United States Court of Appeals

for the Fifth Circuit

No. 21-60391

Jose Luis Medina Carreon, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A200 224 818

Before Wiener, Higginson, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

Jose Luis Medina Carreon, a native and citizen of Mexico, petitions 

for review of a decision by the Board of Immigration Appeals (BIA) 

dismissing his appeal from the denial of his application for cancellation of 

removal. He challenges the BIA decision on grounds that: (1) it was ultra 

vires because the order was signed by a temporary BIA member whose term 

had expired; (2) the BIA erred in finding that Medina Carreon lacked good 

moral character; and (3) the BIA erred in affirming the denial of voluntary 

departure. We lack jurisdiction to consider some of Medina Carreon’s 

United States Court of Appeals

Fifth Circuit

FILED

June 15, 2023

Lyle W. Cayce

Clerk

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arguments, and where we have jurisdiction, his arguments fail. Accordingly, 

we dismiss his petition in part and deny it in part. 

I.

Medina Carreon entered the United States in 1996 without being 

admitted or paroled. In 2011, while serving a sentence for three misdemeanor 

convictions arising out of an illegal cockfighting ring,1 he was served with a 

notice to appear for removal proceedings. At a hearing in March 2013, 

Medina Carreon conceded removability and filed an application for 

cancellation of removal. At a September 2018 hearing concerning his 

application, he testified that he did not know cockfighting was illegal in 

Texas, as it commonly occurs in Mexico.

Following that hearing, the Immigration Judge (IJ) determined that

Medina Carreon was ineligible for cancellation of removal because he lacked 

good moral character under 8 U.S.C. § 1101(f)’s “catchall” provision.

2 The 

IJ weighed facts bearing on Medina Carreon’s character as either positive or 

negative. As positives, the IJ considered Medina Carreon’s family, his long 

residence in the United States, his “enduring marriage,” his employment 

record, his assets, and character testimony that he was “a hard, good worker, 

and a good family man and neighbor.” As negatives, the IJ considered 

1 Medina Carreon was arrested while attending a cockfight in Grayson County, 

Texas. Subsequently, he was convicted of attempt to commit cruelty to livestock animals, 

keeping a gambling place, and gambling promotion. For these crimes, he was sentenced to 

180 days in prison but only served five months.

2 Section 1101(f) provides a multi-part definition for whether an alien may be 

regarded as a person of good moral character. The definition first prohibits such a finding 

for aliens falling into certain per se classes. See 8 U.S.C. § 1101(f)(1)–(9). It ends with a 

“catchall” provision, which states that “[t]he fact that any person is not within any of the 

foregoing classes shall not preclude a finding that for other reasons such person is or was 

not of good moral character.” Id. § 1101(f).

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Medina Carreon’s three cockfighting-related convictions, another 

conviction for driving on a suspended license, and the fact that he “hired 

workers unlawfully in the United States and paid his workers in cash, leaving 

it up to them to report their income to the IRS.” Because the “negative 

factors far outweigh[ed] the positive factors,” the IJ concluded “in its 

discretion” that Medina Carreon lacked good moral character and denied his 

application for cancellation of removal. “For the same reasons,” the IJ sua 

sponte denied Medina Carreon the privilege of voluntary departure “as a 

matter of . . . discretion.”3

The BIA agreed with the IJ and dismissed Medina Carreon’s appeal. 

Medina Carreon timely petitioned our court for review.

II.

Medina Carreon first asserts that the BIA’s ruling was an invalid ultra 

vires act because two of the three BIA members who ruled on his case were 

temporary members whose initial terms had expired. The Government 

responds that (A) we lack jurisdiction to consider this claim because Medina 

Carreon did not exhaust it before the BIA, (B) such challenges may not be 

raised in a petition for review, and (C) the claim fails on its merits. We 

consider each of the Government’s arguments in turn.

A.

As a preliminary matter, the Government contends that we lack 

jurisdiction to consider this claim because Medina Carreon failed to raise it

before the BIA. Our court considered a similar claim in Ayala Chapa v. 

