PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ ALONSO MARTINEZ-PEREZ, Petitioner,

v. WILLIAM BARR, Attorney General of the United States, Respondent. No. 18-9573

_________________________________ Petition for Review of an Order of the Board of Immigr ation Appeals

_________________________________ Mark R. Barr, Lichter Immigration, De nver, Colorado, appearing for Petitioner. Lynda A. Do, Office of Immigration Litiga tion (Joseph H. Hunt, Assistant Attorney General, Civil Division, and Stephen J. Flynn , Assistant Director, Office of Immigration Litigation, with her on the brief), Departme nt of Justice, Washington, District of Columbia, appearing for Respondent.

_________________________________ Before BRISCOE , EBEL , and HARTZ , Circuit Judges.

_________________________________ BRISCOE , Circuit Judge.

_________________________________ Alonso Martinez-Perez (Petitioner) has f iled a petition for review of a final order of the Board of Immigration Appeal s (BIA). The BIA di smissed Petitioner’s appeal, holding that neither the BIA nor th e Immigration Court had jurisdiction to FILED United States Court of Appeals Tenth Circuit 

### January 17, 2020 Christopher M. Wolpert Clerk of Court2 grant Petitioner’s application for cancellation of removal. Petitioner then filed the present petition for review. Exercising jurisdiction under 8 U.S.C. § 1252(a), we grant in part and deny in part the petit ion for review, vacate the order of the BIA dismissing Petitioner’s appeal, and rema nd to the BIA for fu rther proceedings consistent with this Opinion.
I Petitioner is a native and citizen of Mexi co. Certified Administrative Record (CAR) at 63. He entered the United States in 2001, without being inspected and admitted or paroled. Id. On April 9, 2009, the Departmentof Homeland Security (DHS) charged him as removable from the United States pursu ant to the Immigrati on and Nationality Act (INA) as an alien present in the United St ates without being ad mitted or paroled. Id. Immigration officials served Petitioner with a notice to appear. Id. The notice to appear did not include a date a nd time for his hearing. Id. at 408. One week later, Petitioner received notice of the date and time of his hearing in a separate document. Id. at 407. On May 5, 2010, Petitioner, through counsel, admitted the allegati ons contained in the notice to appear and conceded th e charge of removability. 1 Id. at 63. The Immigration Judge found Petitioner removable. Id. On July 7, 2011, Petitioner filed his a pplication for cancellation of removal. Id. The Attorney General may, in per tinent part, cancel removal when “removal would result in exceptional and extremely unusua l hardship to the alien’s . . . child,

1 Petitioner’s May 5, 2010 hearing was initia lly scheduled for August 19, 2009. CAR at 69. It was rescheduled after Pe titioner requested a “brief continuance.” Id.3 who is a citizen of the United States.” 8 U.S.C. § 1229b(b)(1)(D). “The term ‘child’ means an unmarried person under twenty-one years of age.” Id. § 1101(b)(1). Petitioner’s qualifying relative was his daug hter, who was sixteen years old when Petitioner filed his application for cancel lation of removal. CAR at 213. The hearing on Petitioner’s application wa s initially scheduled for July 22, 2011, but the Immigration Court subsequently resc heduled the hearing on its own motion five times. Id. at 64. The Immigration Court first re scheduled the matter to January 6, 2012; then to February 7, 2014; then to June 5, 2014; then to Ja nuary 28, 2015; and, finally, to November 29, 2019. Id. These continuances spanning a period of over eight years posed a problem for Petitioner because his daughter “w ould age out of her status as a qualifying relative on October 7, 2015, when she woul d turn twenty-one and no longer be considered a ‘child’ under . . . the Act.” Id. On May 7, 2015 , Petitioner moved to reschedule his hearing for a date before hi s daughter’s twenty-first birthday, but his motion was denied. Id. at 96–98. In denying Petitioner’s motion, the Immigration Judge stated that there was “no earlier docket availability for non- priority cases.” Id. at 96. Petitioner’s hearing was eventually reschedu led for April 5, 2017, almost six years after his application was filed. Id. at 64. At the hearing, Pe titioner acknowledged that he was no longer eligible for cancellation of re moval because he no longer had a qualifying relative—by that time, his daughter had aged out. Id. Petitioner moved for4 administrative closure 2 on “fairness and due process” groun ds because he “ha[d] been in removal proceedings for eight years and ha[d] been prepared to move forward with the individual hearing for . . . six years.” Id. at 87. He requested voluntary departure in the alternative. Id. at 89. The Immigration Court denied Petitioner’s motion for administrative closure because “there [wa]s no relief immediately available to him, either inside or outside of removal proceedings.” Id. at 65. Petitioner’s request for voluntary departure was granted. Id. at 66. Petitioner sought review by the BIA. Id. at 48. Petitioner argued that: (1) based on the Supreme Court’s reasoning in Pereira v. Sessions , 138 S. Ct. 2105 (2018), the Immigration Court lacked jurisdiction over hi s removal proceeding because he was never served with a valid notice to appear; and (2) his Fifth Amendment right to procedural due process was violated when his hearing on hi s application for cancellation of removal was repeatedly continued, deprivin g him of a qualifying relative. Id. at 23. The BIA dismissed Petitioner’s appeal. Id. at 4. First, it held that the Immigration Court had jurisdiction over Petitioner’s rem oval proceeding, notwithstanding Pereira

. Id. at 3 (citing Matter of Bermudez-Cota , 27 I. & N. Dec. 441 (BIA 2018)). The BIA, however, did not address Petitioner’s due process ar gument. Instead, it noted the age of Petitioner’s daughter at the time of the h earing before the Immigration Court and concluded that “neither the B[IA] nor the Immigration Judg e ha[d] jurisdic tion to grant

2 Administrative closure is a docket c ontrol mechanism previously used to “temporarily remove a case from an Immigr ation Judge’s active calendar or from the B[IA]’s docket.” Matter of Avetisyan , 25 I. & N. Dec. 688, 692 (BIA 2012).5 [Petitioner’s] application [for cancellation of removal] in the absenc e of . . . a qualifying relative at the time of the hearing.” Id. at 4. Petitioner timely f iled a petition for review.
II We have jurisdiction under 8 U.S.C. § 1252(a) because the BIA’s order denying relief from removal is an appealab le final order of removal. Sosa-Valenzuela v. Holder , 692 F.3d 1103, 1108 (10t h Cir. 2012). Our review is limited to constitutional claims or questions of law because eligibility for relief from removal is ordinarily an unreviewable matter of discretion under 8 U. S.C. § 1252(a)(2)(C) & (D). Id. at 1108–09. We therefore review the BIA’s legal determinations de n ovo, but we do not ordinarily review its exercise of discretion. Id. at 1109.
III Petitioner presents two arguments in hi s petition for review. First, Petitioner argues that the Immigration Court lacked jurisdiction over his removal proceedings because his notice to appear did not specify th e date and time of his initial hearing. Pet. Opening Br. at 15. Second, Petitioner argues th at “the B[IA] erred when it [found] . . . that it lacked ‘jurisdiction’ to consid er him as having a qu alifying relative for cancellation.” Id. at 27. A We first turn to Petitioner’s argument that the Immigration Court lacked jurisdiction because Petitioner’s no tice to appear did not include the date and time of the initial hearing. Title 8 C. F.R. § 1003.14 states that the Immigration Court’s “[j]urisdiction vests, and pr oceedings before an Immigrat ion Judge commence, when a6 charging document is filed w ith the Immigration Court.” In turn, a “charging document” is defined as “the written instrument which initiates a proceeding” before the Immigration Court, including a notice to appear. 8 C.F.R. § 1003.13. The statute governing removal proceedings defines a notice to appear as “w ritten notice” that specifies, among other things, “[t]he time and place at which the proceedings will be he ld.” 8 U.S.C. § 1229(a)(1)(G)(i). The implementing regulations , however, state that a notice to appear need only contain the time and place of the re moval proceedings “where practicable.” 8 C.F.R. § 1003.18(b). Relying on the Supreme Court’s holding in Pereira that “[a] putative notice to appear that fails to designate the specific time or place . . . is not a ‘notice to appear under section 1229(a),’” Petitioner argues that jurisdiction never vested with the Immigration Court in his proceeding. 138 S. Ct. at 2113–1 4. In response, Respondent relies on the BIA’s post- Pereira decision in Bermudez-Cota , which held that “a notice to appear th at does not specify the time and place of an alien’s initial removal hearing vests an Immigration J udge with jurisdicti on over the removal proceedings . . . so long as a notice of hearing specifying this information is later sent to the alien.” 27 I. & N. Dec. at 447. Responde nt also points us to rulings from other circuits which hold that Pereira does not extend beyond the narrow stop-time rule context at issue in Pereira

