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 review of a decision by the Board of 

Immigration Appeals (BIA) denying his motion 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 and citizen of Mexico. In 2018, the 

Department of Homeland Security issued a notice to appear alleging that he was 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive 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

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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 relief, 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 exceptional and extremely unusual hardship 

to his qualifying relatives—at that time, his four United-States-citizen sons—see

§ 1229b(b)(1)(D). 

The BIA dismissed Mr. Valle-Hernandez’s appeal, concluding as follows: 

We acknowledge the aggregate hardship 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 appeal that persuade us to reverse the 

Immigration Judge’s decision with respect to his failure to satisfy the 

hardship standard for cancellation of removal. Thus, we need not reach the 

Immigration Judge’s finding that [Mr. Valle-Hernandez] did not 

demonstrate good moral character for purposes of cancellation of removal. 

R. at 89. Mr. Valle-Hernandez did not petition for review of the BIA’s dismissal of 

his appeal. 

 Subsequent to his hearing before the IJ, Ana Martinez—who is 

Mr. Valle-Hernandez’s long-term partner and 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 with the BIA seeking further 

consideration of his application for cancellation of removal. He noted that 

Ms. Martinez was a newly qualifying relative, in addition to his children, for 

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purposes of cancellation of removal, and he submitted evidence of hardship to 

Ms. Martinez that would result from his removal. 

 The BIA denied the motion, concluding 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 supporting 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) (internal 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 rational explanation, inexplicably departs 

from established policies, is devoid of any reasoning, or contains only summary or 

conclusory statements.” Id. (quotation omitted). The BIA 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-Hernandez sought reopening and a remand 

to the IJ to reevaluate his eligibility for cancellation of removal under § 1229b(b)(1). 

Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), this court lacks jurisdiction to review “any 

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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 show 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 statutory-construction 

argument, or (2) by disputing the application of a legal standard to undisputed or 

established facts.” Id. (citation and internal quotation marks omitted). 

In his petition for review, Mr. Valle-Hernandez 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 the proceedings. He contends that this 

requirement has no statutory basis in, and conflicts with, the requirements of 8 U.S.C. 

§ 1229a(c)(7), which governs motions to reopen, and also conflicts with BIA 

caselaw. Because his argument involves statutory construction and a challenge to the 

legal standard the BIA applied in denying his motion to reopen, 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 the 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 hardship to his wife and children, contrary to its own 

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caselaw. This, too, raises a reviewable question of law. See id. at 1184. We 

therefore conclude that we have jurisdiction 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. § 1252(d)(1), “[a] court may review a final 

order of removal only if . . . the alien has exhausted all administrative remedies 

available to the alien as of right.”1

 “It is a fundamental principle 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 through 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 omitted). Rather, “[t]o satisfy 

§ 1252(d)(1), an alien must present the same specific legal theory to the BIA before 

he or she may advance it in court.” Id.

In his motion to reopen, Mr. Valle-Hernandez 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. 

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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 defining the three grounds on which the BIA can reasonably deny 

a motion to reopen, including the failure to establish a prima facie case for the relief 

sought. R. at 15-16. Mr. Valle-Hernandez stated that, although Coelho was decided 

before Congress enacted § 1229a(c)(7), “these three grounds for denial remain the 

relevant considerations.” Id. He did not assert any conflict 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 particular the requirement to demonstrate a 

prima facie case for relief—that conflict with the subsequently 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 was 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 filed with the BIA. Rather, he acknowledged 

that Coelho’s three grounds for denial of such a motion—including demonstrating a 

prima facie case for relief—“remain the relevant considerations.” R. at 16. 

Mr. Valle-Hernandez also contends that the standard the BIA applied in 

denying his motion conflicts with the BIA’s own caselaw. He asserts that the BIA 

erred by requiring him “to conclusively establish” that the new facts he alleged 

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would change the outcome in his case. Pet’r’s Opening Br. at 8 (citing R. at 4). The 

BIA did not use this terminology. It concluded that “the evidence supporting the 

motion is not likely to change the outcome of the proceedings.” R. at 4 (emphasis 

added). Mr. Valle-Hernandez argues 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 standards set forth in 

Abudu and Coelho are no longer applicable to such motions. 

Mr. Valle-Hernandez further contends that 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 coupled 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 marks 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 reasonable likelihood that the statutory 

requirements for the relief sought have been satisfied, and 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 asserts in his reply brief that, while he knew he 

was required to establish a prima facie case for relief, he neither knew nor should 

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have known that the BIA would require him to demonstrate that his new evidence 

was likely to change the outcome of his 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). This 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. Our authoritative caselaw states 

that “[t]o merit reopening” the 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 change 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 his motion to reopen—and reason to challenge 

that standard if he believed it was erroneous. Moreover, the BIA has not clarified 

when the reasonable-likelihood standard applies, and our sister circuits 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 confusion in caselaw; holding reasonable-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 assessing 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 standard applies to a motion to reopen 

based on new evidence where noncitizen had previous opportunity to litigate request 

for relief before the IJ); Hernandez-Perez v. Whitaker, 911 F.3d 305, 319-21 (6th Cir. 

(continued) 

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should not deprive the agency of an opportunity 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 BIA 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 aggregate when assessing exceptional and 

extremely unusual hardship.”). He notes that, in denying his motion to reopen, the 

BIA did not discuss the evidence of hardship to his children. Mr. Valle-Hernandez 

therefore asserts that the BIA focused its analysis exclusively on the new evidence of 

hardship to his wife. 

The record does not support this contention. The BIA concluded that 

Mr. Valle-Hernandez’s new evidence did not alter its previous conclusion that he had 

“not demonstrated a prima facie case of exceptional and extremely unusual hardship 

2018) (appearing to equate reasonable-likelihood standard with Coehlo’s 

likely-change-the-result standard); Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014) 

(rejecting contention BIA conflated the reasonable-likelihood and 

likely-change-the-result standards where demonstrating materiality required latter 

showing); Kay v. Ashcroft, 387 F.3d 664, 674 (7th Cir. 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). 

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to his qualifying relatives.” R. at 3 (emphasis added). Citing Monreal-Aguinaga, the 

BIA concluded that “[t]he alleged potential economic hardship [was] not dissimilar 

from the hardship families generally experience when a noncitizen is removed.” Id.

(emphasis added). It also acknowledged Mr. Valle-Hernandez’s “concern for his wife 

and children,” and specifically stated it had “consider[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 assess the aggregate evidence 

of hardship to all of his qualifying relatives.3

III. Conclusion 

 We deny Mr. Valle-Hernandez’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 proposition and we therefore may address it, we 

hold that he fails to sufficiently 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 adequately 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. 

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