United States Court of Appeals

For the Eighth Circuit

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No. 17-2044

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Carlos Caballero-Martinez

lllllllllllllllllllllPetitioner

v.

William P. Barr, Attorney General of the United States

lllllllllllllllllllllRespondent

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No. 18-1198

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Carlos Caballero-Martinez

lllllllllllllllllllllPetitioner

v.

William P. Barr, Attorney General of the United States

lllllllllllllllllllllRespondent

____________

Petition for Review of an Order of the

 Board of Immigration Appeals

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Submitted: December 11, 2018

Filed: April 3, 2019

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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.

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SMITH, Chief Judge.

Carlos Caballero-Martinez petitions for review of two orders from the Board

of Immigration Appeals (BIA). The first order denied his motion to administratively

close or remand to the immigration judge and the second order denied his motion to

reopen and reconsider the first denial. We grant the petition for review and affirm in

part and remand in part.

I. Background

A native and citizen of Mexico, Caballero-Martinez entered the United States

illegally in 2000. He has four children, three of whom are United States citizens. 

In September 2011, the Department of Homeland Security (DHS) initiated

removal proceedings against Caballero-Martinez. At his removal hearing,

Caballero-Martinez admitted to being in the United States illegally. However, he

requested cancellation of removal under 8 U.S.C. § 1229b. Section 1229b(b)(1)(D)

allows for cancellation of removal if the “removal would result in exceptional and

extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of

the United States or an alien lawfully admitted for permanent residence.”

Caballero-Martinez claimed his children would suffer “exceptional and extremely

unusual hardship” if he were removed.

Immigration Judge (IJ) Paula Davis conducted Caballero-Martinez’s removal

hearing. However, IJ Davis retired before issuing a decision; the case was then

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assigned to IJ Glen Baker. IJ Baker reviewed the proceedings and IJ Davis’s draft

decision, and he adopted “the reasoning and conclusions therein.” Pet’r’s Add. at 20.

In a February 2016 order, IJ Baker found Caballero-Martinez’s “children

[were] good students in school and [did] not have any learning problems or other

mental health problems.” Id. at 18. He noted that “[t]he principal hardship factor

identified by [Caballero-Martinez] is difficulty in finding work in his hometown and

that he would struggle [to] find a place for his family to live.” Id. Though the IJfound

Caballero-Martinez’s hardship testimony credible, he ultimately held that

Caballero-Martinez had “not provided evidence to establish that his qualifying

relatives would suffer hardship that is substantially different from, or beyond that,

which would normally be expected to result from deportation of an alien with close

family members in the United States.” Id. at 19.

In March 2016, Caballero-Martinez appealed IJ Baker’s order to the BIA. He

again argued his children would suffer “exceptional and extremely unusual hardship”

if he returned to Mexico; he also argued that, by allowing a judge who had not been

present at his cancellation hearing to issue a decision in his case, the immigration

court had violated his due process rights as well as the Immigration and

Naturalization Act (INA) and its implementing regulations. 

While the appeal was still pending, Caballero-Martinez became the victim of

a criminal assault. Based on this development, Caballero-Martinez applied to the

United States Citizenship and Naturalization Services (USCIS) for a U Visa. The

U Visa (Form I-918) is a type of non-immigrant visa available to crime victims who

assist law enforcement. In November 2016, Caballero-Martinez filed a motion with

the BIA to remand for a continuance, or, in the alternative, for administrative closure

of removal proceedings, pending adjudication of his U Visa petition.

Caballero-Martinez also contended the BIA should remand to allow the IJto consider

additional hardship evidence, claiming his children had begun performing poorly in

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school. DHS opposed the motion. USCIS did not issue a Form I-797 Notice of

Action—i.e. a filing receipt for Caballero-Martinez’s U Visa petition—until

December 2016, after he filed his motion to remand.