. This court has very recen tly rejected a similar Pereira -based argument that a notice to appear which fails to specify the time and place of an alien’s initial removal hearing deprives the Immigra tion Court of jurisdiction. See Lopez-Munoz v. Barr ,7 941 F.3d 1013, 1017 (10t h Cir. 2019). We follow the lead of Lopez-Munoz and “join the overwhelming chorus of our sister circ uits that have already rejected similar
Pereira -based challenges.” Pierre-Paul v. Barr , 930 F.3d 684, 689 (5th Cir. 2019); see Banegas Gomez v. Barr , 922 F.3d 101, 110 (2d Cir. 2019); Nkomo v. Att’y Gen. , 930 F.3d 129, 133 (3d Cir. 2019); United States v. Cortez , 930 F.3d 350, 358 (4th Cir. 2019); Hernandez-Perez v. Whitaker , 911 F.3d 305, 315–16 (6th Cir. 2018); Ortiz-Santiago v. Barr , 924 F.3d 956, 963 (7th Cir. 2019); Ali v. Barr , 924 F.3d 983, 986 (8th Cir. 2019); Karingithi v. Whitaker , 913 F.3d 1158, 1160 (9th Cir. 2019); Perez-Sanchez v. Unite d States Att’y Gen. , 935 F.3d 1148, 1154 ( 11th Cir. 2019). As an initial matter, Pereira is inapposite. As noted in Lopez-Munoz , the Supreme Court
in Pereira addressed only the “narro w question” of whether a notice to appear that omits the time or place of th e initial hearing triggers th e statutory stop-time rule for cancellation of removal. 941 F. 3d at 1018. The Supreme Court held that a notice to appear that omits the rem oval proceeding’s time or pl ace does not stop the alien’s accrual of continuous presen ce in the United States fo r purposes of cancellation of removal. Pereira , 138 S. Ct. at 2113–14. Pe titioner attempts to expand Pereira ’s holding into a jurisdictional invalidati on of any removal pr oceeding initiated by a notice to appear that lacks a time or pl ace designation.
But “ Pereira was not in any way concerned with the Immigration Court’s jurisdiction.” Karingithi , 913 F.3d at 1159. “As our sister circuits and the B[IA] have noted, it is telling that the Suprem e Court made no mention of jurisdiction in
Pereira .” Ortiz-Santiago , 924 F.3d at 963. Furthermore, “had [the Court] found a8 lack of jurisdiction [in Pereira ], it would not have remanded for further proceedings.” Id. at 964. Moreover, we agree with the several circuits that have held that the requirements relating to notices to appear are non-jurisdictiona l, claim-processing rules. See, e.g. , Cortez , 930 F.3d at 359; Pierre-Paul , 930 F.3d at 691; OrtizSantiago , 924 F.3d at 963; Perez-Sanchez , 935 F.3d at 1157. To be sure, “Congress’s language [in § 1229(a)(1) is] ‘definitional,’ and time-and-place information [is] ‘unquestionably’ part of a Notice’s ‘essential character.’” OrtizSantiago , 924 F.3d at 961 (quoting Pereira , 138 S. Ct. at 2116–17). While Petitioner’s notice to appear was defective, that did not divest the Immigration Court of jurisdiction. See id. “A failure to comply with th e statute dictating the content of a Notice to Appear is not one of those f undamental flaws that divests a tribunal of adjudicatory authority. Instead, just as with every other cl aim-processing rule, failure to comply with that rule may be gr ounds for dismissal of the case.” Id. at 963. A claim-processing rule is a rule that “seek[s] to pr omote the orderly progress of litigation by requiring that the parties ta ke certain procedural steps at certain specified times.” Henderson v. Shinseki , 562 U.S. 428, 435 (2011). A claimprocessing rule is mandatory to the extent a court must enforce the rule if a party properly raises it. Fort Bend Cty. v. Davis , 139 S. Ct. 1843, 1849 (2019). But a party’s failure to comply with a claim-processing rule even when “framed in mandatory terms” does not “deprive a c ourt of authority to hear a case.” United States v. Kwai Fun Wong , 135 S. Ct. 1625, 1632 (2015).9 Importantly, “Congress has not ‘clearly st ate[d]’ that the immigration court’s jurisdiction depends on the conten t of notices to appear.” Pierre-Paul , 930 F.3d at 692 (quoting Arbaugh v. Y & H Corp. , 546 U.S. 500, 515 (2006)). Congress has delineated the subject matter that falls with in the purview of the Immigration Court by providing that “[a]n immigration judge sh all . . . decid[e] th e inadmissibility or deportability of an alien,” but Congress has not made the Immigration Court’s jurisdiction dependent upon the content of noti ces to appear. 8 U.S.C. § 1229a(a)(1). As noted in Lopez-Munoz , § 1229(a)(1)(G)(i) says nothing about the agency’s jurisdiction; the statute merely sets out the information th at must be included in the notice to appear. 941 F.3d at 1017; see also Ortiz-Santiago , 924 F.3d at 963. Congress’s silence “h eavily weighs against treating the requirements relating to notices to appear as jurisdictional.” Pierre-Paul , 930 F.3d at 692 (citing Arbaugh , 546 U.S. at 516 (“[W]hen Congress does not rank a [requirement] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”)). Further, the fact that 8 C.F.R. § 1003.14(a) purports to describe when “jurisdiction” vests carries no weight. “While an agency may adopt rules and processes to maintain order, it cannot define the scope of its power to hear cases.” Ortiz-Santiago , 924 F.3d at 963; see Lopez-Munoz , 941 F.3d at 1015 (“The Attorney General didn’t—and couldn’t—re strict immigration judges’ jurisdiction.”). Thus, we conclude that the requirement s of a notice to appear are claim-processing rules. The Immigration Court therefore had authority to adjudicate issues pertaining to10 Petitioner’s removal even tho ugh Petitioner’s notice to app ear lacked time-and-date information.
B We now turn to Petitioner’s second argument: that “the B[IA] erred when it [found] . . . that it lacked ‘jurisdiction’ to consider [Petitioner] as having a qualifying relative for cancella tion” and dismissed Petiti oner’s appeal. Pet. Opening Br. at 27. Petitioner contends that, contrary to its ru ling, the BIA had juri sdiction and “retained the quasi-legislative power to interpret the ambiguous can cellation statute in a way that would have fixed the age of [Petitione r’s] daughter as of the date he filed his cancellation application, in light of the ‘ undue or unfair delay’ in the scheduling of his final hearing.” Id. We agree with Petitioner and remand for further proceedings. “In the judicial context . . . [w]hether the court decided correctly is a question that has different consequences from the ques tion whether it had the power to decide at all .” City of Arlington v. FCC , 569 U.S. 290, 297 (2013). “Tha t is not so for agencies charged with administering congressional statutes.” Id. For agencies, “[b]oth their power to act and how they are to act is author itatively prescribed by Congress.” Id. The Supreme Court has recognized that “ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.” Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs. , 545 U.S. 967, 980 (20 05) (emphasis added); see Hernandez-Carrera v. Carlson , 547 F.3d 1237, 1246 (10t h Cir. 2008) (“When Congre ss leaves a gap within a statute administered by an agency, Congress im pliedly entrusts the ag ency with authority11 to explain and fill in the interstices.”). “F illing these gaps . . . involves difficult policy choices that agencies are better e quipped to make than courts.” Brand X , 545 U.S. at 980. As a result, the BIA has the authority to interpret ambiguous statutory terms and give them “concrete meaning through a process of case-by-case adjudication.” INS v. Cardoza-Fonseca , 480 U.S. 421, 448 (1987). The parties do not dispute that the statute at issue here, § 1229b(b)(1)(D), is ambiguous. Compare Pet. Opening Br. at 23–24 (“the issue is ambiguous, and the B[IA] has the delegated authority to choose from a range of reas onable policy options” because “[s]ection 1229b(b)(1)(D) does not clearly” identify when th e alien’s removal must result in a hardship to a qualifying relative), with Resp. Br. at 15 (arguing for Chevron deference, noting that “[the statute] does not specify when the issue of qualifying relatives should properly be considered,” a nd listing several possible options: “at the time the alien receives a notice to appear, at the ti me the alien files the cancellation of removal application, at the time the immigration judge (IJ) adjudicates the application, or at some other time”). Section 1229b(b)(1)(D) provides , in pertinent part, that the Attorney General may cancel removal when an applicant establishes “that removal would result in exceptional and extremely unusual hardsh ip” to a relative, including a child “who is a citizen of the United States or an alien lawfu lly admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). While a “child” is defined as “an unmarried person under twenty- one years of age,” id. § 1101(b)(1), “[§] 1229b(b)(1)(D) does not directly identify the point in time wh en the alien’s remova l must result in a12 hardship to a qualifying relative.” Mendez-Garcia v. Lynch , 840 F.3d 655, 659 (9th Cir. 2016). The BIA acknowledged its authority to interpret ambiguous statutes in Matter of Isidro-Zamorano , 25 I. & N. Dec. 829 (BIA 20 12), when it discussed several factors relevant to its in terpretation and application of § 1229b(b)(1)(D). In IsidroZamorano , the alien’s son—his qualifying relativ e—was under twenty-one years of age at the time the alien filed his application fo r cancellation of removal but turned twentyone before the Immigration Court adjudicated the application . Id. at 831. The BIA ultimately concluded that the alien was inel igible for relief, re asoning that there was “no basis in law to conclude that an applicant . . . who loses his qualifying relationship before his application is even adjudicated on its merits by the Immigration Judge, nonetheless retains his eligibility for cancella tion of removal.” Id. The BIA emphasized, however, that th e alien had not “alleged any improper delay on the part of the Immigration Judge ” and that there had been “no undue or unfair delay in the course of [the] proceedings.” Id. at 832. We note, as regards the case before us, that these ar e the very types of undue de lay arguments that Petitioner has raised both before the Im migration Court and the BIA. While the BIA considered the factual context presented in Isidro-Zamorano when applying § 1229b(b)(1)(D), it held that it lacked authority to do so here. Instead of addressing Petitioner’s undue delay argumen t on the merits, the BIA held that “neither the B[IA] nor the Immigration Judge has jurisdiction to grant [Petitioner’s] application in the absence of [Petitioner] establishing that he has a qualifying relative13 at the time of the hearing.” CAR at 4 (e mphasis added). For the BIA to conclude that neither it nor the Immigration Cour t had jurisdiction to grant Petitioner’s application was error. To be sure, the BIA rule d against the alien in Isidro-Zamorano , concluding that he had failed to establish hardship to a qualifying relativ e at the time of adjudication. 25 I. & N. Dec. at 831. But contrary to Respondent’s assertion that “the B[IA] is bound by” Isidro-Zamorano , the outcome of that case does not necessarily dictate the outcome in ev ery case. Resp. Br. at 22. In Isidro-Zamorano , the BIA found that “a period of just over a year from service of the notice to appear to a determination on the merits is not an unr easonable or even unusual amount of time for the conclusion of removal proceedings.” 25 I. & N. Dec. at 832 (emphasis added). The BIA also found that the alien had not “alleged any improper delay on the part of the Immigration Judge.” Id. Thus, Isidro-Zamorano left open the possibility that, given a different set of facts, the BIA may interpret § 1229b(b)(1)(D) in a different way. See id. at 832; see also Cardoza-Fonseca , 480 U.S. at 448 (the BIA has the authority to give ambiguous statut ory terms “concrete meaning through . . . caseby-case adjudication”) (emphasis added). Despite Respondent’s contention that the BIA “specifically contemplated Petitioner’s situation” and “add ressed the same question” in Isidro-Zamorano , we disagree. Resp. Br. at 19, 23. We do not attribute the BIA’s citation to Isidro-Zamorano as evidencing specific contemplation of Petitioner’s unique circumstances. The procedural and factual background of this case differ greatly from Isidro-Zamorano

