NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0485n.06

No. 22-3067

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GABINO OSORIO MEDINA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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ON PETITION FOR REVIEW OF 

AN ORDER OF THE BOARD OF 

IMMIGRATION APPEALS

OPINION

Before: MOORE, GIBBONS, and LARSEN, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Petitioner Gabino Osorio Medina seeks 

review of a final order from the Board of Immigration Appeals (“BIA”) affirming the Immigration 

Judge’s (“IJ’s”) decision that Osorio Medina was barred from withholding of removal under both 

the Immigration and Nationality Act (“INA”) and the Convention Against Torture (“CAT”) and 

denying his application for deferral of removal under the CAT. Osorio Medina asserts that the 

BIA denied him due process by (1) denying his second motion for a briefing extension; and 

(2) failing to adjudicate his motion to compel the Department of Homeland Security (“DHS”) to 

produce mental-health records. For the reasons that follow, we DENY the petition for review.

I. BACKGROUND

Osorio Medina is a native and citizen of Mexico. Administrative Record (A.R.) at 266

(Appl. for Asylum & Withholding of Removal). Osorio Medina moved to Houston, Texas, in the 

early 1970s with his parents and grandparents when he was approximately five years old. A.R. at 
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101–02 (Hr’g Tr. at 36–37). He entered the United States as a legal permanent resident. A.R. at 

102 (Hr’g Tr. at 37). In 1994, Osorio Medina was convicted of aggravated assault in Harris 

County, Texas, and was sentenced to ten years’ incarceration. A.R. at 171 (J. at 1). After his 

release, Osorio Medina married a U.S. citizen, and they had a child, who is also a U.S. citizen. 

A.R. at 424 (Marriage License); A.R. at 426 (Birth Certificate); A.R. at 472 (Reasonable Fear 

Worksheet at 3). In 2008, an IJ entered an order of removal against him, and he was subsequently 

removed to Mexico. A.R. at 289 (Order of IJ at 1); A.R. at 484 (Notice of Intent/Decision to 

Reinstate Prior Order). He remained in Mexico for four to six months before returning to the 

United States because he feared the violence in Mexico. A.R. at 124, 131 (Hr’g Tr. at 59, 66).

In 2013, Osorio Medina pleaded guilty to aggravated assault with a deadly weapon in 

Harris County, Texas, and was sentenced to five years’ incarceration. A.R. at 168 (J. at 1). After 

serving his sentence, Osorio Medina was taken into Immigration and Customs Enforcement 

(“ICE”) custody. A.R. at 113 (Hr’g Tr. at 48). He pleaded guilty to illegal reentry in violation of 

8 U.S.C. § 1326 and was sentenced to 71 months’ imprisonment. A.R. at 176, 178 (J. at 1, 3). At 

that time, DHS gave Osorio Medina notice of its intent to reinstate the prior order of removal 

entered against him in 2008. A.R. at 484 (Notice of Intent/Decision to Reinstate Prior Order). 

Osorio Medina expressed a fear of persecution or torture were he to be returned to Mexico, and an 

asylum officer found his fear to be credible, at which point the matter was referred to an IJ for 

withholding-only proceedings. A.R. at 465 (Notice of Referral to IJ at 1).

On July 9, 2021, the IJ held a merits hearing on Osorio Medina’s applications for 

withholding of removal under INA § 241(b)(3) and under the CAT, as well as deferral of removal 

under the CAT. A.R. at 51 (IJ Order at 1). The IJ found Osorio Medina’s testimony to be credible 
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but determined that his applications for withholding under both the INA and the CAT were barred 

pursuant to INA § 241(b)(3)(B)(ii) and 8 C.F.R. § 1208.16(d)(2) because his 2013 aggravated 

assault with a deadly weapon conviction constituted a particularly serious crime. A.R. at 55–58 

(IJ Order at 5–8). The IJ denied his application for deferral of removal, finding that he had “failed 

to demonstrate that it is more likely than not that he would be tortured by, or with the acquiescence 

of, Mexican government officials acting under color of law.” A.R. at 59 (IJ Order at 9).