The BIA denied Caballero-Martinez’s motion to remand or administratively

close in April 2017 (“the April order”). The April order began by finding IJ Baker’s

decision was neither substantively nor procedurally unsound, citing regulations

permitting the use of substitute IJs. The BIA then found Caballero-Martinez’s

additional hardship evidence was unlikely to alter the outcome of his case and thus

declined to remand. The BIA also declined to administratively close or remand

pending the U Visa petition’s adjudication, explaining that Caballero-Martinez “ha[d]

not put forward an adequate basis to temporarily remove his case from the Board’s

docket or, if remanded, from the Immigration Judge’s active calendar.” Id. at 9. The

BIA noted in a footnote that Caballero-Martinez had not provided evidence, such as

a “Notice of Action,” that his application had been received by USCIS. The BIA also

explained that “[t]he regulations provide exclusive jurisdiction over [U Visa]

applicationsto the DHS and also specifically address U [V]isa ‘petitioners’ with final

orders of removal. The filing of the application has no effect on the Government’s

authority to execute a final order . . . .” Id. (internal citation omitted). The order did

not specify whether it was denying Caballero-Martinez’s request on jurisdictional or

evidentiary grounds. 

After receiving a filing receipt from USCIS, Caballero-Martinez moved the

BIA to reopen and reconsider his case in May 2017. The BIA denied his request for

reconsideration in December 2017 (“the December order”), explaining that

Caballero-Martinez’s “motion relies on evidence that he submitted on appeal and by

motion.” Id. at 3. The BIA also declined to reopen, reiterating that the hardship

evidence presented as part of his November 2016 motion was not sufficient to change

the outcome of the proceedings. Finally, the BIA reaffirmed its refusal to

administratively close proceedings “based on [Caballero-Martinez’s] intent to pursue

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a U visa application.” Id. The BIA explained that in the April order, “we noted that

[Caballero-Martinez] purported that he mailed the U [V]isa application to USCIS but

he did not provide evidence that the application was received, such as by a Notice of

Action (Form I-797). While [Caballero-Martinez] has now included receipt of his

[U Visa] application, this does not alter the reasons for our denial of his request for

administrative closure.” Id. at 3–4.

Caballero-Martinez now petitions this court for review of both the BIA’s April

and December orders. Caballero-Martinez argues the BIA’s April order failed to

address whether the use of a substitute IJ violated the INA or its implementing

regulations. He also argues the BIA erred in its April order by applying the incorrect

standard to his motion to remand for consideration of additional hardship evidence

and by denying his motion to remand for a continuance pending the adjudication of

his U Visa petition. Additionally, he argues the BIA erred in its December order by

declining to reopen and reconsider his case after he provided proof of his U Visa’s

filing.

II. Discussion

A. Use of a Substitute IJ

Caballero-Martinez argues the BIA failed to address whether using a substitute

IJ violated the INA or its implementing regulations in its April order; he claims the

BIA exclusively addressed his due process argument. We disagree and affirm the

BIA’s decision to allow the use of the substitute IJ. 

We have previously upheld the use of substitute IJs in immigration cases. See

Njoroge v. Sessions, 709 F. App’x 380, 381 (8th Cir. 2017) (per curiam). In Njoroge,

the IJ who conducted the petitioner’s removal hearing retired before issuing a

decision, so the decision was issued by a substitute IJ. Id. at 380. Upon reviewing the

evidence, the substitute IJ determined the petitioner was not credible and denied his

asylum claim. Id. On appeal from a BIA order sustaining the substitute IJ’s denial,

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petitioner contended “that several regulatory and statutory requirements were violated

by reason of the second IJ’s credibility determinations made in the absence of an

opportunity to observe [the petitioner’s] demeanor in a face-to-face setting.” Id. at

381. However, we held that “because it was the BIA’s decision that constituted the

final reviewable agency action, which did not rely on the credibility determination

when it analyzed the merits of [the petitioner’s] claims,” the petitioner’s rights had

not been violated. Id.