.14 First, Petitioner’s delay was substan tially longer than the alien’s in Isidro-Zamorano

. Petitioner filed his applicati on for cancellation of removal in 2011, but he did not obtain a hearing on the ma tter until approximately six years later. In IsidroZamorano , the Immigration Court adjudicated th e alien’s applicati on for cancellation within only fourteen months of the alien being served w ith a notice to appear. 25 I. & N. Dec. at 832. Moreover, before the BIA, Petitioner alleged and described what he contends was an improper delay on the part of the Immigration Court. 3 The adjudication of Petitioner’s application for cancellation of re moval was delayed because the Immigration Court, on its ow n motion, continued Petitioner’s hearing five times, allegedly due to an overcrowded docket. Give n this procedural history, which is undisputed, it was within the BIA’s jurisdiction to interpret § 1229b(b)(1)(D) in a way that would not penalize Petiti oner for the Immigra tion Court’s delay. 4 Because the BIA erred in holding that it lacked ju risdiction to grant Petitioner’s application and, in turn, failed to exercise its interp retive authority, we must remand. See Elzour

3 Respondent acknowledges that Petitioner ar gued to the BIA that “the repeated rescheduling of his hearing date s was a violation of due proce ss in that it deprived him of the opportunity to mean ingfully present his application for cancellation.” Resp. Br. at 11.

