UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GERARDO H. MUNOZ-MORALES, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 21-9539 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McHUGH , and ROSSMAN , Circuit Judges.

________________ _________________ Gerardo H. Muñoz-Morales 1 petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing his a ppeal of an Immigration Judge’s (IJ) denial of his application for cancellation of removal. We dismiss in part and deny in part his petition for review.

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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.

1 Although the Petitioner’s second last name is sometimes spelled “Moralez” in the record, we use “Morales” in this orde r and judgment, consis tent with the vast majority of his filings and ot her documents in the record. FILED United States Court of Appeals Tenth Circuit 

### February 22, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 12 I. Background Muñoz-Morales is a nativ e and citizen of Mexico who was admitted to the United States as a lawful permanent reside nt in May 1989. In August 2020, the Department of Homeland Security issued a Notice to Appear alleging he was removable as an alien convict ed of two or more offenses for which the aggregate sentences to confinement were five years or more. Afte r admitting the allegations and conceding he was removabl e as charged, Muñoz-Morales filed an application for cancellation of removal under 8 U.S.C. § 1229b(a). A. The IJ’s Decision After a hearing at which Muñoz-Morales te stified, the IJ deni ed his application for cancellation of removal. The IJ found th at he satisfied the statutory requirements under § 1229b(a)(1)-(3). But after review ing the record as a whole and weighing Muñoz-Morales’s positive and negative factors, the IJ denied relief as a matter of discretion. The IJ noted the following positive fact ors in Muñoz-Morales’s case: his long residency in the United States; his family ti es in the United Stat es, including his three United-States-citizen adult children; his ow nership of property in the United States; his employment history and his employer’s favorable comments about his work; his payment of income taxes; his religious pr actice; and his value and service to his community. The IJ took note of Muñoz-Mor ales’s and his daught er’s testimony, as well as letters from his da ughter, one of his sons, a nd friends and neighbors. Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 23 On the negative side of the scale, the IJ described Muñoz-Morales’s criminal history, including five arrest s for driving under the influe nce of alcohol (DUI), which resulted in four DUI convictions in 2006, 2009, 2010, and 2017. 2 In addition, Muñoz-Morales had been apprehended by the Border Patrol in 2004 for transporting illegal aliens, although he was not charge d with any crime. In 2005, he was convicted of criminal mischief related to an altercation with his then-wife. In response to a question from the IJ, Muñoz-Mor ales acknowledged that he had driven while intoxicated on more occasions than the five times that resulte d in arrests. He estimated he had done so on thirty occas ions while living in the United States. Pointing to that admission, his multiple DUI arrests during an eleven-year period, and the minimal evidence he provided regardi ng completion of rehabilitation programs, the IJ found that the evidence did not de monstrate that Muñoz-Morales had been genuinely rehabilitated. The IJ ultimately found that Muñoz-Mor ales’s positive equities were not so significant as to counterba lance his serious and danger ous criminal conduct, and therefore concluded he failed to show that he warranted a favorable exercise of discretion. B. The BIA’s Decision The BIA affirmed the IJ’s decision and dismissed Muñoz-Morales’s appeal. It expressly stated that it considered the totality of his positive equities and

2 Muñoz-Morales’s first DUI a rrest in 2001 resulted in pretrial diversion rather than a conviction. Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 34 humanitarian factors present in the case. The BIA pointed to his long residence in this country, his three adult children in the United States, his employment history and filing of tax returns, and his religious participation. The BIA also “recognize[d] that, as a result of his disability, 3 his age, and other factors, it will be particularly difficult for him to return to Mexico and re-establish himself in that country,” stating that “[t]here can be little disput e that his removal will resu lt in a significant level of hardship to himself and his family.” R. at 3. But the BIA said it could not ignore hi s criminal history, including his multiple DUI convictions, which “are se