Osorio Medina appealed the IJ’s order to the BIA. On September 15, 2021, Osorio Medina 

moved pro se for an extension of time to file his brief, which was originally due on September 22, 

2021. A.R. at 32 (Mot. to Extend Time). The BIA granted his request, but warned that “the Board 

generally does not grant more than one extension per case” and that therefore “the parties should 

assume no further extensions will be granted.” A.R. at 12 (Notice of Grant of Briefing Extension 

Request). Osorio Medina subsequently retained counsel, who filed a second briefing extension 

request on October 13, 2021, the same day that Osorio Medina’s brief was due. A.R. at 27, 29 (2d 

Briefing Extension Request at 2, 4). The motion stated that counsel “immediately became 

concerned about [Osorio Medina’s] mental health” after meeting with him. A.R. at 27 (2d Briefing 

Extension Request at 2). The BIA denied this request on the grounds that it was untimely and that 

it was a second request that did not show “extraordinary circumstances as to why a further 

extension should be granted.” A.R. at 5 (Notice of Denial of Briefing Extension Request). Osorio 

Medina also moved to compel DHS to produce any relevant evidence of his mental competency 

in its possession. A.R. at 8 (Mot. to Require DHS Production at 2). The BIA affirmed and adopted 

the IJ’s decision on all grounds. A.R. at 3 (BIA Op. at 1). In its opinion, the BIA also responded 

to Osorio Medina’s motion to compel, stating that he “participated as a witness in his proceedings 
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and was responsive to questioning” and that he had provided “[n]o evidence of mental health issues 

impacting his ability to understand and participate in the proceedings.” A.R. at 4 (BIA Op. at 2). 

Osorio Medina filed a timely petition for review in this court.

II. ANALYSIS

“[W]e review the BIA’s decision as the final agency determination.” Khalili v. Holder, 

557 F.3d 429, 435 (6th Cir. 2009). To the extent that the BIA adopted the IJ’s reasoning, we also 

review the IJ’s decision. Id. “We review de novo alleged due process violations in immigration 

proceedings.” Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007). In order to prevail 

on a due-process challenge, a petitioner “must establish both ‘error and substantial prejudice.’” Id.

(quoting Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005)). We give “substantial deference” 

to “the BIA’s interpretation of the INA and accompanying regulations,” which “will be upheld 

unless the interpretation is ‘arbitrary, capricious, or manifestly contrary to the statute.’” Khalili, 

557 F.3d at 435 (quoting Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007)).

First, Osorio Medina claims that the BIA denied him due process by denying his second 

motion for a briefing extension. Federal regulations in effect at the time of Osorio Medina’s BIA 

appeal provide that, “[the BIA], upon written motion and a maximum of one time per case, may 

extend the period for filing a brief . . . for good cause shown. If an extension is granted, it is 

granted to both parties, and neither party may request a further extension.” 8 C.F.R. § 1003.3(c)(1)

(2021) (emphasis added). The BIA practice manual further explains that, if an immigrant is 

detained, it is BIA policy “not to grant second briefing extension requests,” which are “granted 

only in rare circumstances.” BIA Practice Manual § 4.7(c)(i)(B) (Oct. 5, 2020). The manual, 

moreover, states that “[e]xtension requests must be received by the [BIA] by the brief’s original
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due date; however, requests filed the same day as a brief is due are particularly disfavored and 

granted only in the most compelling of circumstances.” Id. § 4.7(c)(ii) (emphasis added).

In denying Osorio Medina’s request, the BIA acted in compliance with federal regulations 

and its own guidelines. Because Osorio Medina had already requested one briefing extension, 

federal regulations plainly foreclosed the BIA from granting a second extension. And under the 

BIA’s guidelines, Osorio Medina’s second request was untimely, because it was filed on October 

13, 2021, weeks after the original due date of September 22, 2021. Even if we set aside the plain 

language of the BIA manual regarding timeliness, Osorio Medina would have had to show “the 

most compelling of circumstances” for the BIA to grant an extension. Id. § 4.7(c)(ii). We cannot 

say that he did.