4 Petitioner has filed a supplemental authority in which an Immigration Judge reasoned that “ Isidro suggests an exceptio n where there has been an ‘undue or unfair delay’ in the course of removal proceedings.” Matter of Linares-Recendiz , No. AXXXXX0-694, at 4 (Immig. Ct. June 18, 2019). Th e Immigration Judge found that the alien’s case differed from Isidro-Zamorano because the alien’s procee dings lasted for “nearly eight years.” Id. The Immigration Judge then held that the “substantial duration of the proceedings” and “the Court’s multiple postponeme nts of [the alien’s] hearings,” rose “to the level of an ‘undue or unfair delay.’” Id. at 5. Linares-Recendizunderscores Petitioner’s argument that the BIA had juri sdiction to interpre t § 1229b(b)(1)(D) differently than it did in Isidro-Zamorano in light of the facts presented.15 v. Ashcroft , 378 F.3d 1143, 1150 (10t h Cir. 2004) (when an agency “decides a case on a ground believed by an appellate court to be wrong, the case has to be remanded to the agency”) (quoting Palavra v. INS , 287 F.3d 690, 693 (8th Cir. 2002)); see also Negusie v. Holder , 555 U.S. 511, 523 (2009) (where “the BIA has not yet exercised its Chevron discretion to interpret the statute” at issue, the proper course is to remand to the BIA to permit the agency to address the matt er in the fi rst instance). “Ordinarily, a petitioner must exhaust all administrative processes available to hear his arguments before he may seek to bring those arguments to court.” GarciaCarbajal v. Holder , 625 F.3d 1233, 1235 (10th Cir. 2 010). We have recognized that “[n]eglecting to take an appeal to the BIA constitutes a failure to exhaust administrative remedies as to any issue that could have be en raised, negating the jurisdiction necessary for subsequent judicial review.” Soberanes v. Comfort , 388 F.3d 1305, 1308–09 (10th Cir. 2004). Generally, we will only consid er arguments that a petitioner properly presents to the BIA. Sidabutar v. Gonzales , 503 F.3d 1116, 1118 (10th Cir. 2007). Petitioner asserts that his petition seeking revi ew of the BIA’s dismissal for lack of jurisdiction falls under the “ sua sponte exhaustion” rule set forth in Sidabutar

. See Pet. Opening Br. at 28. Under this rule, a petitione r may “take an argument to court that he never pursued before the BIA” if three requirements are met: “[T]he BIA must: (1) clearly identify a claim, issue, or argument not presented by the petitioner; (2) exercise its discretion to entertain that matter; and (3 ) explicitly decide that matter in a full explanatory opinion or substantive discussion.” Garcia-Carbajal , 625 F.3d at 1235. The precise argument Petitioner raises on appeal is that “[t]he B[IA] had jurisdiction to16 entertain an alternate interpretation of wh en a child’s age is to be assessed for cancellation.” Pet. Opening Br. at 22 (emp hasis added). Respondent does not address the sua sponte exhaustion factors set forth in Garcia-Carbajal or the BIA’s jurisdictional ruling which is the focus of Petitioner’s petiti on for review. Respondent’s sole response to Petitioner’s sua sponte exhaustion argument is to “[a]ssum[e] arguendo that the [statutory interpretation] argument was exhaus ted” and to address that argument on the merits by concluding the BIA “is bound by” Isidro-Zamorano and must “interpret the cancellation statute consistently regardless of th e facts underlying the case.” Resp. Br. at
22. As to the first requirement of sua sponte exhaustion, the BIA clearly identified an issue not presented by Petitioner—that is, the ag ency’s lack of jurisd iction. Following a citation to Isidro-Zamorano , the BIA concluded that neither the BIA nor the Immigration Court “has jurisdiction to grant [Petitioner’s] applicati on in the absence of . . . a qualifying relative at the time of [Petitioner’s] he aring.” CAR at 4. The BIA reached this conclusion even though neitherparty raised any argument to the BIA regarding the BIA’s jurisdiction or Isidro-Zamorano

. See id. at 15–17, 32–33. Petitione r, instead, raised an undue delay argument to the BIA, which the BIA acknowledged but failed to address. See id. at 4. Second, the BIA exercised its discretion to take up the issue of jurisdiction. Again, neither party made any argument to the BIA regarding the BIA’s jurisdiction or the application of Isidro-Zamorano . Both parties naturally assumed the BIA had17 jurisdiction to interpret its own statutes, including § 1229b(b)(1)(D). See CardozaFonseca , 480 U.S. at 448. Instead, the BI A raised the issue of its jurisdiction sua sponte

. Finally, the BIA “explicitly d ecide[d] the matter in a fu ll explanatory opinion or substantive discussion.” Garcia-Carbajal , 625 F.3d at 1235. Under this prong, “we of course defer to the agency’s determination of the depth of explanation merited by a given question.” Id. at 1240. Here, the BIA stated th at it lacked jurisdiction to grant Petitioner’s application, and it explained preci sely why that was so . According to the BIA, the Immigration Court a nd the BIA both lacked“jurisdiction to grant [Petitioner’s] application in the absence of [Petitioner] establishing that he ha[d] a qualifying relative at the time of [his] hearing.” CAR at 4 (emphasis added). Having explained why jurisdiction was lacking, there was nothing left for the BIA to discuss. Because all three requirements for sua sponte exhaustion are met, Petit ioner has exhausted his administrative remedies on this issue. C We disagree with the dissent’s exhaustion analysis in several respects. Initially, we disagree with the dissent’s characteriza tion of Petitioner’s argument on appeal, which, perhaps, explains our differen ces. According to the dissent , Petitioner is arguing that he is “entitled to relief under the cancellation statute,” and by this argument Petitioner is raising a statutory interpretation argument beforethis court that was not raised before the BIA. Dissent at 8. This description runs counter to Petitioner’s appellate briefing. The argument that Petitioner raises on appeal is not that the BIA should have interpreted the statute in a certain manner but could have exercised its jurisdic tion to make such a policy18 choice. See Pet. Opening Br. at 27 (“It’s entirely possible that the B[IA] might not want to make such a policy choice . . . But whatis unambiguously cl ear is the agency’s jurisdictional power to make such a decision. ”). That is why Petitioner argues that “the case should be remanded to the B[IA]” to le t the agency make the determination in the first instance. Id. As regards the first requirement for sua sponte exhaustion, the dissent asserts that the “least likely” thing the BI A meant by its jurisdictional sentence was that it lacked authority to interpret the can cellation statute or to apply Isidro-Zamorano to the facts of this case. Dissent at 13. The dissent states that, instead, the “mos t natural meaning” of the BIA’s jurisdictional sentence is th e BIA saying it cannot grant relief on a constitutional claim. Id. at 12. The dissent’s argument, while creative, ignores the language the BIA used. The BIA stated that it lacked “jurisdiction to grant [Petitioner’s] application [for cancellation of removal]” (a statutory reme dy) because Petitioner did not have a qualifying relative at the time of his hearing, demonstrating that the BIA believed it could not consider the proced ural history of Petitioner’s case. CAR at 4. Notably, the BIA did not state that it lacked juri sdiction to grant relief on a constitutional claim. Rather, the BIA simply looked at the age of Petitioner’s daughter at the time of his hearing, noted the undisputed fact that sh e was over the age of twenty-one, and then concluded as a result that it lacked jurisdiction to gran t Petitioner’s application for cancellation. We cannot, as the dissent conte nds, infer that the BIA was “expressing” its lack of authority to rule on constitutional challenges. Disse nt at 12. The BIA did not19 discuss, or even mention, its lack of author ity to rule on constitutional challenges in its opinion. 5 Moreover, the BIA’s jurisdictional se ntence was not merely a “[s]tray statement[].” Id. at 1240 (“Stray statements made in the course of answering the arguments the alien actually presented [to the BI A] do not, without more, indicate that the agency sought to exercise its discretion to do anything beyond what was asked of it.”);