rious adverse factors.” Id. at 4 (citing the Attorney General’s decision in Matter of Castillo-Perez , 27 I. & N. Dec. 664, 670 (A.G. 2019) (stating that “an alien with multiple DUI convictions would likely be denied cancellation of removal as a purely discre tionary matter” because “[m]ultiple DUI convictions are a serious blemish on a pers on’s record and reflect disregard for the safety of others and for the law”)). The BIA also noted Mu ñoz-Morales’s candid admission he had driven while intoxicated on approximately thirty occasions. While it recognized that rehabilitation is not a requirement for relief, the BIA was “not persuaded that he is rehabilitated.” Id. It acknowledged and considered Muñoz-Morales’s “claims th at, since March 2017, he has abstained from driving under the influence of alcohol, complete d court-ordered cour ses, and attended

3 Muñoz-Morales testified that he is disabled because he is missing two fingers on his left hand. See R. at 148. He further testified that he also ha s no right hand. See id. at 149. Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 45 Alcoholics Anonymous meetings ,” and his presentation of letters of support attesting to his rehabilitation. Id. But the BIA determined th at, “[w]hile his efforts to rehabilitate himself during the past few ye ars are laudable, they do not overcome his extensive decade-long hist ory of drunk driving.” Id. “[U]pon consideration of the totality of the record and a balancing of the appropriate factors present in [Muñoz-Mor ales’s] case,” the BIA held that the IJ “properly denied [his] application for cancellation of removal as a matter of discretion . . . based upon the evidence and testimony.” Id. It determined that, “[e]ven considering [his] recent rehabilit ation efforts, the positive equities and humanitarian factors remain significantly offset by his se rious criminal history.” Id. II. Discussion The Attorney General may cancel th e removal of a noncitizen permanent resident who establishes that he “(1) has been an alien la wfully admitted for permanent residence for not less than 5 y ears, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a). In addition to these statutory requirements, the noncitizen must also demonstrate that he warrants a favorable exercise of discretion. See Patel v. Garland , 142 S. Ct. 1614, 1619 (2022) (“Because relief from removal is always a matter of grace, even an eligible noncitizen must persuade the immigration judg e that he merits a favorable exercise of discretion.” (internal quotation marks omitted)). The BIA a ffirmed the IJ’s denial of Muñoz-Morales’s application for cancellation of removal as a matter of discretion. Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 56 A. Jurisdictional Limitations The government argues this court lacks jurisdiction over all of the issues raised in Muñoz-Morales’s petition for review. Our jurisdiction depends on whether he raises a constitutional claim or a question of law and whether he exhausted those issues before the BIA. 1. Cancellation of Removal Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to review “any judgment regarding the granting of relief under section . . . 1229b.” This provision denies us jurisdiction to review the discretionary aspects of a BIA decision concerning cancellation of removal, includi ng any underlying factua l determinations. See Galeano-Romero v. Barr , 968 F.3d 1176, 1181 (10th Cir. 2020). But under another provision, we retain jurisdiction to review constitu tional claims and questions of law regarding cancellation of removal. See id. at 1182; see also § 1252(a)(2)(B)(i) (precluding judicial review “except as provided in subparagraph (D)”); § 1252(a)(2)(D) (“Nothing in subparagraph (B) . . . which limits or eliminates judicial review, shall be c onstrued as precluding review of constitutional claims or questions of law raised upon a petition for re view filed with an appropriate court of appeals in accordance w ith this section.”). We therefor e lack jurisdiction in this case unless Muñoz-Morales raises a constitu tional claim or a question of law. 2. Failure to Exhaust We also lack jurisdiction to review issues that M uñoz-Morales did not exhaust before the BIA. We can review a final order of removal only if “the alien has Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 67 exhausted all administra tive remedies available to the alien as of right .” 8 U.S.C. § 1252(d)(1). Available administrative reme dies include motions to reconsider or reopen filed with the BIA. See Sidabutar v. Gonzales , 503 F.3d 1116, 1122 (10th Cir. 2007) (c oncluding that challenges to “t he BIA’s allegedly de novo [fact]finding” were unexhauste d because they “should have been brought before the BIA in the first inst ance through a motion to reconsider or reopen”). The exhaustion requirement is jurisdictional. See Akinwunmi v. INS , 194 F.3d 1340, 13 41 (10th Cir. 1999). The exhaustion rule “give[s] the agen cy the opportunity to correct its own errors.” Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Cir. 2010). Therefore, “[i]t is not enou gh 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 sh e may advance it in court.” Id. Thus, Muñoz-Morales “may not add new theories seriatim as the litig ation progresses from the agency into the courts.” Id. at 1238. We will address our jurisdiction as to each of the issues Muñoz-Morales asserts in his petition for review. B. Issues Raised in Petition for Review Muñoz-Morales characterizes all of the issues he raises as constitutional claims or questions of law. But “arguing that the eviden ce was incorrectly weighed, Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 78 insufficiently considered, or supports a different outcome” does not raise a constitutional claim or question of law. Kechkar v. Gonzales , 500 F.3d 1080, 1084 (10th Cir. 2007). And a cont ention that the agency faile d to explicitly consider certain evidence is properly viewed as a s ubstantial-evidence argum ent, rather than a constitutional claim. See Alzainati v. Holder , 568 F.3d 844, 851-52 (10th Cir. 2009). Consequently, however characterized, we lack jurisdiction to review Muñoz-Morelos’s challenges to the evidentiary support for the agency ’s factual findings and the BIA’s weighing of the evid ence, as well as his arguments that the BIA failed to consider certain evidence. Muñoz-Morales nonetheless purports to raise the following issues: the BIA erred by (1) reviewing the IJ’s factual fi ndings de novo, (2) departing from its own precedential decisions in exer cising its discretion, and (3) failing to provide adequate reasoning for its conclusion that the positive factors in his case did not outweigh his serious criminal history. He also argues his detenti on during removal proceedings deprived him of due process because he di d not have a full and fair opportunity to gather evidence regarding his rehabilitation. 1. Incorrect Standard of Review Muñoz-Morales first argues that the BI A erred by reviewing the IJ’s factual findings de novo, in contra vention of 8 C.F.R. § 1003. 1(d)(3)(i). Ordinarily, pursuant to § 1252(a)(2)(D), “we have ju risdiction over a claim that the Board applied the incorrect standard of review to an IJ’s factual determinations.” Galeano-Romero , 968 F.3d at 1184. But we lack ju risdiction to review the issue in Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 89 this case because Muñoz-Morales did not exhaust it by raisi ng it in a motion to reconsider or reopen f iled with the BIA. See Sidabutar , 503 F.3d at 1122. 2. Misapplication of BIA Authority Muñoz-Morales argues the BIA departed from its own precedential decisions in exercising its discretion. We may review as a ques tion of law whether the BIA departed from its own adopted legal standards. See Galeano-Romero , 968 F.3d at 1184. We review such a contention de novo. See Alzainati , 568 F.3d at 851. But Muñoz-Morales exhausted onl y one of his contentions. Muñoz-Morales argued in his BIA app eal that the IJ erred by failing to properly apply the BIA’s balancing test in concluding that he did not merit a favorable exercise of discreti on. R. at 18-19. This wa s so, he argued, because the positive factors in his case fa r outweighed the negatives. Id. at 20. Muñoz-Morales did not argue—as he does now —that BIA precedent preclude d the agency’s reliance on his admission that he drove while in toxicated on 30 occasi ons, or that the evidence failed to demonstrat e his lack of good moral ch aracter under the standards in Matter of Castillo-Perez . Because he did not raise these contentions in his BIA appeal or in a motion to reconsider or re open, we lack jurisdiction to review them. Muñoz-Morales did argue in his BIA appeal that, under the BIA’s precedent, rehabilitation is not a prerequisite to a favorable exercise of discretion. See R. at 23 (citing Matter of Edwards , 20 I. & N. Dec. 191, 196 (B.I.A. 1990) (holding rehabilitation is “a factor to be considered in the exercise of discretion” but is not “an absolute prerequisite to a favorable exercise of discre tion in every case involving an Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 910 alien with a criminal record”)). But this claim fail s because he does not demonstrate that the BIA departed from this standa rd. The BIA explicitly recognized that rehabilitation is not required. See R. at 4. It then f ound that “[e]ven considering [Muñoz-Morales’s] recent rehabilitation ef forts, the positive equities and humanitarian factors remain significantly offset by his se rious criminal history.” Id. We lack jurisdiction to re view Muñoz-Morales’s ultimat e contention that the BIA should have assigned more weight to his positive factors. See Kechkar , 500 F.3d at 1084. 