NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 15a0785n.06

No. 15-3045

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REYES VELAZQUEZ-ARZATE,

Petitioner,

v.

LORETTA E. LYNCH, United States

Attorney General,

Respondent.

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ON PETITION FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS

BEFORE: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.

PER CURIAM. Reyes Velazquez-Arzate petitions for review of an order of the Board of 

Immigration Appeals (BIA) dismissing his appeal from the denial of his application for 

cancellation of removal. We deny the petition for review.

Velazquez-Arzate, a native and citizen of Mexico, most recently entered the United 

States in February 1996 without inspection. In June 2009, the Department of Homeland Security 

detained Velazquez-Arzate and served him with a notice to appear in removal proceedings, 

charging him with removability as an alien present in the United States without being admitted 

or paroled and as an immigrant not in possession of a valid entry document. See 8 U.S.C. 

§ 1182(a)(6)(A)(i), (a)(7)(A)(i)(I). Velazquez-Arzate appeared before an immigration judge (IJ) 

and conceded removability. Velazquez-Arzate subsequently applied for cancellation of removal 

 



The Honorable Joseph M. Hood, United States District Judge for the Eastern District of 

Kentucky, sitting by designation. 
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on the basis that his removal would result in exceptional and extremely unusual hardship to his 

United States citizen children. See 8 U.S.C. § 1229b(b)(1). After a hearing, the IJ denied 

Velazquez-Arzate’s application for cancellation of removal, concluding that he had failed to 

demonstrate both good moral character and the requisite hardship to his children. On appeal, the 

BIA agreed with the IJ that Velazquez-Arzate had failed to meet his burden of proving eligibility 

for cancellation of removal. This timely petition for review followed. 

To be eligible for cancellation of removal, Velazquez-Arzate must demonstrate that: 

(1) he has been physically present in the United States for a continuous ten-year period; (2) he 

“has been a person of good moral character during such period”; (3) he has not been convicted of 

certain offenses; and (4) his “removal would result in exceptional and extremely unusual 

hardship to [his] spouse, parent, or child, who is a citizen of the United States or an alien 

lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1). As the respondent’s 

motion to dismiss pointed out, this court lacks jurisdiction to review the denial of an application 

for cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). We retain jurisdiction, however, to 

consider “constitutional claims or questions of law” that have been administratively exhausted. 

8 U.S.C. § 1252(a)(2)(D), (d)(1); see also Montanez-Gonzalez v. Holder, 780 F.3d 720, 722 (6th 

Cir. 2015). 

Velazquez-Arzate first contends that the BIA failed to follow its own precedent requiring 

consideration of the hardship factors in the aggregate. According to Velazquez-Arzate, the BIA 

failed to consider (1) his older daughter’s anxiety and (2) the violent conditions in Mexico. In 

his brief to the BIA, Velazquez-Arzate asserted that the IJ failed to view his older daughter’s 

physical ailments in the aggregate; Velazquez-Arzate did not mention his daughter’s anxiety or 

conditions in Mexico. Even if Velazquez-Arzate had exhausted this claim before the BIA, we 
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lack jurisdiction to review it. Velazquez-Arzate’s argument that the agency failed to consider 

certain facts specific to his case amounts to an objection “to the agency’s weighing of the facts 

[that] is not within our jurisdiction to review.” Ettienne v. Holder, 659 F.3d 513, 519 (6th Cir. 

2011). In any event, both the IJ and the BIA addressed the daughter’s anxiety, and given that 

Velazquez-Arzate’s children would remain in the United States, the conditions in Mexico had

limited, if any, relevance to whether Velazquez-Arzate’s removal would result in exceptional and 

extremely unusual hardship to his children.

With respect to the determination that he had failed to demonstrate good moral character, 

Velazquez-Arzate asserts that his due-process rights were violated when the IJ did not allow him 

to clarify his admission to being aware that there were mistakes on his tax returns at the time that 

he filed them. “Although an alien’s due process challenge generally does not require exhaustion 

. . . , the alien must raise correctable procedural errors to the BIA.” Sterkaj v. Gonzales, 

439 F.3d 273, 279 (6th Cir. 2006). Velazquez-Arzate did not raise this alleged error in his 

appeal to the BIA. In any event, the IJ only stopped Velazquez-Arzate’s attorney from asking 

the same question again; the IJ did not prohibit the attorney from asking him questions about his 

tax filings. Any lack of explanation resulted from Velazquez-Arzate’s decision to remain silent 

on the issue when cross-examined before the IJ. 

Velazquez-Arzate also argues that the BIA misapplied or ignored its own precedent in 

determining that he had failed to demonstrate good moral character due to his admitted 

misrepresentations in his tax filings. According to Velazquez-Arzate, pursuant to Matter of 

Locicero, 11 I. & N. Dec. 805 (BIA 1966), the agency was required to make findings as to three 

elements: (1) he grossly underreported income (2) with the intent to avoid payment (3) of a 

substantial sum of taxes. Locicero cannot be read as establishing such a requirement. See 
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Sumbundu v. Holder, 602 F.3d 47, 56 (2d Cir. 2010) (“[T]hough the BIA did find that the 

respondent in Locicero misstated a ‘substantial sum,’ nothing in the decision suggests that this 

was a requirement for moral character determinations related to inaccurate tax returns.”). 

“[T]his court lacks jurisdiction over claims that can be evaluated only by engaging in head-tohead comparisons between the facts of the petitioner’s case and those of precedential decisions.” 

Ettienne, 659 F.3d at 518. Velazquez-Arzate essentially asks us to compare the facts of his case 

with those of Locicero.

For the foregoing reasons, we GRANT the respondent’s motion to dismiss in part and 

DENY Velazquez-Arzate’s petition for review.