Garland and held that the exhaustion requirement in 8 U.S.C. § 1252(d)(1) 

applies to such claims. 60 F.4th 901, 905 (5th Cir. 2023). Because Ayala 

3 The IJ noted that Medina Carreon did not request voluntary departure.

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Chapa “never presented his ultra vires claim to the BIA, even though he 

could have raised it in his motion to reconsider,” we concluded that he had 

failed to exhaust the claim and we lacked jurisdiction to consider it. Id. 

Ayala Chapa, however, has been abrogated by the Supreme Court’s 

intervening decision in Santos-Zacaria v. Garland. 143 S. Ct. 1103 (2023). 

Santos-Zacaria clarified that an alien need not file a motion for 

reconsideration to exhaust arguments that arise as the result of a BIA opinion. 

Id. at 1116–17 (“[Section] 1252(d)(1) does not require that [an alien] seek 

reconsideration from the Board[.]”). Therefore, Medina Carreon’s failure 

to press this claim in a motion for reconsideration before the BIA is no bar to 

our considering it now.

B.

Immigration regulations permit the Director of the Executive Office 

for Immigration Review (the Director) to “designate . . . temporary Board 

members for terms not to exceed six months.” 8 C.F.R. § 1003.1(a)(4). 

Medina Carreon contends that the two temporary BIA members who ruled 

in his case did so ultra vires because their six-month terms had expired and 

“had not been renewed in accordance with [this] regulation.”

The Government responds that its adherence to “regulations 

governing internal agency procedures” cannot be challenged in a petition for 

review before our court. After all, petitions for review may challenge only 

“matters on which the validity of the final order is contingent.” INS v. 

Chadha, 462 U.S. 919, 938 (1983) (quotations and citation omitted). Because 

the regulation at issue “merely concerns the Board’s organization, 

management, and internal procedures,” the Government submits that 

Medina Carreon’s removal order “is not fairly contingent on the operation 

of the regulation” such that the regulation “is not within the scope of [our] 

review[.]”

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But Medina Carreon does not merely challenge the Government’s 

compliance with a regulation. Rather, he contends that non-compliance 

rendered the BIA’s decision in his case ultra vires. “[A]n agency acts ultra 

vires when it ‘go[es] beyond what Congress has permitted it to do[.]’” 

Nastase v. Barr, 964 F.3d 313, 318 (5th Cir. 2020) (quoting City of Arlington 

v. FCC, 569 U.S. 290, 298 (2013)). Because the issue goes to the heart of the 

order’s validity, “whether [the] BIA decision was made ultra vires” is a 

“reviewable question.” Id. Put differently, that question is a “matter[] on 

which the validity of the final order is contingent.” Chadha, 462 U.S. at 938

(quotations and citation omitted); see also Jean v. Gonzales, 452 F.3d 392, 

396–98 (5th Cir. 2006) (considering the merits of an ultra vires claim asserted

in a petition for review).

C.

Having hurdled the Government’s threshold objections, we address

the merits of Medina Carreon’s ultra vires claim. Medina Carreon contends

that the two temporary BIA members who ruled in his case acted ultra vires

because their terms had “terminated by automatic operation of law” on 

October 31, 2020, nearly six months before they ruled in his case. This is so

because, according to Medina Carreon, the Director lacked authority to 

renew the members’ terms beyond the initial six-month period. As support, 

Medina Carreon contrasts the regulation authorizing the Director to 

designate temporary BIA members with the analogous regulation allowing for 

temporary immigration judges. Compare 8 C.F.R. § 1003.1(a)(4)

(authorizing Director to “designate . . . temporary Board members for terms 

not to exceed six months”) with 8 C.F.R. § 1003.10(e)(1) (authorizing 

Director to “designate . . . temporary immigration judges for renewable terms 

not to exceed six months” (emphasis added)). Medina Carreon submits that 

the absence of the word “renewable” in § 1003.1(a)(4) leaves the Director 

without authority to reappoint temporary BIA members. 

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The Government disputes Medina Carreon’s view of the regulation, 

positing that the regulation’s plain language “necessarily contemplates the 

possibility of more than one term of appointment.” Moreover, the

Government clarifies that, at the conclusion of their initial terms, the two 

temporary BIA members were reappointed by the Attorney General to new 

six-month terms.

4

 The Government therefore urges that the temporary BIA 

members exercised lawful authority at the time they ruled in Medina 

Carreon’s case.

