20-1085

Garcia-Henriquez v. Garland

BIA

A212 981 797/798

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, 

on the 16th day of August, two thousand twenty-two.

PRESENT:

JON O. NEWMAN,

JOSEPH F. BIANCO,

MYRNA PÉREZ,

Circuit Judges.

_____________________________________

TANIA IVETTE GARCIA-HENRIQUEZ, 

J. S., L.-G.,

Petitioners,∗

v. 20-1085

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONERS: Jennifer Oltarsh, New York, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant 

∗ The Clerk of the Court is respectfully directed to amend 

the caption as set forth above.
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Attorney General; Kohsei Ugumori, 

Senior Litigation Counsel; Nehal 

H. Kamani, Trial Attorney, Office 

of Immigration Litigation, United 

States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a 

Board of Immigration Appeals (“BIA”) decision, it is hereby 

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED.

Petitioners Tania Ivette Garcia-Henriquez and her minor 

son, J.S. L.-G., natives and citizens of El Salvador, seek 

review of a March 3, 2020, decision of the BIA denying their

motion to reconsider the BIA’s prior order denying reopening. 

In re Tania Ivette Garcia-Henriquez, J.S. L.-G., Nos. A 212 

981 797/798 (B.I.A. Mar. 3, 2020).1

We assume the parties’ familiarity with the underlying 

facts and procedural history. 

We review the denial of a motion for reconsideration for 

abuse of discretion. Jin Ming Liu v. Gonzales, 439 F.3d 109, 

1 Our review is limited to the BIA’s March 2020 decision 

denying the motion for reconsideration because petitioners

did not petition for review of any prior decisions. See Jin 

Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). 
3

111 (2d Cir. 2006). “An abuse of discretion may be found 

. . . where the Board’s decision provides no rational 

explanation, inexplicably departs from established policies, 

is devoid of any reasoning, or contains only summary or 

conclusory statements; that is to say, where the Board has 

acted in an arbitrary or capricious manner.” Ke Zhen Zhao 

v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) 

(internal citations omitted). A motion to reconsider “shall 

specify the errors of law or fact in the previous order and 

shall be supported by pertinent authority.” 8 U.S.C. 

§ 1229a(c)(6)(C).

The BIA did not abuse its discretion in denying 

reconsideration because it correctly found that the 

petitioners did not identify any error of fact or law in its 

prior decision. 8 U.S.C. § 1229a(c)(6)(C). The BIA’s prior 

decision denied reopening because the petitioners had not 

demonstrated prima facie eligibility for adjustment of 

status, given that they had unlawfully entered the United 

States. The petitioners’ motion for reconsideration 

corrected an error of fact by noting, as indicated in their 

initial appeal to the BIA, that they would seek consular 
4

processing and not adjustment of status. However, this error 

was immaterial because their unlawful entry made them 

inadmissible and thus not prima facie eligible for permanent 

residence, regardless of whether they sought that status 

through adjustment or consular processing. See 8 U.S.C. 

§§ 1182(a), (a)(7)(A)(i)(I) (providing that, unless granted 

a waiver, “aliens who are inadmissible . . . are ineligible 

to receive visas and ineligible to be admitted to the United 

States” and that those who enter unlawfully are 

inadmissible), 1255(a) (requiring admission or parole for 

adjustment of status).

The petitioners’ motion for reconsideration also 

informed the BIA for the first time that they would seek 

unlawful presence waivers, and requested reopening and remand 

for the removal proceedings to be administratively closed for 

that purpose. The BIA did not abuse its discretion in denying 

reconsideration based on this new information because it was 

not mentioned in the underlying motion to reopen. See Jin 

Ming Liu, 439 F.3d at 111 (“A motion for reconsideration is 

a request that the Board reexamine its decision in light of 

additional legal arguments, a change of law, or perhaps an 
5

argument or aspect of the case which was overlooked.” 

(quotation marks omitted)); In re O-S-G-, 24 I. & N. Dec. 56, 

58 (B.I.A. 2006) (discussing the proper scope of “additional 

legal arguments” for reconsideration, and stating that “[a] 

motion to reconsider based on a legal argument that could 

have been raised earlier in the proceedings will be denied.”). 

We do not address the petitioners’ challenges to the 

former Attorney General’s decision in Matter of Castro-Tum, 

27 I. & N. Dec. 271 (A.G. 2018), which has since been vacated,2

because the BIA did not deny reconsideration based on CastroTum or reach the arguments concerning the validity of that 

decision. The BIA did not determine that the petitioners 

could not obtain administrative closure; rather, it denied 

reconsideration because that request was not made in the 

motion to reopen. Accordingly, the petitioners’ arguments 

here are unrelated to the reasons for the BIA’s denial of 

reconsideration.

For the foregoing reasons, the petition for review is 

2 See Matter of Cruz-Valdez, 28 I. & N. Dec. 326, 329 (A.G. 

2021).
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DENIED. All pending motions and applications are DENIED and 

stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court