USCA4 Appeal: 23-1723 Doc: 74 Filed: 12/18/2024 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 23-1723
FELIX JACOBO SALOMON-GUILLEN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: September 24, 2024 Decided: December 18, 2024
Before DIAZ, Chief Judge, and WILKINSON and BERNER, Circuit Judges.
Petition denied in part and dismissed in part by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Wilkinson and Judge Berner joined.
ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Craig Alan Newell, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Rebekah Nahas, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 23-1723 Doc: 74 Filed: 12/18/2024 Pg: 2 of 20
DIAZ, Chief Judge:
Felix Jacobo Salomon-Guillen petitions for review of a final order of removal of the
Board of Immigration Appeals. A temporary Board member—also called a Temporary
Appellate Immigration Judge—who had served multiple six-month terms participated in
his appeal. Salomon-Guillen asks us to decide whether such temporary judges’ terms are
renewable under the regulatory provision in effect during his administrative appeal. We
agree with the government that the answer is yes.
Salomon-Guillen also challenges the Board’s denial of his applications for a waiver
of inadmissibility and adjustment of status. But we lack jurisdiction over these issues. So
we dismiss that part of his petition.
I.
A.
Salomon-Guillen and his wife, the recording artist Lucia Parker Salomon, are from
El Salvador. They entered the United States in 2009. Parker Salomon entered the country
on an O-1 visa—reserved for individuals with extraordinary abilities or achievements—
and later became a naturalized citizen. Salomon-Guillen was admitted on an O-3 visa—
reserved for family members of O-visa holders—as Parker Salomon’s husband. He later
became a permanent resident. Salomon-Guillen was the manager of his wife’s music
career.
In January 2013, Salomon-Guillen began working as a marketing director for a book
publisher that HarperCollins later acquired. In that role, he issued marketing contracts to
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a company that he controlled, without HarperCollins’s knowledge of his interest in the
contractor. The contracts also inflated the value of the work performed. Salomon-
Guillen’s scheme cost HarperCollins about $1.4 million.
The government indicted Salomon-Guillen for wire fraud. He pleaded guilty and
was sentenced to 18 months’ imprisonment.
B.
Because Salomon-Guillen’s conviction is an aggravated felony as defined by the
Immigration and Nationality Act, the government sought to remove him from the country.
8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(M)(i). Salomon-Guillen conceded that he was
removable as charged, so he applied for adjustment of status under 8 U.S.C. § 1255(a).
That application, if granted, would give Salomon-Guillen lawful permanent resident status.
Since his conviction rendered him inadmissible to the United States and therefore ineligible
for adjustment of status, he also applied for an inadmissibility waiver under 8 U.S.C. §
1182(h).
The immigration judge denied Salomon-Guillen’s applications. The judge noted
that the only obstacle to Salomon-Guillen’s statutory eligibility for adjustment of status
was his wire fraud conviction, which could be overlooked if he received the inadmissibility
waiver he applied for. To get that waiver, Salomon-Guillen had to show that his removal
would “result in extreme hardship” to a qualifying relative who is a United States citizen
or lawful resident and that he merited a waiver in the exercise of the Attorney General’s
discretion. Id. § 1182(h)(1)(B).
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Salomon-Guillen claimed that his removal would cause hardship to his wife and his
mother, both of whom are citizens. Salomon-Guillen argued that his wife’s career would
suffer if he were not in the United States to serve as her manager, that they could not afford
to hire a manager to replace him, and that Parker Salomon wasn’t able to serve as her own
manager since, as the immigration judge put it, she lacked “the capacity to do things such
as contract negotiation.” J.A. 312.
Salomon-Guillen also argued that his wife would experience “emotional and
physical hardship” if he were removed. J.A. 312. She suffered from chronic mental health
issues and was in the middle of a high-risk pregnancy at the time of the proceedings before
the immigration judge. Salomon-Guillen argued that the medical care she could receive in
the United States was superior to what she could receive in El Salvador. Salomon-Guillen
also presented evidence that, were his wife to return with him to El Salvador, she would be
unable to earn a living as a singer and would fear for her safety due to her status as a
celebrity and familial ties to politicians belonging to the country’s minority party.
The immigration judge wasn’t convinced that the hardship to Parker Salomon
qualified as extreme. He found that whether Parker Salomon remained in the United States
or returned to El Salvador with Salomon-Guillen, the financial consequences were self-
inflicted. The immigration judge also found unpersuasive Parker Salomon’s assertions that
she required specialized medical care in the United States and feared for her safety in El
Salvador, reasoning that these claims relied on a series of hypotheticals.
As for Salomon-Guillen’s mother, Salomon-Guillen posited that she would
experience financial and emotional hardship if he were removed because she (1) would be
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unable to travel to El Salvador to visit him, (2) had suffered stress, anxiety, and insomnia
since being separated from her son, and (3) would lose her son’s financial support if he
were removed.