Medina Carreon concedes that the Attorney General has authority to 

renew the terms of temporary BIA members. Instead, he lodges a more 

granular challenge to the Director’s authority to do so. In other words, his 

argument hinges on whether the Attorney General properly delegated his 

renewal authority to the Director through regulation. But his argument 

collapses against the BIA members’ reappointment paperwork, of which we 

take judicial notice, because that documentation substantiates the 

Government’s assertion that the temporary BIA members were reappointed 

by the Attorney General, not the Director. So Medina Carreon’s argument 

misses its mark.

III.

To be eligible for cancellation of removal, an alien must, inter alia,

have “been a person of good moral character” during the ten years 

immediately preceding the date of the application for cancellation of removal. 

4 As an addendum to its brief, the Government submitted copies of the members’ 

reappointment paperwork. Though our review is ordinarily limited to the administrative 

record, 8 U.S.C. § 1252(b)(4)(A), we may take judicial notice of “matters of public record 

directly relevant to the issue at hand,” Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 

2011), where the issue is the BIA’s authority itself, not its consideration of the record. 

Therefore, we take judicial notice of the temporary BIA members’ reappointment in

considering whether the BIA acted within its authority.

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8 U.S.C. § 1229b(b)(1)(B). Medina Carreon contends that the BIA erred in 

denying his application for cancellation of removal under § 1229b based on 

the finding that he lacked such character. We must first consider whether we 

have jurisdiction to review Medina Carreon’s arguments. See Ruiz-Perez v. 

Garland, 49 F.4th 972, 976 (5th Cir. 2022).

Congress has proscribed our jurisdiction to review “any judgment 

regarding the granting of relief under . . . [§] 1229b[.]” 8 U.S.C. 

§ 1252(a)(2)(B)(i). Nonetheless, Medina Carreon invites us to review the 

BIA’s conclusion that he is ineligible for relief under § 1229b(b)(1)(B), and 

the Government urges that we may do so under Trejo v. Garland, 3 F.4th 760 

(5th Cir. 2021).5 But to the extent Trejo articulated a distinction between 

ultimate determinations of whether to grant cancellation of removal

(discretionary, and not reviewable) and underlying determinations of 

whether an applicant is eligible for relief (non-discretionary, and reviewable), 

id. at 766–68, 772–73, Trejo has been abrogated by Patel v. Garland, 142 S. Ct. 

1614 (2022). See Castillo-Gutierrez v. Garland, 43 F.4th 477, 481 (5th Cir.

2022) (discussing Patel’s abrogation of Trejo). 

In Patel, the Supreme Court held that § 1252(a)(2)(B)’s jurisdictional 

bar extends to “any authoritative decision,” which “encompasses any and 

all decisions relating to the granting or denying of discretionary relief,”

including “[f]actual findings.” 142 S. Ct. at 1621. We have since held that 

Patel bars our review of the determination that an alien is ineligible for 

cancellation of removal under § 1229b(b)(1)(D). Castillo-Gutierrez, 43 F.4th 

at 481; see also Ayala Chapa, 60 F.4th at 903 (discussing Patel’s application to 

5

In Trejo, this court concluded that § 1252(a)(2)(B)(i) addresses only the ultimate 

discretionary determination of whether to grant cancellation of removal and not the 

underlying, non-discretionary determination of whether an applicant is eligible for 

discretionary relief. 3 F.4th at 766–68, 772–73. 

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§ 1229b), abrogated on other grounds by Santos-Zacaria, 143 S. Ct. at 1116–17. 

In like manner, Patel bars our review of the “authoritative decision” that an 

alien lacks good moral character under § 1229b(b)(1)(B). 142 S. Ct. at 1621.