see Dissent at 15. To the contrary, th e BIA’s jurisdictional sentence was the sole reason for its denial of Petitioner’s application. See CAR at 4 (“[N]either the B[IA] nor the Immigration [Court] has jurisdiction to gran t [Petitioner’s] application in the absence of . . . a qualifying relative at the time of [Petitioner’s] hearing. Hence , [Petitioner] is ineligible for cancellation of removal . . . [under] the Act.”) (emphasis added). Last, we disagree with the dissent’s cont ention that the BIA did not explain why jurisdiction was lacking. Dissent at 16. The BIA said that it did not have jurisdiction to grant Petitioner’s application “in the absence of [Petitioner] establishi ng that he ha[d] a qualifying relative at the time of [his] hearing. ” CAR at 4. While a “cryptic sentence” may not be explanatory or substantive, Garcia-Carbajal , 625 F.3d at 1240, the BIA in this instance made clear that it lacked jurisdiction to grant Petitioner’s application and the reason why that was so—the age of Petitioner’s daughter at the time of his hearing. The

5 The dissent also asserts that sua sponte exhaustion can only ap ply when there is “unequivocal evidence” of the BI A’s “careful consideration of th e issue.” Dissent at 5. The dissent cites no authority for this proposition, and we can find none.20 dissent’s contention that the BIA merely st ated a conclusion is therefore unavailing. Dissent at 16. IV For the foregoing reasons, we GRANT in part and DENY in part the petition for review, VACATE the order of the BIA dism issing Petitioner’s appeal, and REMAND to the BIA for further proceedings consistent with this opinion.18-9573, Martinez-Perez v. Barr HARTZ, Circuit Judge, dissenting. I respectfully dissent. I agree with almost all of the majority opinion—except for its treatment of exhaustion of administrative remedies. I cannot reconcile the opinion’s analysis of exhaustion with this court’s precedents. Petitioner complains that excessive de lays in his proceedings before the immigration judge (IJ) caused him to lose el igibility for cancellation of removal. His eligibility would have been based on hardship to hi s then-under-21 

### daughter , but she aged out during the prolonged proceedings. He argues thatthe Board of Immigration Appeals (BIA) could have construed the cancella tion-of-removal statute to afford relief in his circumstances but that the BIA refused to consider such a statutory construction because it erroneously thought it lacked juri sdiction to do so. It is undisputed that Petitioner did not ar gue to the BIA that it should construe the cancellation-of-removal statute to afford hi m relief or even argue that the BIA had jurisdiction to consider that statutory-interpretation argument. This failure to exhaust precludes relief in this court unless the “sua sp onte exhaustion” exception applies. It is undisputed that the sua spon te exception does not apply unl ess the BIA decision denying Petitioner relief (1) clearly identified the argum ent now being made, (2) “ma[de] clear its wish to entertain the argument,” and (3) explicitly decided the issue now argued by Petitioner “in a full explanatory opin ion or substant ive discussion.” Garcia-Carbajal v. Holder , 625 F.3d 1233, 1238–39 (10th Cir. 2010 ) (Gorsuch, J.). Remarkably, the majority opinion says that all three conditions are satisfied by the following sentence in2 the BIA opinion: “[N]either the [BIA] nor the [IJ] ha s jurisdiction to gr ant his application in the absence of [Petitioner] establishing that he has a qualifying relative at the time of the hearing.” Certified Admini strative Record (CAR) at 4; see Maj. Op. at 16–17. As will be explained more fully below, that singl e sentence does not satisfy any of the three requirements for the sua sponte exception to apply. But that conclusion is probably obvious at the outset. On its face, this brief conclusory senten ce could not possibly satisfy the requirement of “a full explanat ory opinion or substa ntive discussion.” GarciaCarbajal , 625 F.3d at 1239. And it requires a fertile imagina tion to read the sentence as clearly identifying the argument Petitioner makes in this court. On th e contrary, when the sentence is read in context, it clearly refers to a quite di fferent argument, one which was made by Petitioner before the BI A. I proceed to explain. I. The Exhaustion Requirement Federal law does not permit an alien to ch allenge in this court a final order of removal unless the alien has presented th e identical challenge to the BIA.
See 8 U.S.C. § 1252(d) (“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 . . . .”) “To 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.” Garcia-Carbajal , 625 F.3d at 1237. This is traditional administrative law. “A reviewin g court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the [agency] of an opportunity to co nsider the matter, make its ruling, and state3 the reasons for its action.” Unemployment Comp. Comm’n of Alaska v. Aragon , 329 U.S. 143, 155 (1946). There is good reason for requiring exhaustio n. “The purposes behind this rule are many and important: to avoid premature interfere nce with agency pro cesses, to give the agency the opportunity to correct its own errors, and to afford the parties the benefits of whatever expertise the agency may possess.” Garcia-Carbajal , 625 F.3d at 1237. The exhaustion requirement also in creases efficiency and exped ites resolution of disputes. See Woodford v. Ngo , 548 U.S. 81, 89 (2006) (“[E]xhaustion promotes efficiency. Claims generally can be reso lved much more quickly and economically in proceedings before an agency than in litigation in federal court.”). If issues not presented to an agency must be addressed during judicial revi ew of the agency decision, the court often, probably most often, would need to remand the case to the agency to develop matters that could have been addressed in the original proceedings. See Kroskob v. U.S. Dept. of Agric. , 378 F. App’x 827, 831 (10th Cir. 2010) (exhausti on “‘promotes judicial economy by avoiding needless repetition of administrative and judicial factfinding, and by perhaps avoiding the necessity of any judicial involvement at all if the parties successfully vindicate their claims befo re the agency’” (quoting Andrade v. Lauer , 729 F.2d 1475, 1484 (D.C. Cir. 1984)).4 II. The Sua Sponte Exception Nevertheless, we have recognized an exception to the exhaustion requirement when all the purposes of exhaustion have been undeniably satisfied. 1 Sometimes there is no doubt that the BIA, despite the failure of the alien to present a matter to it, has sua sponte decided “to consider the matter, make its ruling, a nd state the reasons for its action.” Aragon , 329 U.S. at 155. We have stated that to satisfy th is exception to the exhaustion requirement, “the BIA’s ruling mus t: (1) clearly identify a claim, issue, or argument not presented by the petitioner; (2 ) demonstrate that the agency chose to exercise its discretion to entertain that matter; and (3) explicitly decide that matter in a full explanatory opinion or substantive discussion.” Garcia-Carbajal , 625 F.3d at 1238– 39. “Each of these requirements is essential.” Id. at 1239. The sua sponte exception must be “construed narrowly.” Sidabutar v. Gonzales , 503 F.3d 1116, 1122 (10th Cir. 2007). After all, the exception is in play only when the alien did not present the issue to the BIA, and it is unusual for tribunals to go out of their way to address issues not presented to them ; common sense and experience tell us that it is highly unlikely that the BIA considered, mu ch less carefully consid ered, an issue that was only raised for the first time in later proceedings. This is obviously one of the reasons why we require unequivocal evidence of such careful consid eration of the issue

