factors. Id.; Matter of MendezMoralez, 21 I. & N. Dec. at 300. 

Although Navarro Guadarrama had no qualifying 

convictions requiring a § 1182(h) waiver, he also had adverse 

factors and was not entitled to Matter of Aria’s presumption, and 

Matter of Aria thus did not benefit him. Navarro Guadarrama, 97 

F.4th at 754-55.

The point for Estrada-Gutierrez’s appeal here is that the 

Navarro Guadarrama Court determined it had jurisdiction under 

§ 1252(a)(2)(D) because the petitioner (1) was not challenging the 

BIA’s “granular, case-by-case balancing of the positive and negative 

equities in his particular case,” but (2) was arguing that the BIA 

applied the “wrong framework” to his case altogether, which was 

“precisely the sort of question of law” that this Court has 

jurisdiction to consider. Id. at 754.

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As to the merits, the Navarro Guadarrama Court observed 

that the “mere fact” that the BIA cited one case rather than the 

other “d[id] not conclusively demonstrate that it applied the wrong 

standard.” Id. at 755. The Court stressed that the BIA had 

explained that it cited Matter of Mendez-Moralez solely for an 

“overarching proposition” about weighing adverse and favorable 

factors that was comparable to a statement also articulated in Arai. 

Id. Thus, our Court concluded that “even if the Board cited the 

‘wrong’ case, there’s no indication that, in substance, it applied the 

wrong standard.” Id.

Applying the lessons of Navarro Guadarrama to EstradaGutierrez’s petition, we first conclude that we have jurisdiction 

over his claim that the BIA allegedly applied the wrong precedent 

and thus the wrong legal framework by citing cases involving 

cancellation of removal under § 1229b(a) rather than under 

§ 1229b(b). This issue arguably has “some possible validity” and 

thus is colorable. See Patel, 971 F.3d at 1275.

Next, turning to the merits, we conclude the BIA did not 

apply the wrong legal standard here for reasons similar to those 

given in Navarro Guadarrama. First, it is true that § 1229b(a) and 

§ 1229b(b) contain different statutory eligibility criteria for 

cancellation of removal and that the cases cited in the BIA’s order 

address discretionary relief under § 1229b(a), not § 1229b(b) which 

Estrada-Gutierrez sought. However, as the Navarro Guadarrama

Court explained, the “mere fact” that the BIA cited to § 1229b(a) 

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cases does “not conclusively demonstrate that it applied the wrong 

standard.” See Navarro Guadarrama, 97 F.4th at 755. 

That is particularly true here because the IJ and the BIA 

assumed Estrada-Gutierrez satisfied the statutory eligibility 

requirements for § 1229b(b) cancellation. And while the eligibility 

requirements in § 1229b(b) are different from those in § 1229b(a), 

once the respective eligibility requirements are met, the IJ and the 

BIA in both instances decide whether to exercise their discretion by 

balancing the positive and negative factors. See Matter of SoteloSotelo, 23 I. & N. Dec. at 203-04 (involving § 1229b(a) cancellation); 

Matter of Castillo-Perez, 27 I. & N. Dec. at 670-71 (involving 

§ 1229b(b) cancellation). 

Here, there is not even a presumption difference as in 

Navarro Guadarrama. In fact, in its order dismissing EstradaGutierrez’s appeal, the BIA cited Matter of Marin, Matter of C-V-T-, 

and Matter of Sotelo-Sotelo to explain the general proposition that it 

balances positive and negative factors to determine whether a 

favorable exercise of discretion is warranted. Further, in Matter of 

Marin, the BIA made clear that its admonition against crossapplication of precedent “as between different types of relief” did 

not apply to “the general approach” of “the balancing of favorable 

and unfavorable factors within the context of the relief sought.” 16 

I. & N. Dec. at 586. Instead, the BIA stated that this “general 

approach” “may be applied to any case involving the exercise of 

discretion.” Id.; Matter of Mendez-Moralez, 21 I & N. Dec. at 300. 

So, where statutory eligibility for cancellation of removal is not at 

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issue, the discretionary analyses for § 1229b(a) and § 1229b(b) relief 

“effectively merge.” See Navarro Guadarrama, 97 F.4th at 754.

In short, Estrada-Gutierrez has shown no discernible legal 

error in the BIA’s analysis here. See Matter of C-V-T-, 22 I & N. Dec. 

at 11-12. The BIA identified the necessary factors to be considered 

under the general approach outlined by its precedent, found that 

the IJ also properly considered those relevant factors, and 

concluded that Estrada-Gutierrez’s several positive factors were 

outweighed by his criminal history. See Matter of Marin, 16 I & N. 

Dec. at 584-85. 

