UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JOSE RAMON TORRES-MARTINEZ, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 23-9549 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , BACHARACH , and CARSON , Circuit Judges.

________________ _________________ Petitioner Jose Ramon Torres-Martinez , a native and citizen of Mexico, petitions for review of the Board of Immigr ation Appeals’ (BIA) denial of his motion to reopen his application for cancellation of removal. His petition is dismissed to the extent it seeks review of the BIA’s denial of cancellati on, and otherwise denied.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 9, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-9549 Document: 010111046705 Date Filed: 05/09/2024 Page: 12 I. Background and Prior Proceedings Mr. Torres-Martinez entered the United St ates without inspection in 2003. In 2012, the Department of Homeland Security charged him with being removable from the United States. He conced ed removability but applied for cancellation of removal under 8 U.S.C. § 1229b. In 2018, an I mmigration Judge (IJ) held a hearing and denied his application for cancellati on. Based on Mr. Torres-Martinez’s driving-related convictions—for reckless driving in 2011, for a DUI in 2012, and for another DUI in 2016—the IJ found he had not established the “ good moral character” required by § 1229b(b)(1)(B) to be eligib le for cancellation and also denied cancellation “as a matter of discretion.” R. at 204. Mr. Torres-Martinez appealed to the BI A, which affirmed both the IJ’s finding that he “has not shown the good mo ral character required pursuant to [§ 1229b(b)(1)(B)]” and also the conclusi on that “cancellation of removal is not warranted in the exerci se of discretion.” R. at 106. Mr. Torres- Martinez did not petition for judicial review of that decision. Instead, he filed a motion to reopen with the BIA, submitting additional evidence. The BIA denied his motion to reopen. Mr. Torres-Martinez then petitioned for our review of that decision. Respondent moved for a remand to allow the BIA to “c onduct an individualized assessment of [Mr. Torres-Martin ez’s] evidence,” R. at 23, and we granted that motion. On remand, the BIA again denied the mo tion to reopen. After considering his additional evidence, it found Mr. Torres-Martin ez “still [did] not meet [his] burden of showing . . . the requisite good moral charact er” needed for prima facie eligibility for Appellate Case: 23-9549 Document: 010111046705 Date Filed: 05/09/2024 Page: 23 cancellation. Further, the BIA also ruled that “notwithstanding the new evidence, Mr. Torres-Martinez still “ha[d] not shown that he merits a discretionary grant of cancellation of removal,” concluding that “n egative considerations, including, inter alia, his two DUI convictions and twice leav ing the scene of accidents, outweigh his equities.” R. at 4. Mr. Torres-Martinez now seeks re view of that decision. II. Legal Standards If an alien meets the elig ibility requirements set by § 1229b(b)(1)(A)–(D)— including being “a person of good moral ch aracter” for ten years preceding his application, § 1229b(b)(1)(B)—th en “[t]he Attorney General may cancel removal,” § 1229b(a) (emphasis added) . “Because relief from remova l is always a matter of grace, even an eligible noncitiz en must persuade the immigr ation judge that he merits a favorable exercise of discretion.” Patel v. Garland , 596 U.S. 328, 332 (2022) (internal quotation marks omitted). When the BIA makes a discretionary judgment to deny cancellation of removal, this court’s j udicial review is “sha rply circumscribed.” See id. Specifically, “[8 U.S.C.] § 1252(a)(2)(B)( i) strips courts of jurisdiction over ‘judgments regarding the granting of disc retionary relief under section 1229b.’” Wilkinson v. Garland , 601 U.S. 209, 218 (2024) (quoting § 1252(a)(2)(B)(i) (alterations omitted)). An exception to that jurisdictional rest riction is carved out by § 1252(a)(2)(D), which preserves judicial revi ew of “constitutional claims or questions of law.” The Supreme Court has held that such “questions of law” that remain subject to judicial Appellate Case: 23-9549 Document: 010111046705 Date Filed: 05/09/2024 Page: 34 review include “the application of a legal st andard to undisputed or established facts, also referred to as mixed que stions of law and fact.” Wilkinson , 601 U.S. at 217 (internal quotation marks omitted). Thus, “p etitions raising mixe d questions of law and fact are always reviewab le as questions of law.” Id. at 218–19. However, we “lack jurisdiction to revi ew agency factfinding.” Martinez v. Garland , 98 F.4th 1018, 1021 n.2 (10t h Cir. 2024). Likewise, “if th e IJ decides a noncitizen is eligible for cancellation of removal at step one, hi s step-two discretionary determination on whether or not to grant cancellation of removal in the particular case is not reviewable as a question of law.” Wilkinson , 601 U.S. at 225 n.4. 1 Denial of a motion to reopen “is consid ered a final, separately appealable order.” Infanzon v. Ashcroft , 386 F.3d 1359, 1361 (10th Cir. 2004). “We typically review the BIA’s denial of a motion to reopen for abuse of discretion,” while “review[ing] any valid constitutional clai ms or questions of law de novo.” Martinez , 98 F.4th at 1021 (internal quotation marks omitted). However, “we lack jurisdiction over mo tions to reopen when jurisdiction over the underlying removal order is precluded by statute.” Alzainati v. Holder , 568 F.3d 844, 849 n.4 ( 10th Cir. 2009), abrogated in part by Wilkinson , 601 U.S. at 217; 2

