UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ PEDRO VALLE-HERNANDEZ, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 22-9588 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , Chief Judge, HARTZ , and MORITZ , Circuit Judges.

________________ _________________ Pedro Valle-Hernandez petitions for re view of a decision by the Board of Immigration Appeals (BIA) denying his moti on to reopen. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny his petition for review. I. Background Mr. Valle-Hernandez is a native a nd citizen of Mexico. In 2018, the Department of Homeland Security issued a notice to appear alleging that he was

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 29, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 12 removable on the ground that he had not been admitted or paroled into the United States after inspection by an immigration officer. Mr. Valle-Hernandez conceded he was removable but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). An immigration judge (IJ) denied that re lief, concluding that Mr. Valle-Hernandez did not demonstrate: (1) good moral character, see § 1229b(b)(1)(B); or (2) that his removal to Mexico would result in ex ceptional and extremely unusual hardship to his qualifying relatives—at that time, his four United-St ates-citizen sons— see § 1229b(b)(1)(D). The BIA dismissed Mr. Valle-Hernand ez’s appeal, concluding as follows: We acknowledge the aggregate hard ship to [Mr. Valle-Hernandez’s] children if he is to be removed to Mexico, particularly if the children separate from their father and remain in the United States with their mother. However, [he] raises no arguments on app eal that persuade us to reverse the Immigration Judge’s decision with resp ect to his failure to satisfy the hardship standard for cancellation of re moval. Thus, we need not reach the Immigration Judge’s finding that [Mr. Valle-Hernandez] did not demonstrate good moral character for pur poses of cancellation of removal. R. at 89. Mr. Valle-Hernandez did not pe tition for review of the BIA’s dismissal of his appeal. Subsequent to his hearing befo re the IJ, Ana Martinez—who is Mr. Valle-Hernandez’s long-term partner a nd the mother of his four sons—adjusted her status to legal permanent resident. Mr. Valle-Hernandez and Ms. Martinez then married, after which he filed a timely motion to reopen w ith the BIA seeking further consideration of his application for cance llation of removal. He noted that Ms. Martinez was a newly qualifying relativ e, in addition to his children, for Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 23 purposes of cancellation of removal, a nd he submitted evidence of hardship to Ms. Martinez that would re sult from his removal. The BIA denied the motion, concl uding that Mr. Valle-Hernandez’s new evidence did not alter its conclusion that he had not demonstrated a prima facie case of exceptional and extremely unusual hardship to his qualifying relatives. It stated that, “[c]onsidering that the evidence supp orting the motion is not likely to change the outcome of the proceedings, it does not warrant a new hearing.” Id. at 4.
II. Discussion The BIA’s denial of a motion to reopen is “a final, separately appealable order,” and for purposes of a petition for review is “the functional equivalent of and analogous to” a final removal order. Infanzon v. Ashcroft , 386 F.3d 1359, 1361, 1362 (10th Cir. 2004) (int ernal quotation marks omitted). We review the BIA’s denial of a motion to reopen for an abuse of discretion. Id. at 1362. “The BIA abuses its discretion when its decision provides no ra tional explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements.” Id. (quotation omitted). The BI A also abuses its discretion by committing a legal error. See Qiu v. Sessions , 870 F.3d 1200, 1202 (10th Cir. 2017).