6

To be sure, we retain jurisdiction over any “constitutional claims or 

questions of law” raised by a petition challenging the denial of cancellation 

of removal. 8 U.S.C. § 1252(a)(2)(D). Even then, the Government may 

timely object to our considering arguments that Medina Carreon failed to 

exhaust before the BIA. See 8 U.S.C. § 1252(d)(1) (granting review only 

where “the alien has exhausted all administrative remedies available to the 

alien as of right”); cf. Santos-Zacaria, 143 S. Ct. at 1116 (“[Section]

1252(d)(1)’s exhaustion requirement is not jurisdictional[;] it is subject to 

waiver and forfeiture.”). Mindful of these limitations, we review Medina 

Carreon’s arguments: (A) that the BIA gave too much weight to his 

cockfight-related criminal convictions and not enough weight to

rehabilitation, (B) that the BIA improperly relied on a 2019 Attorney 

General’s decision, and (C) that the IJ implicitly concluded that Medina 

Carreon’s conviction for attempted cruelty to animals constituted a crime 

involving moral turpitude.

A.

In his petition, Medina Carreon casts as a question of law the BIA’s 

purportedly misconstruing and misapplying its own precedent to give too 

much weight to his cockfighting-related criminal convictions and too little 

weight to “evidence of rehabilitation.” He exhausted this argument before 

the BIA, where he contended that the IJ did the same. But he “may not—

6 Whether “a specific alien lacks ‘good moral character’” is a “factual finding,”

Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002), and thus is authoritative under Patel, 

notwithstanding our pre-Patel case law reviewing that determination under the substantialevidence standard, see id. 

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merely by phrasing his argument in legal terms—use those terms to cloak a 

request for review of the BIA’s discretionary decision, which is not a question 

of law.” Nastase, 964 F.3d at 319 (cleaned up); see also Tibakweitira v. 

Wilkinson, 986 F.3d 905, 911 (5th Cir. 2021) (rejecting “argument [that] 

essentially asks us to reweigh the facts . . . , which we are without jurisdiction 

to do”). Simply put, his contention that the BIA did not properly consider 

all the relevant factors “does not involve a constitutional claim or a question 

of law[.]” Natase, 964 F.3d at 320 (quoting Sung v. Keisler, 505 F.3d 372, 377 

(5th Cir. 2007)). We therefore lack jurisdiction to consider this argument. 

B.

Medina Carreon also contends that the BIA improperly relied on a 

2019 decision7 by the then-Acting Attorney General (AAG) because it was 

issued without legal authority due to alleged defects in the AAG’s 

appointment.

Preliminarily, exhaustion does not bar our consideration of this claim. 

While the Government objects that Medina Carreon failed to exhaust this 

claim by not raising it in a motion to reconsider before the BIA, a motion for 

reconsideration was not necessary. Santos-Zacaria, 143 S. Ct. at 1116–17.

Even so, we do not consider the merits because Medina Carreon failed 

to brief the issue adequately. Medina Carreon contends that the AAG’s

appointment “violated the Attorney General Succession Act as well as 

Executive Order 13753,” but he nowhere explains what those laws require or 

how the AAG’s appointment ran afoul of them. He points to a single out-ofcircuit district court case—Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 

928 (D. Md. 2020)—and urges that “the same analytical framework” applies 

7 See Matter of Castillo-Perez, 27 I. & N. Dec 664 (A.G. 2019).

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here. But he fails to identify that framework or otherwise explain how Casa 

de Maryland, a case about the legality of the appointment of an Acting 

Secretary of Homeland Security, applies to the AAG or to the BIA’s opinion 

regarding Medina Carreon’s removal. Accordingly, we find that he waived

this argument. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir. 

2021).

8

C.

Finally, Medina Carreon contends that the IJ committed legal error by 

“bas[ing] his decision . . . on the flawed, implicit legal conclusion” that 

Medina Carreon’s conviction for attempting to commit cruelty to animals is 

a crime involving moral turpitude (CIMT).9 Medina Carreon did not raise 

this argument before the BIA. But because the Government failed to raise

exhaustion as to this argument, any such objection is forfeited. See SantosZacaria, 143 S. Ct. at 1112 (Section 1252(d)(1)’s exhaustion requirement “is 

a quintessential claim-processing rule.”); see also Ward v. United States, 11 

F.4th 354, 361 (5th Cir. 2021) (Any objection based on noncompliance with 

8 While the terms waiver and forfeiture are “often used interchangeably by jurists 

and litigants,” they “are not synonymous.” Id. (citations and quotations omitted). 

“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 

‘intentional relinquishment or abandonment of a known right.’” Id. (quoting United States 

v. Olano, 507 U.S. 725, 733 (1993)). 