But here, too, the immigration judge was unpersuaded. The judge accepted that
Salomon-Guillen’s mother would “experience some financial and emotional hardship”
should her son be removed, but concluded that these consequences did not “rise to the level
of extreme hardship.” J.A. 317.
The immigration judge also concluded that, even assuming Salomon-Guillen had
met his burden to show extreme hardship, he wouldn’t merit an inadmissibility waiver in
the exercise of discretion because of the severity of his fraud offense and the fact that he
“failed to express regret toward his fellow employees and former employers at
HarperCollins, who suffered great financial harm due to [his] actions.” J.A. 319.
Likewise, the judge concluded that even if Salomon-Guillen received an inadmissibility
waiver and was therefore statutorily eligible for adjustment of status, he wouldn’t merit an
adjustment as a matter of discretion.
C.
The Board of Immigration Appeals affirmed in an opinion written by Temporary
Appellate Immigration Judge Denise G. Brown. The Attorney General appointed Judge
Brown to a six-month term under 8 U.S.C. § 1103(g)(1) and later reappointed her three
times. Judge Brown was serving her fourth six-month term when she served on the three-
judge panel that decided Salomon-Guillen’s case.
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The Board sustained the immigration judge’s finding that Salomon-Guillen’s
removal wouldn’t result in extreme hardship to Parker Salomon. 1 According to the Board,
Salomon-Guillen waived any argument that Parker Salomon would experience extreme
hardship if she were to remain in the United States since he failed to challenge that finding.
As a result, the Board considered only whether Parker Salomon would suffer extreme
hardship if she accompanied Salomon-Guillen to El Salvador. The Board concluded that
Salomon-Guillen failed to show that (1) Parker Salomon couldn’t earn a living as a singer
while living in El Salvador, (2) treatment for Parker Salomon’s medical issues would be
unavailable in El Salvador, or (3) Parker Salomon would be unable to take security
precautions to alleviate her safety concerns.
The Board also reviewed de novo whether Salomon-Guillen should receive an
inadmissibility waiver in the exercise of discretion. It concluded that the “positive
equities” Salomon-Guillen presented (including the time he spent in the United States, his
family ties to United States citizens, letters of support he submitted, and hardship to him
and his family) didn’t outweigh the negative equities of his case (his serious criminal
conduct). So the Board denied Salomon-Guillen’s applications.
This petition followed.
1 Salomon-Guillen didn’t raise the issue of hardship to his mother on appeal to the Board and does not do so here.
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II.
Salomon-Guillen first asks us to vacate the Board’s decision and remand for
consideration by a “properly appointed” Board member. Pet’r’s Br. at 10. We decline to
do so.
Under 8 C.F.R. § 1003.1(a)(4), temporary Board members may be appointed to
“adjudicate assigned cases.” The version of this regulation in effect when the Board
decided Salomon-Guillen’s administrative appeal authorized the Director of the Executive
Office for Immigration Review to make such appointments “for terms not to exceed six
months.” 2 8 C.F.R. § 1003.1(a)(4) (2022).
Salomon-Guillen argues that Judge Brown unlawfully served for longer than six
months when the Board decided his appeal. The government contests the substance of this
argument, but also challenges Salomon-Guillen’s ability to make it. We conclude that
Salomon-Guillen can indeed present this argument, but we find that it fails on the merits.
We begin with the government’s opposition to Salomon-Guillen’s ability to raise
his procedural challenge.
As with all regulations, the regulation establishing the temporary Board member
position was promulgated under the Administrative Procedure Act. This statute identifies
The regulation has since been amended to (1) clarify that the Attorney General 2
appoints temporary Board members, and (2) reflect that such members are appointed “for renewable terms not to exceed six months.” Expanding the Size of the Board of Immigration Appeals, 89 Fed. Reg. 22630, 22636 (Apr. 2, 2024) (emphasis added) (codified at 8 C.F.R. § 1003.1(a)(4)).
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two kinds of regulations. The first are “substantive” or “legislative-type” rules, which are
said to “have the force of law.” Chrysler Corp. v. Brown, 441 U.S. 281, 301–02 (1979).
The second are “interpretive rules, general statements of policy, or rules of agency
organization, procedure, or practice.” 5 U.S.C. § 553(b)(A).
The first category of rules must go through the typical notice-and-comment process
and generally “create[] new law or impose[] new rights or duties.” Child.’s Hosp. of the
King’s Daughters, Inc. v. Azar, 896 F.3d 615, 619–20 (4th Cir. 2018). The second category
need not.
Second category rules include agencies’ “internal house-keeping measures.” Am.
Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987) (internal quotation omitted).
These rules may be promulgated under 5 U.S.C. § 301, which authorizes regulations “for
the government of [a] department, the conduct of its employees, the distribution and
performance of its business, and the custody, use, and preservation of its records, papers,
and property.”