A. Jurisdiction In his motion to reopen, Mr. Valle-H ernandez sought reopening and a remand to the IJ to reevaluate his eligibility for cancellation of re moval under § 1229b(b)(1). Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), th is court lacks jurisd iction to review “any Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 34 judgment regarding the granting of relief under” § 1229b. Section 1252(a)(2)(B)(i) also precludes us from “review[ing] the BIA’s denial of a motion to reopen because the alien still has failed to s how the requisite hardship.” Alzainati v. Holder , 568 F.3d 844, 849 (10th Cir. 2009). But 8 U.S.C. § 1252(a)(2)(D) preserves our jurisdiction to review “questions of law” even when § 1252(a)(2)(B)(i) otherwise precludes our jurisdiction. See Galeano-Romero v. Barr , 968 F.3d 1176, 1182 (10th Cir. 2020). A petitioner can raise a reviewable question of law “(1) by advancing a stat utory-construction argument, or (2) by disputing the applicati on of a legal standard to undisputed or established facts.” Id. (citation and internal quotation marks omitted). In his petition for review, Mr. Valle-Her nandez first argues that the BIA erred by requiring him to demonstrate a prima facie case for relief by presenting evidence that would likely change the outcome of th e proceedings. He c ontends that this requirement has no statutory ba sis in, and conflicts with, th e requirements of 8 U.S.C. § 1229a(c)(7), which governs motions to reopen, and also conflicts with BIA caselaw. Because his argument involves stat utory construction and a challenge to the legal standard the BIA applie d in denying his motion to reope n, we conclude it raises reviewable questions of law under § 1252(a)(2)(D). See Galeano-Romero , 968 F.3d at 1182; id. at 1184 (holding that whether th e BIA followed its own precedent presents a question of law). Mr. Valle-Hernandez’s second contention is that the BIA failed to consider the aggregate and cumulative hard ship to his wife and child ren, contrary to its own Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 45 caselaw. This, too, raises a reviewable question of law. See id. at 1184. We therefore conclude that we have jurisdic tion to review both propositions raised in Mr. Valle-Hernandez’s petition for review. B. Failure to Exhaust First Proposition The government argues that Mr. Valle -Hernandez did not exhaust before the BIA his first proposition—that the BIA applied an incorrect legal standard in denying his motion to reopen. Under 8 U.S.C. § 125 2(d)(1), “[a] court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the al ien as of right.” 1 “It is a fundamental pr inciple of administrative law that an agency must have the opportunity to rule on a challenger’s arguments before the challenger may bring those arguments to court.” Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Cir. 2010), abrogated on other grounds by Santos-Zacaria v. Garland , 598 U.S. 411, 413 (2023). In the immigration context, “[i]t is not enough to go thro ugh the procedural motions of a BIA appeal, or to make general statements in the notice of appeal to the BIA, or to level broad assertions in a filing before the Board.” Id. (internal quotation marks omitte d). Rather, “[t]o satisfy § 1252(d)(1), an alien must present the same specific legal theory to the BIA before he or she may advan ce it in court.” Id. In his motion to reopen, Mr. Valle-H ernandez set forth the law governing motions to reopen. R. at 14-16. He quoted the provisions governing such motions in