Although Osorio Medina’s counsel expressed concern for his mental health, mental illness 

is relevant in immigration proceedings insofar as it rises to the level of incompetency and impedes 

“traditional standards of fundamental fairness.” Matter of M-A-M-, 25 I. & N. Dec. 474, 479 (BIA 

2011); see also id. at 480 (noting that “there are many types of mental illness that, even though 

serious, would not prevent a respondent from meaningfully participating in immigration 

proceedings” and that therefore “a diagnosis of mental illness does not automatically equate to a 

lack of competency”). As the BIA recognized, and our own review of the transcript of proceedings

before the IJ confirms, Osorio Medina participated fully as a witness, responded thoughtfully and 

credibly to the IJ’s questions, and reviewed exhibits. A.R. at 4 (BIA Op. at 2); A.R. at 90–157

(Hr’g Tr. at 25–92). Counsel’s concerns regarding Osorio Medina’s mental health therefore did 

not rise to the level of the most compelling of circumstances, because his mental health did not 
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impact his ability to participate meaningfully in his immigration proceedings, nor was he denied 

fundamental fairness as a result of his mental-health issues.

Next, Osorio Medina argues that the BIA denied him due process by failing to adjudicate 

his motion to compel DHS to produce mental-health records. The BIA’s opinion, however, 

addressed Osorio Medina’s motion to compel, determining that he “participated as a witness in his 

proceedings and was responsive to questioning” and that he had provided “[n]o evidence of mental 

health issues impacting his ability to understand and participate in the proceedings.” A.R. at 4 

(BIA Op. at 2). To the extent that Osorio Medina challenges the BIA’s denial of his motion to 

compel, we cannot say that the BIA violated his due-process rights. For the reasons stated above, 

there is nothing to suggest that Osorio Medina’s mental health impacted the fairness of his 

immigration proceedings, and therefore the BIA did not deny him due process by denying his 

motion to compel.

Osorio Medina’s passing reference to Matter of B-Z-R-, 28 I. & N. Dec. 563 (BIA 2022), 

in his brief does not change our analysis. The Attorney General held in Matter of B-Z-R- that 

mental-health evidence should not be categorically disregarded in evaluating whether an individual 

poses a danger to the community as part of the particularly serious crime analysis. Id. at 566. But 

beyond a cursory reference to the Attorney General’s decision, Osorio Medina has failed to explain 

why Matter of B-Z-R- merits a remand to the BIA in his case. In his brief, Osorio Medina does 

not suggest any nexus between his mental-health issues and the 2013 conviction that the IJ 

determined constituted a particularly serious crime. Osorio Medina presented no evidence of 

mental-health issues in his proceedings, nor did he indicate while testifying about the 2013 

conviction that his mental health was in any way related to the offense. A.R. at 106–13 (Hr’g Tr. 
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at 41–48). His motions before the BIA also did not mention any such connection. A.R. at 27–28 

(2d Briefing Extension Request at 2–3); A.R. at 8–9 (Mot. to Require DHS Production at 2–3). 

Matter of B-Z-R- therefore does not alter our analysis of the BIA’s resolution of his motions or 

require a remand to the BIA. We do, however, note that the government concedes that Osorio 

Medina can file a motion to reopen with the BIA or an appropriate application with DHS in the 

event that he uncovers evidence to support a claim for U.S. citizenship, a U visa, or any other type 

of immigration relief or protection. Resp’t Br. at 37.

Finally, the government asks us to decide whether Osorio Medina has waived any potential 

challenge to the BIA’s determinations that (1) he was barred from withholding of removal due to 

his conviction for a particularly serious crime; and (2) he failed to establish a clear probability of 

torture by or with the acquiescence of the Mexican government. But because Osorio Medina does 

not appeal the BIA’s decision on those grounds, we need not address these issues.

III. CONCLUSION

For the foregoing reasons we DENY the petition for review.