C. Failure to Adopt a Uniform Standard for Exercising

Discretion in § 1229b(b) Cases

Estrada-Gutierrez argues that the BIA committed legal error 

by failing to adopt a uniform and consistent standard for exercising 

discretion in § 1229b(b) cancellation-of-removal cases, which has 

led to arbitrary and capricious decisions. Whether the BIA must 

adopt a uniform standard in § 1229b(b) cases arguably presents a 

colorable legal question over which we have jurisdiction. See 8 

U.S.C. § 1252(a)(2)(D). 

“When an administrative agency sets policy, it must provide 

a reasoned explanation for its action.” Judulang v. Holder, 565 U.S. 

42, 45 (2011). In reviewing whether agency action is arbitrary or 

capricious, we examine whether the agency has “engaged in 

reasoned decisionmaking,” that is, “whether the decision was 

based on a consideration of the relevant factors and whether there 

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has been a clear error of judgment.” Id. at 53 (quotation marks 

omitted).

While applicants must satisfy different statutory elements to 

be eligible for cancellation of removal under § 1229b(a) and 

§ 1229b(b), there is nothing in the plain language of § 1229b that 

indicates that the discretionary analysis for either form of relief 

differs. See 8 U.S.C. § 1229b. Further, because cancellation of 

removal under § 1229b is a purely discretionary form of relief, 

statutory eligibility “still yields no guarantees” that an alien’s 

application will be granted. Ponce Flores v. U.S. Att’y Gen., 64 F.4th 

1208, 1219 (11th Cir. 2023) (quotation marks omitted). Eligibility 

for discretionary relief “in no way limits the considerations that 

may guide the Attorney General in exercising her discretion to 

determine who, among those eligible, will be accorded grace.” 

Patel, 971 F.3d at 1267 (quotation marks omitted). Instead, IJs make 

“case-by-case determinations” as to whether an alien is entitled to 

a favorable exercise of discretion. Id. at 1268.

The BIA has consistently explained that it has not adopted 

“an inflexible test” for making discretionary rulings because it 

would be both “undesirab[le] and difficult[], if not impossib[le],” to 

define “any standard in discretionary matters . . . which may be 

applied in a stereotyped manner.” Matter of Marin, 16 I. & N. Dec. 

at 584; see also Matter of C-V-T-, 22 I. & N. Dec. at 11. Instead, the 

BIA has concluded that “each case must be judged on its own 

merit” and has promulgated a “general approach”—balancing 

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18 Opinion of the Court 23-10150

specific determination—that is applicable to all forms of 

discretionary relief, including § 1229b(b). Matter of Marin, 16 I & N. 

Dec. at 584, 586; Matter of Castillo-Perez, 27 I. & N. Dec. at 670-71.1 

In the context of other discretionary relief, this Court has 

recognized that the BIA is “not bound by an inflexible test” when 

determining whether to exercise favorable discretion. See Cobourne 

v. I.N.S., 779 F.2d 1564, 1566 (11th Cir. 1986) (addressing a waiver 

of inadmissibility under former INA § 212(c)). Here too, the BIA is 

not required to adopt an inflexible standard for exercising 

discretionary authority under § 1229b(b). 

Here, Estrada-Gutierrez has not shown that the BIA, by 

adopting and using case-specific balancing of positive and negative 

factors to guide discretion, fails to engage in reasoned 

decisionmaking. See Judulang, 565 U.S. at 53. We recognize that 

Estrada-Gutierrez cites several unpublished decisions in which the 

BIA, unlike in his case, favorably exercised discretion on behalf of 

1 Favorable considerations include an applicant’s (1) United States family ties, 

(2) long residence within the country, (3) evidence of hardship, (4) military 

service, (5) employment history, (6) ties to property or businesses, 

(7) evidence of value or community service, (8) “proof of genuine 

rehabilitation” in cases involving a criminal record, and (9) other evidence of 

good character. In re C-V-T-, 22 I & N. Dec. at 11. Negative considerations 

include (1) “the nature and underlying circumstances of the grounds of 

exclusion or deportation (now removal)” at issue (2) “the presence of 

additional significant violations of [the U.S.’s] immigration laws,” (3) the 

existence of a criminal record, and the “nature, recency, and seriousness” of 

such a record, and (4) “the presence of other evidence indicative of a 

respondent’s bad character or undesirability as a permanent resident of this 

country.” Id. 

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23-10150 Opinion of the Court 19

§ 1229b(b) cancellation-of-removal applicants with DUI 

convictions. But Estrada-Gutierrez ignores the other positive and 

negative factors the BIA weighed in each of those cases. When the 

BIA conducts case-by-case determinations that consider each 

applicant’s particular circumstances, it is not surprising that some 

applicants with DUI convictions will be granted § 1229b(b) 

cancellation relief as a matter of discretion and others will not. 

That does not mean the BIA’s decisions are arbitrary or capricious.