Caballero-Martinez attempts to distinguish Njoroge by arguing the BIA here

“explicitly affirmed the IJ’s factual findings,” Pet’r’s Br. at 27, while the BIA in

Njoroge did not rely on the IJ’s credibility determinations. Njoroge, 709 F. App’x at

381. Unlike in Njoroge, however, where the substitute IJ did not find petitioner

credible, IJ Baker did find Caballero-Martinez credible; ultimately, the IJ denied

relief not becauseCaballero-Martinez wasinsincere in alleging hardship, but because

his hardship evidence wasinsufficient. Here, Caballero-Martinez does not contest the

IJ’s credibility findings. Rather, he contests the IJ and the BIA’s weighing of the

evidence.

The April order indicates that the BIA did, in fact, consider

Caballero-Martinez’s hardship evidence; its ultimate agreement with the IJ’s

determination does not render its decision invalid. Because the BIA’s April order

relied on an uncontested credibility determination, our decision here does not conflict

with our decision in Njoroge. Rather, Njoroge supports the proposition that

immigration courts may use substitute IJs. 

Furthermore, the use of a substitute IJissupported by the INA’s implementing

regulations, which the BIA cited in the April order. The record therefore plainly

contradicts Caballero-Martinez’s claim that the BIA did not address his statutory or

regulatory arguments in its April order. In fact, the BIA thoroughly discussed the

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statutory and regulatory bases for using a substitute IJ. Specifically, the BIA cited to

and quoted 8 C.F.R. § 1240.1(b) for support. Section 1240.1(b) provides that

[i]f an immigration judge becomes unavailable to complete his or her

duties, another immigration judge may be assigned to complete the case.

The new immigration judge shall familiarize himself or herself with the

record in the case and shall state for the record that he or she has done

so. 

In denying cancellation, IJ Baker complied with the regulations. At the end of

his order, IJ Baker stated that he had reviewed the proceedings conducted by IJ Davis,

as well as her draft decision. Caballero-Martinez has presented no evidence that IJ

Baker did otherwise. Caballero-Martinez’s attempt to cast doubt on IJBaker’s review

by noting that his order is erroneously captioned as an oral decision is likewise

unavailing. The order is a written decision regardless of its caption.

“[T]he BIA need not revisit in detail every issue raised concerning the original

order.” Camacho v. Whitaker, 910 F.3d 378, 381 (8th Cir. 2018). Rather, “the BIA’s

obligation is to ‘consider the issues raised and announce its decision in terms

sufficient to enable a reviewing court to perceive that it has heard and thought and not

merely reacted.’” Id. (quoting Camarillo-Jose v. Holder, 676 F.3d 1140, 1143 (8th

Cir. 2012)). TheBIA’s substantial discussion ofthe statutory and regulatory bases for

using a substitute IJ were sufficient for our review purposes.

B. Additional Hardship Evidence

Caballero-Martinez also argues the BIA erred in not remanding his case to the

IJ after he submitted additional hardship evidence. In both its April and December

orders, the BIA denied remand on the basis that the additional hardship evidence was

unlikely to alter the outcome of the case, citing to Matter of Coelho, 20 I. & N. Dec.

464 (BIA 1992). Caballero-Martinez denies Coelho’s validity, claiming the BIA

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abrogated Coelho in In re L-O-G, 21 I. & N. Dec. 413 (BIA 1996).

Caballero-Martinez argues that, per L-O-G, the BIA should remand when presented

with potentially worthwhile new evidence. He asks us to remand to the BIA with

instructions to apply his preferred, lower standard.

“[T]he BIA’s interpretation of immigration laws and regulations receives

substantial deference.” Muiruri v. Lynch, 803 F.3d 984, 986 (8th Cir. 2015). We have

repeatedly upheld the BIA’s application of the Coelho likely-to-change-the-result

standard, recognizing that “the BIA will remand only if the evidence is of such a

nature that the Board issatisfied that if proceedings before the IJ were reopened, with

all the attendant delays, the new evidence would likely change the result in the case.”