1 We did not need to address the possi bility of an exception to the exhaustion requirement in this case, because Petitioner has not adequately presented the issue to us. He raises it only in a footnote, see Pet. Opening Br. at 28 n.2; and this court has declared that “[a]rguments raised in a perfunctory manner, such as in a footnote, are waived.” United States v. Hardman , 297 F.3d 1116, 1131 (10th Cir. 2002) (en banc). But the panel majority has exercised its discretion to addr ess the issue, so I am responding to it.5 by the BIA. Also, the issue must be stated with precision. The ex ception is limited to those occasions when the BIA “effectively exhausts the available administrative remedies for the petitioner, so that the petitioner may later pursue those arguments in court.” Garcia-Carbajal , 625 F.3d at 1235. Since the petitioner himself “must present the same specific legal theory to the BIA before he or she may advance it in court,” id . at 1237, it is hard to see how we can say that the BIA has exhausted an issue for the petitioner if it has not precisely identified the identical lega l theory that the petitioner is advancing on review in this court. An example of proper application of the exception is Sidabutar , 503 F.3d at 1118, where the petitioner’s appeal to the BIA had presented only a challenge to the denial of his asylum claim. The BIA, however, issued a final substantive opinion not only on that claim but also on his unappealed claims addressing restriction on removal and relief under the Convention Against Torture. See id. at 1119. The BIA decision expressly addressed the unappealed cl aims, adopted the immigrati on judge’s decision on those claims, expressly concurred with the immigr ation judge’s conclusions, summarized the immigration judge’s factual findings, and ev en “provided its own independent grounds for some of the claims.” Id. We held that the purposes of exhaustion had been satisfied. See id. at 1119–22. It is also worth noting when we have he ld that the sua sponte exception does not apply. In Garcia-Carbajal the immigration judge had ruled that the petitioner was ineligible for cancellation of removal because of a prior conviction for a crime involving moral turpitude. See 625 F.3d at 1235–36; 8 U.S.C. § 1229b(b)(1)(C); id . § 1182(a)(2).6 In his appeal to the BIA the petitioner argued th at the IJ had used an improper process to analyze the question of whether he had comm itted a crime involving moral turpitude but did not argue the substantive question whether his prior state conviction had in fact been for a crime involvi ng moral turpitude. See id . at 1236. In his petition for review in this court, however, the petitioner abandoned the procedural ar gument and argued instead the substantive issue, contending that violations of the stat e statute were never crimes involving moral turpitude and that his particular offense was not such a crime. See id

. He contended that he could raise the issu e under the sua sponte exception to the exhaustion requirement. We said that the “close st thing we have to evidence that the BIA identified and addressed” the petitioner’s argu ment was the following sentence at the end of the BIA opinion: “As such, the Immigration Judge correctly determ ined that the crime involved moral turpitude. See Matter of Solon , 24 I. & N. Dec. 239 (BIA 2007), citing Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996).” Id . at 1239 (internal quotation marks omitted). We responded: “Because Solon and Fualaau spoke to when a crime is and isn’t one ‘involving moral turpitude,’ we suppose it’s possible the BIA anticipated the substantive question whether [the petitione r’s] crime qualified and decided that it did. But it’s also possible the Board didn’t.” Id . We ruled that none of the three requirements for sua sponte exhaustion was satisfied: th e issue was not clearly identified, nothing demonstrated that the BIA had exercised its discretion to cons ider the issue, and “nothing in the BIA’s opinion could be called a full e xplanatory opinion or substantive discussion deciding [the petitioner’s ] current arguments.” Id . at 1239–40.7 In the case before us, I, like the court in Garcia-Carbajal , fail to see how the BIA’s single sentence could satisfy any of the three Garcia-Carbajal requirements, much less all three. To assess the three require ments, one must begin with the procedural

context. III. Petitioner’s Proceedings Early in the proceedings before the IJ, Petitioner conceded removability but argued that he was entitled to cancellation of removal on the ground that his removal would create “exceptional and extremely unusual hardship” to his daughter, who was under 21 and a citizen of the United States. 8 U.S.C. § 1229b(b )(1)(D). Later, however, he abandoned that argument because the daug hter had turned 21 (so she was no longer a “child” under the statutory provis ion) while the proceedings befo re the IJ were pending. This abandonment was based on th e BIA precedential decision in Matter of IsidroZamorano , 25 I. & N. Dec. 829, 831 (BIA 2012), which ruled that the cancellation-ofremoval statute requires the alien to have a qualifying relative at the time the request for cancellation is adjudicated. As an altern ative ground for relief, Petitioner, although having conceded that he was not entitled to relief under the statute, argued that his case should be administratively closed (the reby ending the removal proceedings) in the interest of fairness because agency delays had caused his daughter to age out as a qualifying relative. The IJ expressed sympathy but ruled that administrative closure was inappropriate and that the IJ “lack[ed] the au thority to exercise prosecutorial discretion and close his case as an equita ble remedy.” CAR at 65.8 Petitioner filed an appeal with th e BIA. He did not suggest that Isidro-Zamorano had misinterpreted the cancellation statute, that Isidro-Zamorano implicitly reco gnized an exception in the circumstances alleged by Petitioner, or that Isidro-Zamorano should be narrowly construed so that it did not apply to his situation. He did not even cite that opinion. He raised no argument that he wa s entitled to relief under the cancellation-ofremoval statute. He argued only that he was denied due process (so his removal proceedings should be terminated) because his daughter would not ha ve aged out had his hearing not been inexcusably delayed for so many years. IV. Petitioner’s Petition to This Court Before this court, Petitioner offers a lega l theory for relief that he never presented to the BIA (or the IJ for that matter). The theo ry he now presents is that he is entitled to relief under the cancellation statute because (1) his hearing before the IJ was excessively delayed through no fault of his own; (2) if the hearing had not been excessively delayed, his cancellation-of-removal clai m would have been adjudica ted before his daughter turned 21; and (3) the cancellation-of-removal statute should be interpreted to make an alien eligible for cancellation even if his childis now older than 21, if the reason why the child has aged out is that th e adjudication by the IJ was ex cessively delayed through no fault of the alien. He points out that the BIA decision in Isidro-Zamorano noted that there had not been any “improper delay” in that case; he then makes a reasonable argument that the BIA might therefore cons ider construing the cancellation statute to reach a different conclusion when there had be en lengthy inexcusable delay. Aplt. Br. at 26 (internal quotation marks omitted).9 Petitioner does not, however, ask this court to interpret the cancellation statute in the first instance. Rather, the relief he seek s is that we remand this case to the BIA to interpret the statute. He cont ends that the BIA did not even try to interpret the statute in his favor because it erroneously thought that it lacked jurisdiction to do so. He argues that we should correctthis misconception by the BIA and then require it to do its job of statutory interpretation. This is Petitioner’s first effort to raise a statutory-interpretation issue. He does not dispute that he said nothing in his appeal to the BIA about interpreting the cancellation statute in a way that would affo rd him relief. To be sure, he argued before the BIA that the delay in the proceedings before the IJ ha d improperly caused his daughter to age out. But his argument there was an estoppel argument founded on due process, not a proposed interpretation of the relevant statute. And he was not seeking cancellation of removal, as he is now; he sought termination of the remova l procedures. To repeat what we said in Garcia-Carbajal , “To satisfy [the statutory exhaustion requireme nt], an alien must present the same specific legal theory to the BIA before he or she may advance it in court.” 625 F.3d at 1237. I should add th at I do not read the majority opinion as suggesting that Petitioner exhaus ted before the BIA his argument that he is entitled to cancellation of removal under the statute or even that the BIA has jurisdiction to consider that argument. 2