1 Mr. Valle-Hernandez does not contest the applicability of the statutory exhaustion requirement in § 1252(d)(1) to his motion to reopen filed with the BIA. Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 56 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c)(1). R. at 14-15. And he cited INS v. Abudu , 485 U.S. 94, 104-05 (1988), Matter of Coelho , 20 I. & N. Dec. 464, 472 (B.I.A. 1992), and this court’s decision in Mickeviciute v. INS , 327 F.3d 1159, 1162 (10th Cir. 2003), as defini ng the three grounds on which the BIA can reasonably deny a motion to reopen, including the failure to establish a prima faci e case for the relief sought. R. at 15-16. Mr. Vall e-Hernandez stated that, although Coelho was decided before Congress enacted § 12 29a(c)(7), “these three grou nds for denial remain the relevant considerations.” Id. He did not assert any c onflict between § 1229a(c)(7) and Abudu , Coelho , or Mickeviciute

. Mr. Valle-Hernandez now argues that the BIA erred by denying his motion based upon outdated legal standards—in par ticular the requirement to demonstrate a prima facie case for relief— that conflict with the subs equently enacted statutory language governing motions to reopen. He maintains that, to obtain reopening, he was only required to state the new facts to be proven at a hearing, supported by material evidence that wa s not previously available or discoverable. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(1). Mr. Valle- Hernandez did not exhaust this contention in his motion to reopen file d with the BIA. Rather, he acknowledged that Coelho ’s three grounds for denial of su ch a motion—including demonstrating a prima facie case for relief— “remain the relevant considerations.” R. at 16. Mr. Valle-Hernandez also contends th at the standard the BIA applied in denying his motion conflicts with the BIA’ s own caselaw. He a sserts that the BIA erred by requiring him “to conclusively esta blish” that the new facts he alleged Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 67 would change the outcome in hi s case. Pet’r’s Opening Br. at 8 (citing R. at 4). The BIA did not use this termi nology. It concluded that “the evidence supporting the motion is not likely to change the outcome of the proc eedings.” R. at 4 (emphasis added). Mr. Valle-Hernandez ar gues the BIA erred in relying on Matter of F-S-N- , 28 I. & N. Dec. 1, 3 (B.I.A . 2020), for this standard, see R. at 4, because that case relied on the “outdated” decisions in Abudu and Coehlo , Pet’r’s Opening Br. at 16. But as noted, he did not argue in his motion to reopen that the st andards set forth in Abudu and Coelho are no longer applicable to such motions. Mr. Valle-Hernandez further contends th at to demonstrate a prima facie case for relief he was only required to satisfy the standard in In re L-O-G- , 21 I. & N. Dec. 413, 418-19 (B.I.A. 1996) (en banc), in which the BIA noted it had “been willing to reopen where the new facts alleged, when c oupled with the facts already of record, satisfy us that it would be worthwhile to develop the issues further at a plenary hearing on reopening,” id. at 419 (internal quotation mark s omitted). The BIA stated that “[b]y finding that an alien has made out a prima facie case of . . . hardship,” it was “deciding only that there is a re asonable likelihood that the statutory requirements for the relief soug ht have been satisfied, a nd that there is a reasonable likelihood that relief will be granted in the exercise of discretion.” Id. Mr. Valle-Hernandez did not cite L-O-G- or this reasonable-likelihood standard in his motion to reopen. He assert s in his reply brief th at, while he knew he was required to establish a prima facie case for relief, he neith er knew nor should Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 78 have known that the BIA would require hi m to demonstrate that his new evidence was likely to change the outcome of hi s proceedings. We are not persuaded. The IJ and the BIA apply the law of the circuit in which the IJ sits. See Ballesteros v. Ashcroft , 452 F.3d 1153, 1157 (10th Cir. 2006), adhered to in relevant part on reh’g , 482 F.3d 1205 (10th Cir. 2007). Th is court has not decided in a published decision whether L-O-G- ’s reasonable-likelihood standard applies to a prima facie case for relief in all motions to reopen. Ou r authoritative caselaw states that “[t]o merit reopening” th e movant’s “new facts . . . must demonstrate that ‘if proceedings before the IJ were reopened, with all the attendant delays, the new evidence offered would likely cha nge the result in the case.’” Maatougui v. Holder , 738 F.3d 1230, 1239-40 (10th Cir. 2013) (brackets omitted) (quoting Coehlo , 20 I. & N. Dec. at 473). Thus, Mr. Valle- Hernandez had reason to know that the BIA would apply that standard in deciding hi s motion to reopen—and reason to challenge that standard if he believed it was errone ous. Moreover, the BIA has not clarified when the reasonable-likelihood standard applie s, and our sister ci rcuits are not in agreement on the issue. 2 Consequently, there is all the more reason why this court

