UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JUANA COSTILLA BARRIOS, 

 Petitioner, 

v. 

MERRICK B. GARLAND, 

United States Attorney General, 

 Respondent. 

No. 20-9587 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, HOLMES and ROSSMAN, Circuit Judges. 

_________________________________ 

Petitioner Juana Costilla Barrios, a Mexican national, seeks review of a 

Board of Immigration Appeals (BIA) decision affirming the denial of her application 

for cancellation of removal. Because we lack jurisdiction to review either issue 

Petitioner raises, we dismiss the petition for review. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 27, 2022

Christopher M. Wolpert 

Clerk of Court

Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 1
2 

I. Background 

Petitioner is a native and citizen of Mexico. She entered the United States 

illegally in 1992 at the age of sixteen. She has five children who were born here. 

In 2013, the Department of Homeland Security charged Petitioner with being 

removable. She conceded removability (as a noncitizen who was present without 

being admitted or paroled) but applied for cancellation of removal under 8 U.S.C. 

§ 1229b(b)(1).1

 She asserted her removal to Mexico would cause exceptional and 

extremely unusual hardship to her five United States citizen children, all of whom, as 

of 2013, were under the age of twenty-one. 

In 2018, an immigration judge (IJ) held a hearing on her application. By that 

time, only two of Petitioner’s children were under the age of twenty-one—her 

youngest son was fourteen and her second youngest son was twenty. 

The IJ denied Petitioner’s application at the end of the hearing. He first 

explained that only the two youngest children could serve as qualifying relatives for 

purposes of assessing the statutory hardship requirement because the “older children 

have turned 21 since [Petitioner] filed her [cancellation] application and no longer 

qualify as children as that term is defined in the Act.” R. at 81-82. He then 

concluded Petitioner had not met her burden of showing that her removal would 

cause exceptional and extremely unusual hardship to her two youngest sons. 

1

 To be eligible for cancellation of removal as a non-permanent resident, 

Petitioner needed to show, inter alia, that her “removal would result in exceptional 

and extremely unusual hardship” to a spouse, parent, or child, who is a United States 

citizen. 8 U.S.C. § 1229b(b)(1)(D). 

Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 2
3 

Petitioner appealed to the BIA. She argued the IJ erred in making the hardship 

determination with respect to her two youngest sons. In doing so, she contended that 

her second youngest son should still be considered a qualifying relative for purposes 

of her case on appeal even though he had, by that time, turned twenty-one. She did 

not challenge the IJ’s conclusion that her three oldest children could not serve as 

qualifying relatives because they had turned twenty-one prior to the hearing. 

In a three-member panel decision, the BIA upheld the IJ’s hardship 

determination. Although the BIA acknowledged the IJ made some “mistaken 

statements,” it conducted a de novo review and concluded the statements would not 

change the result of the case. Id. at 3. The BIA held that the “[IJ] properly 

determined that the evidence did not meet [Petitioner’s] burden to establish 

exceptional and extremely unusual hardship to her children if she departs the United 

States.” Id. at 4. The BIA further explained: 

The [IJ] found that [Petitioner’s] children were physically healthy, and 

although she testified that her 20-year-old son has some learning disabilities 

and her 14-year-old son has some problems with his feet, the [IJ] properly 

determined that these factors were not of such a nature as to result in 

exceptional and extremely unusual hardship to her children upon [her] 

departure from the United States. 

Id. The BIA also recounted Petitioner’s testimony “that she provides the main financial 

support for her sons, although her 20-year-old son was employed and her 14-year-old son 

receives financial support from his father and the state.” Id. And then the BIA explained 

that “[t]he [IJ] recognized that there would be a loss of the same level of financial 

support, but not of such a nature as to result in exceptional and extremely unusual 

Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 3
4 

hardship to [Petitioner’s] sons.” Id. The BIA considered Petitioner’s argument that her 

older children are not in a position to take care of her younger children but explained that 

“it is not apparent that they could not be of some support.” Id. 

Although the BIA upheld the IJ’s hardship determination with respect to both 

sons, it also appeared to alternatively uphold that determination with respect to 

Petitioner’s youngest son alone. The BIA stated that Petitioner’s sole qualifying relative 

was her fourteen-year-old son, noting that Petitioner’s second youngest son was no 

longer a qualifying relative because he was now over the age of twenty-one. The BIA 

recognized Petitioner’s argument that her second youngest son should continue to be a 

qualifying relative but explained that she “ha[d] not cited to any law or precedent that 

mandates such a result.” Id. at 4 n.1. It then acknowledged the stress to the youngest son 

resulting from Petitioner’s removal “and the challenges of adapting to life in Mexico, 

including any difficulty writing in Spanish,” but concluded that Petitioner “ha[d] not 

pointed to evidence that these challenges rise to the level of exceptional and extremely 

unusual hardship.” Id. at 4-5. The BIA therefore agreed with the IJ “that such difficulty 

has not been shown to constitute exceptional and extremely unusual hardship.” Id. at 5. 

Petitioner filed a timely petition for review of the BIA’s decision.2

 

2

 Shortly after filing her petition for review, Petitioner filed a motion to reopen 

with the BIA and a motion to abate her case in this court pending the BIA’s decision 

on the motion to reopen. We granted the motion and abated the case on October 16, 

2020. But when the BIA had taken no action on the motion to reopen after nine 

months, we lifted the abatement on July 27, 2021. 

Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 4
5 

II. Discussion 

“We begin by determining whether we have jurisdiction to review the issues 

raised by petitioner in [her] petition.” Galeano-Romero v. Barr, 968 F.3d 1176, 1181 

(10th Cir. 2020) (internal quotation marks omitted). Two jurisdictional principles are 

relevant here. First, we only retain jurisdiction over a challenge to a final order of 

removal “if . . . the alien has exhausted all administrative remedies available . . . as of 

right.” 8 U.S.C. § 1252(d)(1); see also Torres de la Cruz v. Maurer, 483 F.3d 1013, 

1017 (10th Cir. 2007) (explaining that “we have jurisdiction only over those claims 

that were presented to the BIA”). Second, under the mootness doctrine, we lack 

jurisdiction to review an issue if the resolution of that issue will not change the 

outcome of the case. See Ghailani v. Sessions, 859 F.3d 1295, 1300 (10th Cir. 2017) 

(“In cases involving mootness, the starting point for our analysis is the familiar 

proposition that federal courts are without power to decide questions that cannot 

affect the rights of litigants in the case before them.” (brackets and internal quotation 

marks omitted)). “The mootness doctrine derives from the requirement of Art. III of 

the Constitution under which the exercise of judicial power depends upon the 

existence of a case or controversy.” Id. (internal quotation marks omitted). 

Petitioner asserts the BIA erred by considering hardship to only one of her 

qualifying relatives, and she raises two distinct issues related to this assertion. She 

first challenges the BIA’s conclusion that her second youngest son was no longer a 

qualifying relative because he turned twenty-one during her agency appeal. Pet’r’s 

Br. at 5-6. She next argues the BIA erred in affirming the IJ’s conclusion that her 

Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 5
6 

three oldest children were no longer qualifying relatives. She contends the BIA 

“should have—on account of egregious agency delay—considered hardship to those 

of [her] children who were under twenty-one on the date she filed her application for 

cancellation of removal.” Id. at 32 (boldface omitted). 

We start with the second issue. Petitioner did not raise this issue in her appeal to 

the BIA. See generally R. at 9-22 (arguing that the IJ erred in determining that her two 

youngest sons would not suffer exceptional and extremely unusual hardship if she were 

removed). “It is a fundamental principle of administrative law that an agency must have 

the opportunity to rule on a challenger’s arguments before the challenger may bring those 

arguments to court.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). 

Because Petitioner did not raise this issue in her appeal to the BIA, she has not exhausted 

her administrative remedies with respect to this issue for the purposes of this petition for 

review of her final order of removal.3

 We therefore lack jurisdiction to consider it. See 

§ 1252(d)(1); see also Garcia-Carbajal, 625 F.3d at 1236 (“We lack authority to 

entertain these arguments . . . because Mr. Garcia-Carbajal never pursued them before the 

BIA and so failed to exhaust them administratively.”); Torres de la Cruz, 483 F.3d 

3

 Petitioner explains that she presented a similar issue in her motion to reopen, 

which she filed after her petition for review in this case. See Pet’r’s Br. at 17-18 

(describing issue as “the agency violated her right to due process by repeatedly 

delaying a final hearing in her case for so many years that her three oldest children 

had aged out by the time the [IJ] finally held a hearing on the merits of her case in 

2018”). But she concedes that her “prior counsel did not explicitly raise [that issue] 

to the Board” in her appeal to the BIA. Id. at 18. If the BIA does not rule in her 

favor on her motion to reopen, she may file a separate petition for review of that 

decision. 

Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 6
7 

at 1018 (“The record makes clear that this issue was never presented to the BIA, which 

divests us of jurisdiction.”). 

As for the first issue, Petitioner asserts that the BIA “declined to consider” her 

older son as a qualifying relative, Pet’r’s Br. at 17, and erred as a matter of law in 

concluding he could no longer be a qualifying relative. In response, the government 

argues that Petitioner “fails to acknowledge the Board’s two, alternative analyses of 

the hardship element,” and, as a result, has “failed to demonstrate how her legal 

challenge is tied to a live case or controversy that would justify an exercise of the 

Court’s jurisdiction.” Resp. Br. at 20. Much of the BIA’s decision is spent 

discussing and upholding the IJ’s determination that Petitioner failed to show 

exceptional and unusual hardship to both her sons, not just her youngest son. 

Compare R. at 4 (referring to her “children” and “sons” in three paragraphs and 

discussing both her “20-year-old son” and her “14-year-old son” in two paragraphs in 

the course of agreeing with the IJ’s hardship determination), with id. at 4-5 

(referencing the hardship to Petitioner’s “son” in one paragraph). The government 

therefore argues that Petitioner’s first issue is moot because the BIA has already 

determined, based on its de novo review of the discretionary hardship issue, that 

Petitioner failed to demonstrate the requisite hardship whether the qualifying 

relatives are deemed to be both of her youngest children or just her youngest son 

alone. 

We agree with the government that Petitioner’s first issue is moot. Petitioner’s 

legal challenge relates only to the portion of the BIA’s decision where it determined 

Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 7
8 

that her second youngest son could no longer be a qualifying relative and where it 

discussed the hardship of her removal solely as it related to her youngest son. Thus, 

even if we were to review Petitioner’s legal question and resolve it in her favor, she 

would not be able to obtain relief because the BIA upheld the IJ’s determination that 

she did not establish the requisite hardship after considering the articulated hardship 

to both her sons—a determination that remains unchallenged. Any decision from this 

court on Petitioner’s question of statutory interpretation about whether her second 

youngest son could still be a qualifying relative would therefore be an impermissible 

advisory opinion. See Pub. Serv. Co. of Colo. v. U.S. EPA, 225 F.3d 1144, 1148 n.4 

(10th Cir. 2000) (“This court would violate Article III’s prohibition against advisory 

opinions were it to . . . issue a mere statement that the [agency’s] interpretation and 

application of the law was incorrect without ordering some related relief.”). 

III. Conclusion 

For the foregoing reasons, we dismiss the petition for review. 

Entered for the Court 

Jerome A. Holmes 

Circuit Judge 

Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 8