Estrada-Gutierrez also contends the BIA’s general approach 

is arbitrary or capricious because it treats immigration law 

violations, whether minor or major, as “automatically a negative 

factor,” even though cancellation of removal under § 1229b(b) is 

available only to applicants who have violated immigration laws. 

Estrada-Gutierrez maintains that “[a] test that actually takes the 

nature of the relief into consideration might yield the conclusion 

that minor immigration violations are neutral factors.”2 

But Estrada-Gutierrez does not explain how the BIA’s casespecific balancing of the positive and negative factors fails to 

properly account for a § 1229b(b) applicant’s immigration history. 

2 To the extent Estrada-Gutierrez argues the BIA improperly considered his 

1996 illegal entry into the country as a negative factor, the BIA was following 

its precedent by considering the nature of the alien’s immigration history as a 

relevant factor. See Matter of Marin, 16 I. & N. Dec. at 584. This Court also 

has recognized that “the flagrancy and nature of aliens’ violations of 

immigration laws” may be considered when determining whether to exercise 

discretion. Patel, 971 F.3d at 1268 (quoting INS v. Rios-Pineda, 471 U.S. 444, 451 

(1985)) (alterations adopted). 

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20 Opinion of the Court 23-10150

To be sure, the BIA’s general approach identifies the nature and 

underlying circumstances of the applicant’s grounds for removal as 

an “adverse factor.” See Matter of C-V-T-, 22 I. & N. Dec. at 11. But 

the BIA decides how much weight to give to each factor, including 

that one, in balancing the positive and negative factors. In other 

words, nothing about this flexible, case-specific analytical 

framework prevents the BIA from assigning less weight to less 

serious immigration violations and greater weight to more serious 

immigration violations. Indeed, such weighing is inherent in a factbound, case-by-case balancing of the various factors. See Matter of 

Sotelo-Sotelo, 23 I. & N. Dec. at 203-04 (explaining that when 

negative factors grow “[m]ore serious” it is incumbent upon the 

applicant to present “additional offsetting favorable evidence”

(quotation marks omitted)). Estrada-Gutierrez has not shown that 

the BIA’s use of its general approach to guide its exercise of 

discretion in § 1229b(b) cases results in arbitrary or capricious 

decisions.

Estrada-Gutierrez also has not shown any legal error in the 

BIA’s decision to deny his application for § 1229b(b) cancellation 

relief. As already discussed, in dismissing Estrada-Gutierrez’s 

appeal, the BIA cited to the relevant precedent, including Matter of 

Marin and Matter of C-V-T-, and considered the positive and 

negative factors relevant to the circumstances of his case. The BIA

was not required to articulate and apply a more specific test for 

evaluating whether a favorable exercise of discretion is warranted 

in § 1229b(b) cases.

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23-10150 Opinion of the Court 21

D. Motion to Remand

Estrada-Gutierrez argues the BIA “necessarily erred” 

because it based the decision to deny his motion to remand on its 

exercise of discretion in denying § 1229b(b) relief, which “was 

legally erroneous for the reasons” he argued above. 

Because Estrada-Gutierrez’s motion to remand sought to 

introduce evidence about Vega’s stroke that was not previously 

presented, we treat his motion as a motion to reopen. See Sow v. 

U.S. Att’y Gen., 949 F.3d 1312, 1317 (11th Cir. 2020). We generally 

have jurisdiction to review the BIA’s denial of a motion to reopen. 

Ponce Flores, 64 F.4th at 1223. However, if § 1252(a)(2)(B) strips us 

of jurisdiction to review the underlying final order of removal, we 

also lack jurisdiction to review the denial of a motion to reopen,

except to the extent a colorable constitutional or legal question is 

presented. Id. at 1223-24 (citing Guzman-Munoz v. U.S. Att’y Gen., 

733 F.3d 1311, 1313-14 (11th Cir. 2013); see 8 U.S.C. § 1252(a)(2)(D). 

Here, Estrada-Gutierrez’s argument is rooted in the same 

contentions that the BIA legally erred in analyzing whether he 

warranted discretionary relief, which we already discussed and 

rejected above. Thus, although Estrada-Gutierrez identifies a legal 

question over which we retain jurisdiction, his challenge to the 

BIA’s denial of his motion to remand is without merit. For the 

reasons already explained, the BIA did not commit legal error in 

determining as a matter of discretion that Estrada-Gutierrez was 

not entitled to cancellation of removal under § 1229b(b). 

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VI. CONCLUSION

For the foregoing reasons, we grant in part the 

government’s motion to dismiss for lack of jurisdiction and dismiss 

Estrada-Gutierrez’s claim that the BIA misapplied Matter of CastilloPerez. In all other respects, we deny the government’s motion to 

dismiss and deny Estrada-Gutierrez’s petition for review. 

MOTION GRANTED IN PART, PETITION DISMISSED IN 

PART AND DENIED IN PART.

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