3. Inadequate Reasoning Muñoz-Morales argues the BIA’s deci sion “failed to include sufficient [rationale] supporting the conclusion that a dverse factors of the case outweighed the positive equities, or why the positive equ ities were not enou gh to outweigh any adverse factor on the record.” Pet’r’s Br. at 26. He contends the BI A’s decision is so lacking in analysis that it amount s to an abuse of discretion. See, e.g. , Maatougui v. Holder , 738 F.3d 1230, 1242-43 (10t h Cir. 2013) (holding th e BIA does not abuse its discretion if its decision is sufficient fo r meaningful appellate review). But Muñoz-Morales does not explain how this c ontention raises eith er a constitutional claim or a question of law subj ect to our jurisdiction. We need not decide that issue because we lack jurisdiction for a separate reason: Muño z-Morales failed to exhaust this issue in a motion to reconsid er or reopen filed with the BIA. Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 1011 4. Due Process Finally, Muñoz-Morales contends he was deprived of his right to due process because his detention prevented him from havi ng a full and fair opportunity to gather evidence regarding his rehabilitation. Such a claim is reviewable under § 1252(a)(2)(D). See Abiodun v. Gonzales , 461 F.3d 1210, 1217 (10th Cir. 2006) (distinguishing the petitioner’s detention-ba sed due process claim from a reviewable “claim that his detention prevented him from obtaining favorab le evidence for the proceedings”). Muñoz-Morales asserts that he raised this due proce ss claim in his BIA appeal, but the BIA failed to rule on it. He ar gued in his appeal th at his testimony and a completion certificate from a rehabilitation program clearly established his rehabilitation. R. at 21-22. He then added: Respondent was detained th rough the proceedings; he relied on others to put his packet together. If he had been out of detention, he would have had more time and ability to gather more co mplete evidence. Given the realities of his detention, the Immigration Judg e should not have been so quick to dismiss his Certificate of Completion as insufficient. Id. at 22. Muñoz-Morales did not explicitly assert a due process claim in his BIA appeal, nor does the BIA appear to have re cognized that he did so. But giving him the benefit of the doubt as to exhaustion, we hold that his due process claim fails on the merits. A noncitizen “in removal proceedings is entitled only to . . . procedural due process, which provides the opportunity to be heard at a meaningful time and in a meaningful manner.” Alzainati , 568 F.3d at 851 (internal quotation marks omitted). Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 1112 “To prevail on a due process claim, an a lien must establish not only error, but prejudice.” Id. We review due process claims de novo. See Witjaksono v. Holder , 573 F.3d 968, 973-74 (10th Cir. 2009). Muñoz-Morales fails to demonstrate prejudice by showing a reasonable likeli hood that the outcome of his removal proceeding would have been diff erent but for his detention. See Molina v. Holder , 763 F.3d 1259, 1263 (10th Cir. 2014). The IJ gave Muñoz-Morales twenty-six days to submit all of his evidence supporting his application for cancellation of removal, including detailed affidavits from himself and all other witnesses. See R. at 173. Muñoz-Morales submitted seventy-five pages of evidence, incl uding one completion certificate from a rehabilitation program, id. at 286. He also submitted letters from family members and others addressing their knowledge of his rehabilita tion efforts. In his own affidavit, he stated that he had stopped drinking in 2017 but he did not mention any rehabilitation programming. Id. at 214. Muñoz-Morales’s counsel did not request a continuance from the IJ to collect more evidence regard ing his rehabilitation—based upon his detention or otherwise. Nor did Muñoz-Morales testify that he had additional documentation to offer regarding his rehabilitation efforts. In sum, Muñoz-Morales has never indicated—before the IJ, the BIA, or this court—what additional evidence he could have submitted we re he not detained. He therefore fails to demonstrate that he suffered any pr ejudice as a result of his detention. Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 1213 III. Conclusion We dismiss Muñoz-Morales’s petition fo r review to the extent we lack jurisdiction to consider the issues he raises. We ot herwise deny his petition for review. Entered for the Court
Gregory A. Phillips Circuit Judge Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 13