NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0374n.06

Nos. 20-3318/4039/24-3108/3706

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARIO TAPIA BRAVO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General, 

Respondent.

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ON PETITIONS FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS

ORDER

Before: BATCHELDER, WHITE, and STRANCH, Circuit Judges.

Mario Tapia Bravo petitions this court for review of an order of the Board of Immigration 

Appeals (BIA) denying his motion to reopen his removal proceedings. This case has been referred 

to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. 

Fed. R. App. P. 34(a). For the reasons below, we vacate in part and remand his petition for 

review. 

I.

During the course of his removal proceedings, Bravo’s army-enlisted daughter (and a 

naturalized citizen) filed an I-130 visa petition on his behalf, and Bravo filed the supplementary 

documents related thereto. Bravo states, and the government does not contest, that his I-130 visa 

petition has since been approved, but it was not considered below. 

An approved I-130 visa petition satisfies the requirement that an immigrant visa be 

immediately available when the alien files his or her application, making the alien eligible for 
Nos. 20-3318/4039/24-3108/3706, Tapia Bravo v. Garland

adjustment of status. INS v. Miranda, 459 U.S. 14, 15 (1982) (per curiam); 8 U.S.C. § 1255(a). 

We are mindful of the jurisdictional balance that we must strike in choosing whether to review a 

motion to reopen. Hernandez-Perez v. Whitaker, 911 F.3d 305, 315 (6th Cir. 2018). But we also 

recognize the “safety valve” role that this court holds, ensuring “that the BIA lives by its rules and 

at least considers new information.” Id. (citing Pilica v. Ashcroft, 388 F.3d 941, 948 (6th Cir. 

2004). Therefore, this matter is remanded with instructions to consider Bravo’s I-130 visa petition 

and its effect on his removal proceedings. 

Moreover, we are not convinced by the government’s position that Bravo has forfeited 

claims related to his approved I-130 visa petition because of a supposed failure to exhaust his 

claims. “Under the plain language of [8 U.S.C.] § 1252(d)(1), a noncitizen must exhaust all 

administrative remedies available to the alien as of right.” Santos-Zacaria v. Garland, 598 U.S. 

411, 424 (2023) (internal quotation marks omitted). However, discretionary remedies such as 

“[c]ancellation of removal, voluntary departure, and adjustment of status” are not available as of 

right. Id. at 426. So, the exhaustion requirement of § 1252(d)(1) does not apply here. “[B]ecause 

§ 1251(d)(1) requires only exhaustion of remedies available as of right, . . . a noncitizen need not 

exhaust discretionary remedies.” Id. at 425 (cleaned up). 

II.

For the reasons explained, we vacate in part and remand Bravo’s petition for review for 

further proceedings consistent with this order to consider the effect of Bravo’s I-130 visa petition 

on his removal proceedings. 

ENTERED BY ORDER OF THE COURT

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Kelly L. Stephens, Clerk