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 Ba rrios, a Mexican nationa l, 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 revi ew either issue Petitioner raises, we dismiss the petition for review.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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: 12 I. Background Petitioner is a native and c itizen of Mexico. She en tered the United States illegally in 1992 at the age of sixteen. Sh e has five children wh o 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 Unite d States citizen childr en, 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 he r second youngest son was twenty. The IJ denied Petitioner’s application at the end of the h earing. He first explained that only the two youngest childr en could serve as qualifying relatives for purposes of assessing the statutory hardship requirement because the “older children have turned 21 since [Petitioner] filed he r [cancellation] appli cation and no longer qualify as children as that te rm 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 ca ncellation of removal as a non-permanent resident, Petitioner needed to show, in ter 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: 23 Petitioner appealed to the BIA. She argue d 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 c onsidered 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 he r three oldest childre n could not serve as qualifying relatives because th ey 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 acknow ledged 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 m eet [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] child ren were physical ly healthy, and although she testified that her 20-yea r-old son has some learning disabilities and her 14-year-old son has some prob lems 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 testim ony “that she provides the main financial support for her sons, although her 20-year-o ld 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 woul d 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: 34 hardship to [Petitioner’s] sons.” Id. The BIA considered Petitioner’s argument that her older children are not in a position to take ca re of her younger children but explained that “it is not apparent that they co uld not be of some support.” Id. Although the BIA uphe ld the IJ’s hardship determ ination with respect to both sons, it also appeared to alternatively u phold that determina tion with respect to Petitioner’s youngest son alone. The BIA stated that Petiti oner’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 s on 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 cha llenges of adapting to life in Mexico, including any difficulty writin g in Spanish,” but concluded that Petitioner “ha[d] not pointed to evidence that these challenges rise to the le vel of exceptional and extremely unusual hardship.” Id. at 4-5. The BIA therefore agreed with the IJ “tha t such difficulty has not been shown to cons titute 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 re view, Petitioner file d a motion to reopen with the BIA and a motion to abate her case in this court pendi ng 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 ac tion 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: 45 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) (int ernal quotation marks omitted). Tw o jurisdictional principles are relevant here. First, we onl y retain jurisdiction over a challenge to a final order of removal “if . . . the alien has exhausted all ad ministrative 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”). S econd, under the mootness doctrine, we lack jurisdiction to review an is sue 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 mootne ss, the starting point for our analysis is the familiar proposition that federal cour ts are without power to d ecide questions that cannot affect the rights of litigants in the case before them.” (b rackets and internal quotation marks omitted)). “The mootness doctrine de rives 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 quotati on marks omitted). Petitioner asserts the BIA e rred by considering hardship to only one of her qualifying relatives, and she raises two distinct issues relate d 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 he r 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: 56 three oldest children were no longer qualif ying 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 di d 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 a nd extremely unusual hardship if she were removed). “It is a fundamenta l principle of administrative la w that an agen cy 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 he r appeal to the BIA, she has not exhausted her administrative remedies with respect to th is issue for the purpose s of this petition for review of her final order of removal. 3 We therefore lack juri sdiction 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. Ga rcia-Carbajal never pursued them before the BIA and so failed to exhaus t them administratively.”); Torres de la Cruz , 483 F.3d

3 Petitioner explains that she presented a similar issu e in her motion to reopen, which she filed after her petiti on for review in this case. See Pet’r’s Br. at 17-18 (describing issue as “the ag ency violated her right to due process by repeatedly delaying a final hearing in her case for so many years that her th ree oldest children had aged out by the time the [IJ] finally he ld 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 do es not rule in her favor on her motion to reopen, she may file a separate petition fo r review of that decision. Appellate Case: 20-9587 Document: 010110689996 Date Filed: 05/27/2022 Page: 67 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, Pe titioner 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 qualifyi ng relative. In response, the government argues that Petitioner “fails to acknowledge the Board’s tw o, 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 contr oversy that would justif y 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 he r 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 th e IJ’s hardship determination), with id. at 4-5 (referencing the hardship to Petitioner’s “s on” in one paragraph). The government therefore argues that Petitione r’s first issue is moot b ecause the BIA has already determined, based on its de novo review of the discretionary hard ship issue, that Petitioner failed to demonstrate the requi site hardship whether the qualifying relatives are deemed to be both of her youn gest children or just her youngest son alone. We agree with the government that Petitioner’s first i ssue 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: 78 that her second youngest son could no long er 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 le gal question and resolve it in her favor, she would not be able to obtain re lief 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 remain s unchallenged. Any decision from this court on Petitioner’s question of statutory interpretati on 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) (“Th is court would violate Article III ’s prohibition against advisory opinions were it to . . . issu e a mere statement that the [agency’s] interpretation and application of the law was incorrect wi thout ordering some related relief.”). III. Conclusion For the foregoing reasons, we di smiss 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