1 An IJ can also assume eligibility and deny cancellation as a discretionary determination. See Patel , 596 U.S. at 332 (“[I]f the judge decides that denial would be appropriate regardless of eligibility, the judge need not a ddress eligibility at all.”). 2 Alzainati applied then-controlling law in this circuit, which held the BIA’s decision that an applicant had not s hown “exceptional and extremely unusual hardship” to a relative under § 1229b(b)(1 )(D) was a discretionary decision and therefore “insulated from our review under § 1252(a)(2)(B)[(i)].” 568 F.3d at 848. Appellate Case: 23-9549 Document: 010111046705 Date Filed: 05/09/2024 Page: 45 see also Infanzon , 386 F.3d at 1362 (noting that “w here judicial review of the underlying order is precluded,” then judici al review of a “denial of a subsequent motion to reopen [is] also pr ecluded”). Thus, “if, in deciding a motion to reopen the BIA credits and considers the new evidence . . . and determines the alien would still not be entitled to [cancellation], we cannot revi ew that merits decision even if it takes the form of a denial of a motion to reopen.” Alzainati , 568 F.3d at 850.
III. Discussion Because Mr. Torres-Martinez seeks review of the denial of a motion to reopen, our jurisdictional analysis “must consider the basis for the denial of the motion to reopen.” See Alzainati , 568 F.3d at 849. Here, the BIA denied reopening for two independent reasons, concluding both that Mr. Torres-Martinez had not sufficiently established “good moral charac ter” and also that cancella tion was not warranted as a matter of discretion. Th e second reason—the BIA’s decision that Mr. TorresMartinez did not merit a discretionary gr ant of cancellation—is a discretionary judgment we have no jurisdiction to review. § 1252(a)(2)(B)(i); Wilkinson , 601 U.S.

Wilkinson abrogated that holding, establishing th at “the application of the exceptional and extremely unusual hardship standard to a given set of facts is reviewable as a question of law under § 1252(a )(2)(D).” 601 U.S. at 217. However, Wilkinson did not affect the rule from Alzainati and Infanzon that where § 1252(a)(2) precludes our review of the BIA’s underlying decision, we also lack jurisdiction to review the denial of a motion to reopen that decision. See Martinez , 98 F.4th at 1020–21 & n.1 (acknowledging Alzainati is “partially abrogated” but citing it for the proposition that jurisdiction to review the denial of a motion to reopen depends on having jurisdic tion over the underlying determination). Appellate Case: 23-9549 Document: 010111046705 Date Filed: 05/09/2024 Page: 56 at 225 n.4. We therefore dismiss his petiti on to the extent it seeks review of that decision. Furthermore, the BIA’s discretionary decision not to grant cancellation of removal is independently dispositive of Mr . Torres-Martinez’s application. Even assuming we have jurisdiction to review the BIA’s determination regarding good moral character, any remand for the BIA to further consider that issue ( i.e. , whether Mr. Torres-Martinez might be eligible for cancellation) woul d not reach the BIA’s discretionary decision to not grant cancellation. We therefore do not address the moral character determination. 3 See Alzainati , 568 F.3d at 850 (“Requiring the agency to hold a hearing ‘just for dril l’ is unnecessary and unwarranted.”); Am. Sw. Mortg. Corp. v. Cont’l Cas. Co. , 84 F.4th 910, 917 n.4 (10th Cir. 2023) (“‘We will not undertake to decide i ssues that do not affect th e outcome of a dispute.’” (quoting Griffin v. Davies , 929 F.2d 550, 554 (10th Cir. 1991)). Lastly, in his reply brief Mr. Torres-Ma rtinez argues the BIA violated his due process rights by failing to consider and address the ne w evidence submitted with his motion to reopen. We have jurisdiction to review “allegation[s] of wholesale failure to consider evidence,” because such claims im plicate due process. See Alzainati , 568 F.3d at 851 (internal quotation marks omitted); see also id. at 849 n.5. However, Mr. Torres-Martinez waived a ny due process claim because he did not raise it in his

3 We also do not address whether, after Wilkinson , we would have jurisdiction to review the BIA’s determination that Mr. Torres-Martinez did not meet the good moral character requirement under § 122 9b(b)(1)(B) and 8 U.S.C. § 1101(f). Appellate Case: 23-9549 Document: 010111046705 Date Filed: 05/09/2024 Page: 67 opening brief. Platt v. Winnebago Indus., Inc. , 960 F.3d 1264, 1271 (10th Cir. 2020) (“[W]e will not entertain issu es raised for the first time on appeal in an appellant’s reply brief.” (internal quota tion marks omitted)). To th e extent Mr. Torres-Martinez raises a due process claim, his petition is denied.
IV. Conclusion For the foregoing reasons, Mr. Torres-Mar tinez’s petition is dismissed to the extent he seeks review of the denial of cancellation of remova l, and is otherwise denied.

Entered for the Court
Timothy M. Tymkovich Circuit Judge Appellate Case: 23-9549 Document: 010111046705 Date Filed: 05/09/2024 Page: 7