2 See, e.g. , Fonseca-Fonseca v. Garland , 76 F.4th 1176, 1178-79 (9th Cir. 2023) (clarifying confusi on in caselaw; holding reas onable-likelihood standard applies when addressing prima facie grounds for relief); Parada-Orellana v. Garland , 21 F.4th 887, 893-94 (5th Cir. 2022) ( holding agency correctly applied reasonable-likelihood standard in a ssessing prima face case for relief); Caballero-Martinez v. Barr , 920 F.3d 543, 548 (8th Cir. 2019) (construing L-O-G- as holding that Coehlo ’s likely-change-the-result standa rd applies to a motion to reopen based on new evidence where noncitizen had pr evious opportunity to litigate request for relief before the IJ); Hernandez-Perez v. Whitaker , 911 F.3d 305, 319-21 (6th Cir. (continued) Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 89 should not deprive the agency of an opportun ity to apply its expertise in considering and ruling on the issue. See Garcia-Carbajal , 625 F.3d at 1237. In sum, we decline to consider Mr. Valle-Hernandez’s first proposition because he did not exhaust it before the BIA in his motion to reopen. C. Aggregate Hardship Mr. Valle-Hernandez also argues the BI A failed to consider the aggregate hardship to his wife and children, contrary to its own caselaw. See In re Monreal-Aguinaga , 23 I. & N. Dec. 56, 64 (B.I.A. 2001) (en banc) (“[A]ll hardship factors should be considered in the a ggregate when assessing exceptional and extremely unusual hardship.”). He notes that, in denyi ng his motion to reopen, the BIA did not discuss the evid ence of hardship to his ch ildren. Mr. Valle-Hernandez therefore asserts that the BI A focused its analysis exclus ively on the new evidence of hardship to his wife. The record does not support this c ontention. The BIA concluded that Mr. Valle-Hernandez’s new evidence did not a lter its previous conc lusion that he had “not demonstrated a prima facie case of exceptional and extremely unusual hardship

2018) (appearing to equate reas onable-likelihood standard with Coehlo ’s likely-change-the-result standard); Perez v. Holder , 740 F.3d 57, 62 (1st Cir. 2014) (rejecting contention BIA confla ted the reasonable-likelihood and likely-change-the-result standards where de monstrating material ity required latter showing); Kay v. Ashcroft , 387 F.3d 664, 674 (7th Ci r. 2004) (stating that the reasonable-likelihood standard applies to a motion to reopen seeking previously unavailable relief); Sevoian v. Ashcroft , 290 F.3d 166, 173 (3d Cir. 2002) (applying reasonable-likelihood standard to prima facie case for reopening). Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 910 to his qualifying relatives .” R. at 3 (emphasis added). Citing Monreal-Aguinaga , the BIA concluded that “[t]he alleged potential economic hard ship [was] not dissimilar from the hardship families generally experience when a noncitizen is removed.” Id. (emphasis added). It also acknowledged Mr. Valle-He rnandez’s “concern for his wife and children ,” and specifically stated it had “c onsider[ed] all relevant factors in the aggregate ,” again citing Monreal-Aguinaga

. Id. (emphasis added). That the BIA did not discuss all of the hardship evidence does not demonstrate that it failed to consider it. See Maatougui , 738 F.3d at 1242 (noting the brevity of an order did not demonstrate a failure to review the facts in the case). Mr. Valle-Hernandez fails to show that, contrary to its own caselaw, the BIA did not a ssess the aggregate evidence of hardship to all of his qualifying relatives. 3
III. Conclusion We deny Mr. Valle-Herna ndez’s petition for review.

Entered for the Court

Jerome A. Holmes Chief Judge

3 Mr. Valle-Hernandez also argues that the BIA engaged in de novo fact-finding contrary to 8 C.F.R. § 1003.1(d)(3 )(i). To the extent this contention is not tethered to his unexhausted first proposi tion and we therefore may address it, we hold that he fails to suffici ently develop the argument. See Holmes v. Colo. Coal. for Homeless Long Term Disability Plan , 762 F.3d 1195, 1199 (10th Cir. 2014) (declining to consider contentions not ad equately developed in opening brief). Although Mr. Valle-Hernandez asserts that fact-finding by the BIA was “inevitabl[e],” Pet’r’s Opening Br. at 22, he fails to point to any de novo fact-finding in its decision. Appellate Case: 22-9588 Document: 010110991093 Date Filed: 01/29/2024 Page: 10