Medina Carreon seems to recognize that his opening brief’s discussion of the 

AAG’s alleged lack of authority is inadequate, as he promised that he “[would] fully brief 

the issue” in reply “[i]n the event Respondent contest[ed]” his argument. The 

Government thoroughly did so, yet Medina Carreon then wholly failed to address the issue 

on reply. So after cursorily raising the point, he later intentionally abandoned this argument 

in his briefing.

9

In the alternative, he contends that even if his offense constitutes a CIMT, the 

petty-offense exception in 8 U.S.C. § 1182(a)(2)(A)(ii) applies. Because we conclude that 

neither the IJ nor the BIA considered his conviction to be a CIMT, we need not decide this 

issue.

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a claim-processing rule is forfeited “if the party asserting the rule waits too 

long to raise the point.” (quotations and citations omitted)). 

Nevertheless, Medina Carreon’s argument fails. The IJ listed Medina 

Carreon’s conviction among the factors weighing against a finding of good 

moral character but never found it to be a CIMT. Neither did the BIA. 

Though the BIA noted that it had previously found “a conviction involving 

cockfighting, specifically for sponsoring or exhibiting an animal in an animal 

fighting venture,” to be a CIMT, it never concluded that Medina Carreon’s 

own cockfighting-related conviction was itself a CIMT. Rather, the BIA 

determined that the IJ had not erred in concluding that Medina Carreon’s 

attendance at the cockfight and his related convictions impugned his moral 

character.10

IV.

Finally, Medina Carreon challenges the BIA’s decision affirming the 

IJ’s sua sponte denial of voluntary departure under 8 U.S.C. § 1229c, on two 

grounds. First, he contends that the denial of voluntary departure relied on 

the same flawed good-moral-character determination that undergirded the 

denial of his request for cancellation of removal. But § 1252(a)(2)(B)’s 

limitation on our jurisdiction expressly extends to review of decisions 

regarding voluntary departure under § 1229c. See Patel, 142 S. Ct. at 1622 

(stating that the Court’s reasoning extends to all the “enumerated 

provisions” in § 1252(a)(2)(B)). 

10 Moreover, the IJ and BIA found he lacked good moral character under 8 U.S.C. 

§ 1101(f)’s catchall provision, which only applies to aliens who are not within any of the 

classes enumerated in the statute. See supra note 2. One of those includes aliens convicted 

of a CIMT. See 8 U.S.C. § 1101(f)(3). Thus, by applying § 1101(f)’s catchall provision, the 

IJ and BIA implicitly determined that Medina Carreon’s conviction was not a CIMT.

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Second, Medina Carreon contends that the IJ committed legal error 

by looking beyond the requisite five-year period to consider his 2011 

cockfighting-related convictions. See 8 U.S.C. § 1229c(b)(1)(B) (permitting 

an IJ to grant voluntary departure where “the alien is, and has been, a person 

of good moral character for at least 5 years immediately preceding the alien’s 

application for voluntary departure”). To the extent Medina Carreon 

challenges the BIA’s interpretation of § 1229c(b)(1)(B), we may review it 

under 8 U.S.C. § 1252(a)(2)(D). See Kemp v. G.D. Searle & Co., 103 F.3d 

405, 407 (5th Cir. 1997) (“Questions of statutory interpretation are questions 

of law[.]”). 

The Government objects to our considering this issue because Medina 

Carreon failed to raise it before the BIA as required by § 1252(d)(1)’s 

exhaustion requirement. We agree that the issue is unexhausted and 

therefore decline to reach it.11

V.

For the forgoing reasons, we DISMISS Medina Carreon’s petition 

for review in part and DENY it in part. 

11 Neither the Supreme Court nor our court has yet decided whether § 1252(d)(1) 

is a mandatory claim-processing rule. See Fort Bend Cnty., Tex. v. Davis, 139 S. Ct. 1843, 

1849 (2019) (“A claim-processing rule may be ‘mandatory’ in the sense that a court must 

enforce the rule if a party properly raise[s] it.” (alteration in original) (citations and 

quotations omitted)). But because we would enforce the exhaustion requirement here 

either way, we need not decide whether § 1252(d)(1) requires us to do so.

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