Clifton v. Holder, 598 F.3d 486, 492 (8th Cir. 2010) (emphasis added) (quoting Berte

v. Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005)); see also Lee v. Holder, 765 F.3d 851,

855 (8th Cir. 2014); Vargas v. Holder, 567 F.3d 387, 391 (8th Cir. 2009).

We specifically decline to interpret L-O-G as abrogating Coelho. Such an

interpretation would conflict with our prior cases and is contrary to the L-O-G

decision itself. The BIA in L-O-G explicitly distinguished Coelho, explaining that

where, as in Coelho, “the alien had already had an opportunity to fully present and

litigate his request for discretionary relief from deportation . . . . reopening should not

be granted unless the alien had met the ‘heavy burden’ of showing that the new

evidence presented ‘would likely change the result in the case.’” L-O-G, 21 I. & N.

Dec. at 419–20 (quoting Coelho, 20 I. & N. Dec. at 473). Caballero-Martinez “had

an opportunity to fully present and litigate his request for discretionary relief from

deportation” before the immigration court, so “reopening should not be granted unless

the alien ha[s] met ‘the heavy burden’ of showing that the new evidence presented

‘would likely change the result in the case.’” Id. at 420 (emphasis added) (quoting

Coelho, 20 I. & N. Dec. at 473).

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Accordingly, we hold that the BIA applied the correct legal standard in

reviewing Caballero-Martinez’s request to submit additional hardship evidence.1

C. U Visa Petition

Caballero-Martinez’s final argument is that the BIA erred in its April order by

declining to remand or administratively close his case to await resolution of his

U Visa petition. He also claims the BIA erred in its December order by declining to

reopen and reconsider his case after he submitted proof that USCIS had received his

petition. Caballero-Martinez specifically argues that the BIA erroneously departed

from its established policy by declining to apply “‘a rebuttable presumption’ in favor

of delaying removal proceedings to await the adjudication of a U [V]isa,” Pet’r’s Br.

at 20, as articulated in Matter of Sanchez-Sosa, 25 I. & N. Dec. 807, 815 (BIA 2012).

“We review both the denial of a motion to remand and the denial of a motion

to reopen for abuse of discretion.” Clifton, 598 F.3d at 490. “The BIA abuses its

discretion if its decision is without rational explanation, departs from established

policies, invidiously discriminates against a particular race or group, or where the

agency failsto consider all factors presented by the alien or distortsimportant aspects

of the claim.” Id. at 490–91 (quoting Vargas, 567 F.3d at 391).

In Sanchez-Sosa, the BIA established a policy by articulating factors an IJ

should consider in determining whether to continue removal proceedings pending the

To the extent Caballero-Martinez challenges the BIA’s underlying

1

determination that the new evidence likely would not change the result of the case,

that determination is unreviewable by this court. An appellant who “question[s]

whether the BIA accurately assessed or, ultimately, gave due weight to the[]

[hardship] factors . . . attacks the BIA determination that the evidence failed to show

an extraordinary and extremely unusual hardship. This finding, however, is precisely

the discretionary determination that Congress shielded from our review.”

Nunez-Portillo v. Holder, 763 F.3d 974, 977 (8th Cir. 2014) (cleaned up).

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adjudication of a U Visa application. I. & N. Dec. at 812. IJs may grant continuances

on the basis of pending U Visa petitions even though they do not have jurisdiction

over U Visa petitions. Id. at 812. According to Sanchez-Sosa, IJs should consider “(1)

the DHS’s response to the [alien’s] motion [to continue]; (2) whether the underlying

visa petition is prima facie approvable; and (3) the reason for the continuance and

other procedural factors.” Id. at 812–13. As part of proving the approvability of their

petition, aliens are also encouraged to provide “a receipt indicating that the petition

has been submitted to the USCIS.” Id. at 814. Where “the alien shows that he has

filed a completed application before the USCIS . . . and the petition appears to meet

the necessary criteria to be granted, then any delay not attributable to the alien ‘augurs

in favor of a continuance.’” Id. (quoting Matter of Hashmi, 24 I. & N. Dec. 785, 793

(BIA 2009). “As a general rule, there is a rebuttable presumption that an alien who

has filed a prima facie approvable application with the USCIS will warrant a

favorable exercise of discretion for a continuance for a reasonable period of time.”