2 There is a lurking exhaustion issue that I need not address but which could be dispositive. Ordinarily, to exhaust his pres ent claim for relief, Petitioner would have had to raise with the BIA both (1 ) that it has authority to inte rpret the cancellation statute to provide him relief and (2) that the proper interpretation of the cancellation statute would10 V. Application to This Case The question before us is whether the i ssue raised by Petitioner in this court—that the BIA had jurisdiction to interpret the canc ellation-of-removal statute in a manner that would permit him to obtain cancellation—was fully addresse d by the BIA even though it had not been raised by Petitioner in proceedings before the BIA. In other words, we must decide whether Petitioner’s failure to exhaust before the agency is excused because the BIA satisfied the sua sponte exception to the exhaustion re quirement—that is, it clearly identified the issue, clearly c hose to exercise its discretion to entertain it, and explicitly decided the issue in a full explanatory opinion or substantive discussion. See id. at 1238– 39. The answer is clearly no. The only re levant discussion in the BIA decision was the following three-sentence passage: [1] In addition, [Petitioner] argues that the [IJ] denied him due process by delaying the adjudication of his ap plication for cancellation of removal until after his qualifying relative passed the age of 21, which precluded him from establishing eligibility. See Matter of Isidro-Zamorano , 25 I&N Dec. 829 (BIA 2012) (holding that an applicant for cancellation of removal whose son or daughter met the definiti on of a “child” when the application afford him relief. He presented neither issue to the BIA. The majo rity opinion decides that he did not need to raise the first issue because it was rais ed sua sponte by the BIA. But the sua sponte exception is clearly not available on the second issue. Should Petitioner be better off under the sua sponte ex ception than if he had actually preserved the first issue before the BIA but, as in factwas the case, had not preserved the second? Cf

. Garcia-Carbajal , 625 F.3d at 1236 (petitioner rais ed before the BIA the procedural question whether the IJ had engaged in the proper analysis to determine whether prior conviction was for a crime involving moral turp itude but had not rais ed the substantive question whether his prior conviction was in fact for a crime involving turpitude; substantive issue was barred from re view for failure to exhaust). That is, is it proper for us to remand to the BIA to determine an issu e that was never raised by Petitioner before the BIA?11 was filed but turned 21 before the [IJ] adjudicated the application on the merits no longer has a qualifying relative un der [§ 1229b(b)(1)(D )]. [2] However, neither the [BIA] nor the [IJ] has jurisdiction to grant his application in the absence of [Petiti oner] establishing that he has a qualifying relative at the time of the hearing. [3] Hence, [Petitioner] is ineligible for cancellation of removal because he is unable to satisfy the requirement set forth under [§ 1229b(b)(1)(D)]. CAR 3–4.

The first Garcia-Carbajal requirement is that the BIA “clearly identify [the] claim, issue, or argument” that the petitioner seeks to raise in this court. 625 F.3d at 1238–39. I am baffled that the panel majority thinks th at the BIA decision “clearly identif[ied]” the issue now being presented by Petitioner— namely, that the BIA has jurisdiction to determine whether to interpret the cancella tion-of-removal statute in a manner that would afford relief to Petitioner. 3 Nothing in the passage suggests any identification by the BIA of the issue wh ether it should recognize an exception to IsidroZamorano ’s interpretation of § 1229b (b)(1)(D) to take into a ccount egregious delays of adjudication proceedings. The majority opinion hangs its hat on th e second sentence in the above-quoted passage from the BIA opinion: “However, neith er the [BIA] nor the [IJ] has jurisdiction to grant his application in the absence of [Petitioner] establishing that he has a qualifying

3 Petitioner's opening brief st ated his position as follows: [The BIA] erred when it clai med . . . that it lacked “jur isdiction” to consider him as having a qualifying relative for cancellati on. [I]t retained th e quasi-legislative power to interpret the ambiguous cance llation statute in a wa y that would have fixed the age of [Petitioner' s] daughter as of the date he filed his cancellation application, in light of the “undue or un fair delay” in the scheduling of his final hearing. Aplt. Br. at 27.12 relative at the time of the hearing.” CAR 4. But that sentence is in itself ambiguous. It certainly does not “clearly iden tify” that the BIA cannot grant the application because it lacks jurisdiction to interpret the cancellation-of-removal statut e favorably to Petitioner. On the contrary, there is a compelling r eason to think that the sentence means something quite different. The immediately pr eceding sentence—the fi rst sentence of the quoted passage—describes an argument that Petitioner did make to the BIA. It states, “In addition, [Petitioner] argues that the [IJ] denied him due process by delaying the adjudication of his application for cance llation of removal until after his qualifying relative passed the age of 21, which precl uded him from estab lishing eligibility.” Id . at 3. The majority opinion strangely asserts that the BIA “failed to address” this due-process argument by Petitioner. Maj. Op. at 16. Bu t the BIA’s next sentence (the jurisdiction sentence) begins with the word However . That is a word that writers use when they are about to reject what has just been said. In this case, what had just been said in the previous sentence was that Pe titioner had argued he was deni ed due process. One would expect the remainder of the sentence (after the word However) to be a response to, and a rejection of, that due-process argument, not the introduction of a new topic totally unresponsive to the argument described in the prior sentence. The most natural meaning of the jurisdiction sentence is that the BI A is saying that it does not have authority (jurisdiction) to consider Petitioner’s claim that application of the cancellation statute would, in light of the excessive delay, de ny him constitutional due process. In other words, it is saying that since Petitioner has not satisfied the statutory requirements for cancellation (a point not disput ed by Petitioner before the IJ or BIA), the BIA’s hands are13 tied, even in the face of a constitutional argum ent. This proposition would be in keeping with settled BIA law. Indeed, Isidro-Zamorano itself had declared that “[t]o the extent that the [alien] raises constitu tional challenges to any statutes or regulations, we have no authority to rule on such issues.” Isidro-Zamorano , 25 I. & N. Dec. at 832. Why infer that the BIA was doing anything more than expressing that point? In contrast, it is hard to believe that th e jurisdiction sentence in the BIA opinion means that the BIA thinks it ha s no authority to examine its own pre cedent to determine whether it would permit, or even has already implicitly recognized (recall that IsidroZamorano noted there had not been an y “undue or unfair delay” in that case, 25 I. & N. Dec. at 832), the statutory right to cancella tion of removal argued by Petitioner in this court. Why would the BIA bother to address its power to do something that no one had asked it to do? Absent from the BIA’s opini on is any indication that it was responding to a possible contention that it had the authority to interpret the cancellation statute to afford Petitioner relief. And it would ha ve been quite remarkable fo r the BIA to assert that it lacks jurisdiction to engage in statutory interp retation yet not cite any authority in support of the proposition. I cannot recall a tribunal st ating that it lacks jurisdiction to construe its own precedents. Of all the possible meani ngs of the jurisdiction sentence in the BIA opinion, one of the least likely is that the BIA was pronouncing (without any citation to authority or reasoned argument) that it lacks au thority to interpret the cancellation statute,14 construe Isidro-Zamorano , or limit the scope of that opinion. 4 That likelihood is particularly slim since the issue wa s never presented to the BIA. But even if one could strain to read th e jurisdiction sentence as a pronouncement by the BIA that it lacks jurisdic tion to conduct statutory interp retation, it is far too much of a stretch for me, and for our precedents, to say that the jurisdiction sentence “clearly identif[ies]” that issue. Garcia-Carbajal , 625 F.3d at 1238. Th e majority opinion’s statement that “the BIA raised the issue of it s jurisdiction sua sponte,” Maj. Op. at 17, is a classic ipse dixit without supporti ng evidence. Of course, if the first of the requireme nts for the sua sponte exception (clearly identifying the issue not raised by the petitioner) is not satisfied, it is impossible to satisfy the other two requirements (choosing to ente rtain the issue, and fully explaining the decision resolving the issu e). But a few additional comments are in order. To satisfy the second requirement, “the BI A’s ruling must . . . demonstrate that the agency chose to exercise its discretion to entertain [the unexhausted] matter.” GarciaCarbajal , 625 F.3d at 1238–39. Given that Pe titioner had never raised any argument about how the cancellation statute should be construed, one would expect the BIA

