NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-2595

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JOSE CRUZ GALARZA-ALVARADO,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA

 

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On Petition for Review of a Decision of

the Board of Immigration Appeals

(Agency No. A202-191-639)

Immigration Judge: Adam Panopoulos

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Submitted under Third Circuit L.A.R. 34.1(a)

July 11, 2024

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Before: SHWARTZ, PHIPPS, and MONTGOMERY-REEVES, Circuit Judges.

(Filed: July 12, 2024)

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OPINION

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SHWARTZ, Circuit Judge.

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
2

Petitioner Jose Cruz Galarza-Alvarado seeks review of the order denying his 

application for an adjustment of status. For the reasons set forth herein, we will deny the 

petition. 

I

Galarza-Alvarado is a native and citizen of Mexico who was admitted to the 

United States in 2014 on a non-immigrant visitor’s visa. In 2023, the Department of 

Homeland Security (“DHS”) detained Galarza-Alvarado after he was charged with 

possession of a controlled substance and use/possession with intent to use drug 

paraphernalia. Galarza-Alvarado was charged as removable for overstaying his visa, 

appeared before an Immigration Judge (“IJ”), conceded removability, denied the 

allegations related to his criminal charges, and pursued his then-pending adjustment 

application before the IJ. Although Galarza-Alvarado was statutorily eligible for an 

adjustment of status, the IJ balanced the equities, including his criminal charges and 

testimony about them, and concluded that the circumstances did not warrant discretionary 

relief.

1

1

In reaching this conclusion, the IJ found Galarza-Alvarado’s testimony about the 

circumstances of his arrest not credible because it was vague, implausible, designed to 

hide or minimize his culpability, and resembled a “cover story.” AR 68. The IJ then 

considered his positive and negative equities and determined that, on balance, he did not 

warrant a favorable exercise of discretion. As to the positive equities, the IJ 

acknowledged (1) his family ties to several lawful permanent residents and United States 

citizens, including his wife, and (2) the support he provides to his wife, who suffers from 

mental illness. The IJ observed, however, that Galarza-Alvarado did not present 

evidence regarding the hardship his family members would face upon his removal, noting 
3

Galarza-Alvarado appealed, the BIA reviewed de novo and affirmed, and this 

petition for review followed.2

II3

The Attorney General or his designee, Doyduk v. Att’y Gen., 66 F.4th 132, 136 

n.3 (3d Cir. 2023) (citing 8 C.F.R. § 1003.10(a)), may, “in his discretion, and under such 

specifically the support his wife has received from other family members since his 

detention and the absence of documentation about her mental illness. As to the negative 

equities, the IJ considered Galarza-Alvarado’s (1) arrest, the seriousness of the pending 

criminal charges, and lack of credible testimony about the same; (2) unauthorized work 

history; (3) lack of property ties in the United States; and (4) failure to file income taxes.

2 The BIA relied on the IJ’s fact finding and reviewed the legal question—i.e., 

whether to exercise its discretion to grant an adjustment of status—de novo. In 

conducting its own balancing of the equities, the BIA acknowledged that GalarzaAlvarado had positive factors in his favor—including that (1) he has family members

who are lawful permanent residents and a wife who is a United States citizen; and (2) his 

wife suffers from mental health issues— but those positive factors were outweighed by 

the negative factors, including his (1) arrest and pending criminal charges, and the 

circumstances surrounding such arrest; (2) failure to file income taxes; (3) lack of 

property ties; and (4) unauthorized employment in the United States. 

The BIA acknowledged that the IJ may have erred in viewing Galarza-Alvarado’s

pending criminal charges as a “significant negative adverse factor,” but held that such 

“error is not a basis for sustaining the appeal,” AR 4, because (1) “[i]t is well settled that 

an arrest report may be relied on as a negative factor,” AR 4 (citing Doyduk v. Att’y 

Gen., 66 F.4th 132, 137 (3d Cir. 2023) (citing Matter of Arreguin, 21 I. & N. Dec. 38, 42-

43 (BIA 1995))); Matter of Thomas, 21 I. & N. Dec. 2 (BIA 1995)); and (2) based on the 

BIA’s de novo review it “conclu[ded] that [Galarza-Alvarado] does not warrant 

adjustment of status as a matter of discretion,” AR 4. Lastly, the BIA held that GalarzaAlvarado failed to establish a due process violation. 

3 The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have 

jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review questions of law de novo, Myrie v. 

Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017), but otherwise lack jurisdiction to review 

“any judgment regarding the granting of relief” of status adjustments, 8 U.S.C. § 

1252(a)(2)(B)(i), including “review of factual findings that underlie a denial of relief,” 

Doyduk, 66 F.4th at 135 n.1 (quoting Patel v. Garland, 596 U.S. 328, 331 (2022)). Here, 
4

regulations[,]” adjust the status of a noncitizen. 8 U.S.C. § 1255(a).4 “‘Neither the 

language of the statute nor the relevant regulations establish criteria by which to weigh 

applications for discretionary relief,’ nor do they specify the types of evidence an IJ may 

consider.” Doyduk, 66 F.4th at 136 (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 

1994)). The BIA and our precedent, however, provide guidance on both. More 

specifically, a court can consider particular adverse factors, such as “the existence of a 

criminal record and, [] its nature, recency, and seriousness, and the presence of other 

evidence indicative of a [petitioner’s] bad character or undesirability as a permanent 

resident of this country,” Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978), and

favorable factors, such as “family ties within the United States . . ., evidence of hardship 

to the [petitioner and his] family if [removal] occurs, . . . a history of employment, [and] 

the existence of property or business ties,” id.; cf. Doyduk, 66 F.4th at 137 (noting that 

under Matter of Arreguin, 21 I. & N. Dec. 38, 42-43 (BIA 1995), immigration judges

we are asked to review whether the District Court erred as a matter of law in its 

consideration of Petitioner’s arrest, which is an issue over which we have jurisdiction. 

The Supreme Court’s recent decision in Wilkinson v. Garland, 601 U.S. 209 (2024) does 

not change this conclusion. 

4 Section 1255(a) of Title 8 of the United States Code provides that the Attorney 

General has the discretion to adjust the status of a noncitizen if he has applied for such 

relief and “is eligible to receive an immigrant visa and is admissible to the United States 

for permanent residence and . . . an immigrant visa is immediately available to him at the 

time his application is filed.” 
5

may consider, but should be hesitant to credit with “substantial weight” uncorroborated 

arrest reports in an equitable balancing analysis). 

Here, Galarza-Alvarado argues that the BIA erred in affirming the IJ’s ruling

because the IJ improperly weighed his drug arrest. This argument, however, incorrectly 

describes what the BIA did. Although the BIA affirmed the IJ’s removal ultimate ruling

denying relief, it did so based on its own de novo review.

5

 Because the BIA issued a 

reasoned decision, we review its decision, not the IJ’s. Iredia v. Att’y Gen. of U.S., 25 

F.4th 193, 194 n.1 (3d Cir. 2022) (citation omitted). 

A review of the BIA’s decision shows that, in weighing the equities, it examined 

the criminal complaint against Galarza-Alvarado in a manner consistent with our 

precedent about arrest reports, see AR 4 (considering the arrest, its surrounding 

circumstances, and the pending criminal charges—brought pursuant to a sworn summons 

and complaint—as one of many negative factors); see also supra n.2. The BIA did not 

consider the charges in isolation, but rather also considered Petitioner’s description of the 

events and the IJ’s fact-finding regarding Petitioner’s credibility. Furthermore, and 

importantly, unlike an arrest report, the contents of the criminal complaint were sworn to 

under oath, and therefore in this instance is entitled to more weight. Cf. Doyduk, 66 F.4th 

5

Indeed, as noted above, see supra n.2, the BIA acknowledged the IJ’s error in 

affording significant weight to the pending criminal charges, and concluded that “[i]n 

light of [its] de novo review and conclusion that [Galarza-Alvarado] does not warrant 

adjustment of status as a matter of discretion,” such “error [wa]s not a basis for sustaining 

the appeal.” AR 4. 
6

at 137. Thus, the BIA committed no legal error by considering the pending criminal 

charges.

6

III

For these reasons, we will deny the petition for review.

6 Petitioner’s argument that the IJ (and in turn, the BIA in affirming the IJ) 

violated his due process rights by improperly weighing his arrest fails for the same

reasons. Cf. Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 249 (3d Cir. 2020) 

(holding a petitioner “may not dress up a claim with legal clothing to invoke this Court’s 

jurisdiction”) (internal quotation marks omitted)). Additionally, Petitioner’s argument 

that the IJ erred in applying a hardship standard, lacks merit because (1) the IJ’s decision 

is not the one we are tasked to review given that the BIA did not adopt it, Iredia, 25 F.4th 

at 194 n.1; and (2) the BIA properly weighed the equities without applying such a 

hardship standard and so the IJ’s purported use of such a standard did not impact the 

outcome here.