Id. at 815. “On remand, the respondents should be given a final opportunity to

provide copies of and proof regarding the filing of their application with the USCIS

and to otherwise meet the criteria established in this decision for the Immigration

Judge’s consideration of their request for a continuance.” Id. at 816.

A recent unpublished BIA decision suggests that, when a respondent files a

motion to remand pending the adjudication of his U Visa application during the

pendency of his appeal, remand to the IJ is appropriate. See In Re: Jose Luis

Gutierrez-Rodriguez A.K.A. Jose Gutierrez, No. AXXX XX5 106 - ELO, 2016 WL

6519977, at *5 (DCBABR Sept. 26, 2016). In Gutierrez-Rodriguez, the BIA

remanded following respondent’s filing of a U Visa noting “that the Immigration

Judge should have the opportunity to develop the record with regard to these

considerations in issuing a new decision.” Id. 

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1. The April Order

In its April order, the BIA offered two rationales for denying

Caballero-Martinez’s request to await adjudication of his U Visa petition: CaballeroMartinez’s failure to provide an “adequate basis” for pausing removal proceedings

and the BIA’s lack of jurisdiction over U Visa petitions. Pet’r’s Add. at 9. Though

Caballero-Martinez requested either remand or administrative closure in his motion,

the BIA’s April order characterized Caballero-Martinez as having only requested

administrative closure with respect to the U Visa petition. However, the BIA cited to

both Sanchez-Sosa—a remand case—and Matter of Avetisyan, 25 I. & N. Dec. 688,

696 (BIA 2012)—an administrative closure case—for support, suggesting the BIA

considered both grounds for relief. 

On appeal, the government argues that both of the bases identified by the BIA

justified its decision not to remand. The government also specifically argues SanchezSosa—and its rebuttable presumption in favor of remand—do not apply here. The

government distinguishes Sanchez-Sosa procedurally, noting that respondent in that

case requested a continuance before the IJ, while Caballero-Martinez requested

administrative closure directly fromthe BIA. Therefore, according to the government,

the applicable precedent for the BIA was Avetisyan. 

Addressing the facts of this case, the government’s views of the applicability

of Sanchez-Sosa and Avetisyan are inaccurate. The record indicates that

Caballero-Martinez requested either remand for a continuance or administrative

closure, pending the adjudication of his U Visa petition. Therefore, the government’s

argument that only Avetisyan controls is unpersuasive.

2

Furthermore, Avetisyan’s continued validity has been called into question by 2

Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018), a recent decision by the

AttorneyGeneral essentially ending the practice of administrative closure. CaballeroMartinez has indicated that he is waiving his administrative closure argument for the

purpose of this appeal. We agree that resolving the question of whether the BIA

properly denied administrative closure is not necessary to the resolution of this case.

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We are likewise unconvinced by the government’s argument that CaballeroMartinez’s requesting remand for a continuance from the BIA rather than a

continuance directly from the IJ prevents Sanchez-Sosa from controlling the result.

The criminal assault against Caballero-Martinez occurred after the IJ had already

issued his order. The assault—the event triggering his U Visa eligibility—occurred

too late to enable Caballero-Martinez to request a continuance before the IJ. We see

no distinguishing feature that would cause the principle stated in SanchezSosa—pausing removal proceedings pending the adjudication of a petition potentially

rendering removal inapplicable—to operate differently depending on whether the

triggering event occurs while the case is before the IJ or before the BIA.