4 Footnote 4 of the majority opinion notes that Petitioner has submitted as supplemental authority a decision by an immigr ation judge that distinguished Isidro-Zamorano on the ground that the proceedings had lasted almost eight years. The footnote says that this supplemental authority “underscores Petitioner’s argument that the BIA had jurisdiction to interpret § 1229b(b)(1)(D) di fferently than it did in Isidro-Zamorano in light of the facts presented.” Maj. Op. at 14 n.4. True. Bu t it also underscores thatthe judges in the immigration system know that they have ju risdiction to construe statutes and BIA precedents. The majority opinion apparently concludes that the BI A judge in this case is one of the rare exceptions who think otherwise. I think that conclusion is fanciful.15 opinion (if the BIA had chosen to exercise its discretion to address the matter) to explicitly identify the new issue and state that it had decided to dispose of it (perhaps to clarify matters for the future). The BIA opinion does no such thing. It cites IsidroZamorano as authority that the statutory re quirements had not been satisfied in Petitioner’s case. But there is nothing to indi cate that the BIA had decided to consider whether it could recognize a statutory excep tion to the general rule stated in that precedential opinion. The BIA op inion does not discus s statutory interpretation or when to distinguish precedent, much less the possibility of construi ng the cancellation statute in the manner that Petitioner argues in this court. To repeat the jurisdiction sentence, it states: “However, neither the [B IA] nor the [IJ] has jurisdiction to grant his application in the absence of [Petitioner] establishing that he has a qualifying relative at the time of the hearing.” CAR 4. I fail to see how the major ity opinion can treat that sentence as a clear expression by the BIA that it is considering whether it had jurisdiction to interpret the cancellation statute, an issue never raised by Petitioner. As we have previously emphasized, “Str ay statements made in the course of answering the arguments the alien actually pr esented do not, without more, indicate that the agency sought to exercise its discretion to do anyt hing beyond what was asked of it.” Garcia-Carbajal , 625 F.3d at 1240 (emphasis omitted). I agree with the majority opinion that the jurisdiction sentence is not a stray st atement. It appears immediately following a sentence noting Petitioner’s due-process argument. It is clearly addressing, and disposing of, that argument, stating that it does not have jurisdiction (authority ) to consider that constitutional issue. But if, as the majority op inion insists, we are to read the jurisdiction16 sentence as addressing an issue that had no t been raised by Petitio ner and had not been described or even sketched in the BIA opinion, then th e jurisdiction sentence would undoubtedly fit the notion of a stray senten ce—one disconnected from any discussion before or after. To read the sentence as the majority opinion does, pregnant with meaning on a subject that neither the partie s nor the agency had conceived, could well serve as Exhibit 1 of the dangers of excessive imagination in construi ng stray statements. If the jurisdiction sentence in the BIA opinion can fill the bill for the second requirement of the exhaustion exception, we should make things easy for everyone and just eliminate that requirement. Finally, the third requirement—that th e BIA opinion “explicitly decide [the] matter in a full explanatory opin ion or substantive discussion.” Id. The majority opinion is satisfied with the bald ju risdiction sentence in the BIA opi nion: “[N]either the [BIA] nor the [IJ] has jurisdiction to grant his application in the absence of [Petitioner] establishing that he has a qualifying relative at the time of the hearing.” CAR at 4. But it is a distortion of the English language to say that this unel aborated sentence “explicitly decide[d]” that it lacked ju risdiction to interpret the cancellation statute “in a full explanatory opinion or substantive discussion.” Garcia-Carbajal, 625 F.3d at 1239. The majority opinion states that the BIA op inion “explained precisely why” it lacked jurisdiction. Op. at 17. 5 Really? At best, the BIA states its conclusion. It utterly fails to

5 I quote the full discussion in the majority opinion: Here, the BIA stated that it lacked juri sdiction to grant Petitioner’s application, and it explained precisely why that was so. According to the BIA, the17 explain why the BIA lacked jurisdiction to engage in statutory interpretation. See Garcia-Carbajal , 625 F.3d at 1239 (“When ever an agency states a conclusion . . . it impliedly rejects any number of unmade potential arguments. But that doesn’t mean the agency noticed those arguments, let alone cons idered and ruled on them.”) Ruling that the third requirement was not met in Garcia-Carbajal , we said that “one cryptic sentence followed by two citations to pr ior authority cannot be fairly characterized explanatory or substantive.” Id. at 1240. Here, the sentence relie d on by the panel majority is not followed by even one citati on to authority that might clarify why the BIA lacks jurisdiction to conduct traditional statutory construction. This court has recognized an exception to the exhaustion requirement in our review of decisions by the BIA. But the exception is to be “construed narrowly.” Sidabutar , 503 F.3d at 1122. Our precedent sets forth three re quirements that must be satisfied for us to excuse exhaustion. All mustbe clearly satisfied. If anything is clear in this case, it is that not one of the requirements is satisfied. It is worth recalling the stat ement by the BIA considered by Garcia-Carbajal in declining to apply the sua sp onte exception to exhaustion. The petitioner argued in this court that his criminal conviction was not for a crime involving moral turpitude. The

Immigration Court and the BIA both lacked“jurisdiction to grant [Petitioner's] application in the absence of [Petitioner] establishing that he ha[d] a qualifying relative at the time of [his] hearing. ” CAR at 4 (emphasis added). Having explained why jurisdiction was lacking, there was nothing left for the BIA to discuss. Maj. Op. at 17. Apparently the majority op inion thinks that saying that jurisdiction is lacking in the absence of a qualifying re lative is a meaningful explanation.18 BIA had written, “As such, the Immigration Ju dge correctly determin ed that the crime involved moral turpitude.” 625 F.3d at 12 39 (internal quotation marks omitted). We held that none of the three requirements for applying the sua sponte exception had been satisfied. The sentence in th e BIA opinion relied on by the majority opinion has an even weaker claim to satisfy the exception. I cannot join in the implicit overruling of our precedent.