The government’s reliance on the BIA’s lack of jurisdiction over U Visa

petitions as a basis for denying remand is shaky at best. In Clifton, we rejected the

argument that a lack of jurisdiction over the underlying petition justified denying

remand. 598 F.3d at 493. The question was whether “the BIA abuse[s] its discretion

by refusing to remand and reopen removal proceedings solely on the ground that the

BIA lacks jurisdiction over an application for adjustment of status that has been filed

with and pends before USCIS,” and we answered it in the affirmative. Id. The issues

here and in Clifton are sufficiently similar for us to hold that to the extent the BIA

declined to remand Caballero-Martinez’s case due to its lack of jurisdiction over his

U Visa application, it erred. 

Nevertheless, the BIA did not err in denying Caballero-Martinez’s motion to

remand. Unlike in Clifton, the BIA did offer a rational and non-jurisdictional reason

for denying Cabellero-Martinez’s remand motion: his failure to provide the BIA with

evidence of his U Visa petition’s filing. It is unclear fromthe BIA’s language whether

other factors—such as DHS’s opposition to the motion—influenced the BIA’s

determination that Caballero-Martinez had not put forward an “adequate basis” for

remand. But Caballero-Martinez’s failure to submit a filing receipt rendersthe BIA’s

April order affirmable. 

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2. The December Order

The BIA suggested in its April order that it had denied Caballero-Martinez’s

motion because of his failure to provide proof of his U Visa petition’s filing. In

response, Caballero-Martinez submitted the required Notice of Action, along with a

motion to reopen and reconsider his request for remand or administrative closure.

However, the BIA denied the motion in the December order, noting that “[w]hile the

respondent has now included a receipt of his Form I-918 application, this does not

alter the reasons for our denial of his request for administrative closure.” Pet’r’s Add.

at 4. The BIA apparently construed Caballero-Martinez’s motion to reopen and

reconsider solely asrequesting administrative closure, making no mention of remand

for a continuance and citing no remand-specific case law.

In offering such an abbreviated explanation, the BIA failed to offer a coherent,

“rational explanation” for its denial of Caballero-Martinez’s motion to reopen or

reconsider. Clifton, 598 F.3d at 490. In other words, the BIA did not “announce its

decision in terms sufficient to enable [us] to perceive that it has heard and thought

and not merely reacted.” Camacho, 910 F.3d at 381 (quoting Camarillo-Jose, 676

F.3d at 1143. The BIA did not specify its previous reasons for denial, leaving us to

infer these reasons from its previous order. Since the BIA cited both evidentiary and

jurisdictional concerns in April—i.e., no filing receipt, no authority over U Visa

petitions—yet declined to credit the filing receipt in December, we are left to

speculate whether the BIA’s “reasons for denial” in December were jurisdictional

rather than evidentiary.

Rather than speculate, we remand for clarification on two interconnected

issues. First, we ask the BIA to clarify its “reasons for denial” from the April

decision. As noted, the BIA suggested in its April order that it denied CaballeroMartinez’s motion for both evidentiary and jurisdictional reasons. Footnoted

language implied the missing filing receipt was substantively decisive, but the

vagueness of the main text’s language—that Caballero-Martinez “ha[d] not put

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forward an adequate basis to temporarily remove his case fromthe Board’s docket or,

if remanded, from the Immigration Judge’s active calendar”—leaves open the

possibility that his request was substantively inadequate in several respects but that

the BIA only chose to highlight the missing filing receipt. Pet’r’s Add. at 9. Reading

the April and December orders together, the reasons for the BIA’s decision not to

remand pending the U Visa’s adjudication are unclear.

Second, since Caballero-Martinez requested not only administrative closure but

also remand, we ask the BIA to explain its decision not to apply the Sanchez-Sosa

factors toCaballero-Martinez’s remand request in its December analysis. In short, we

ask the BIA to explain why it ultimately made no difference that Caballero-Martinez

included a U Visa filing receipt in his renewed motion when Sanchez-Sosa suggests

a completed application weighs in favor of pausing the removal process. 25 I. & N.

Dec. at 815.

III. Conclusion

The BIA’s April order is affirmed. The BIA’s December order is affirmed in

part and remanded in part for clarification consistent with the issue raised in this

opinion.

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