The government argues that the temporary Board member regulation falls into the
second category, and so doesn’t grant Salomon-Guillen rights that he can enforce. The
government contends that neither the Administrative Procedure Act nor the Immigration
and Nationality Act grants to Salomon-Guillen a “private cause of action” to enforce the
temporary Board member regulation. And it notes that versions of the regulation were
promulgated in part under § 301 without following notice-and-comment procedures. E.g.,
Board of Immigration Appeals: En Banc Procedures, 63 Fed. Reg. 31889, 31889 (June 11,
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1998) (“Compliance with 5 U.S.C. [§] 553 as to notice of proposed rulemaking . . . is not
necessary because this rule relates to internal agency procedure and practice.”).
Salomon-Guillen responds that his argument arises under the Immigration and
Nationality Act, which authorizes those subject to removal to file petitions for review in
the Courts of Appeals and preserves our jurisdiction over legal questions like his procedural
challenge. See 8 U.S.C. § 1252. The Administrative Procedure Act, in his view, is
irrelevant to his ability to challenge Judge Brown’s participation in his appeal before the
Board.
We need not wade into this battle of competing statutes. That’s because Salomon-
Guillen’s challenge is proper even if the Administrative Procedure Act governs. If (as the
government asserts) the regulation at issue rests partly on § 301, it still affects Salomon-
Guillen’s rights, which his challenge to Judge Brown’s appointment would vindicate.
“Where the rights of individuals are affected, it is incumbent upon agencies to
follow their own procedures.” Morton v. Ruiz, 415 U.S. 199, 235 (1974). Thus, “one under
investigation with a view to deportation is legally entitled to insist upon the observance of
rules promulgated by the [Attorney General] pursuant to law.” Bridges v. Wixon, 326 U.S.
135, 153 (1945) (quoting United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155
(1923)). Because the rules governing removal proceedings “are designed to protect the
interests of the alien and to afford him due process of law,” id. at 152, immigrants subject
to removal proceedings can properly argue that the proceedings against them are
procedurally flawed.
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The Fifth Circuit has applied Bridges to permit a petitioner to challenge the
appointment of temporary Board members. Mboba v. Garland, No. 21-60416, 2023 WL
4836671, at *8 (5th Cir. July 27, 2023); see also Carreon v. Garland, 71 F.4th 247, 252–
53 (5th Cir. 2023) (rejecting the government’s argument that the appointment regulation
governed internal agency procedures and concluding that a petitioner could challenge the
authority of a temporary Board member as ultra vires). We agree, and therefore proceed
to the merits of Salomon-Guillen’s challenge.
Before engaging with Salomon-Guillen’s argument, we briefly sketch out the
process for appointing temporary Board members.
The Board of Immigration Appeals is a creature of regulation. See Miscellaneous
Amendments to Chapter, 23 Fed. Reg. 9115, 9117 (Nov. 26, 1958). Those regulations
provide for the appointment of both permanent and temporary Board members. See 8
C.F.R. § 1003.1.
The version of § 1003.1 in effect when Salomon-Guillen’s appeal was decided
authorized the Director of the Executive Office for Immigration Review to designate
current and retired immigration judges and Board members “to act as temporary Board
members for terms not to exceed six months.” 8 C.F.R. § 1003.1(a)(4) (2022). This
provision also allowed the Director, “with the approval of the Deputy Attorney General,”
to “designate one or more senior [Executive Office for Immigration Review] attorneys” to
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“act as temporary Board members for terms not to exceed six months.” 3 Id. Temporary
Board members could fully participate in deciding cases but couldn’t vote in “any matter
decided by the Board en banc” or vote to designate a Board opinion as precedential. Id.;
id. § 1003.1(g)(3).
Although the Board and the position of temporary Board member were created by
regulation, the Attorney General by statute has
such authorities and functions under . . . all . . . laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review, on the day before the effective date of the Immigration Reform, Accountability and Security Enhancement Act of 2002.
8 U.S.C. § 1103(g)(1). 4 The Attorney General has broad power to delegate authority when
he “determines [the delegation] to be necessary for carrying out” his responsibilities under
§ 1103. Id. § 1103(g)(2).
3 The Attorney General appoints the Director of the Executive Office for Immigration Review. 8 C.F.R. § 1003.0(a). Until earlier this year, the regulation at issue in this case allowed the Director to appoint temporary Board members. See 8 C.F.R. § 1003.1(a)(4) (2022). In practice, however, the Attorney General appointed them himself. Expanding the Size of the Board of Immigration Appeals, 89 Fed. Reg. at 22632. The regulation now reflects that the Attorney General makes the appointments. 8 C.F.R. § 1003.1(a)(4) (2024). 4 Congress never enacted the Immigration Reform, Accountability and Security Enhancement Act of 2002, which Salomon-Guillen claims matters when considering the validity of Judge Brown’s reappointment. As we explain, his argument is wrong.
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The Attorney General appointed Judge Brown (citing 8 U.S.C. § 1103(g)(1)) for a
six-month term and then reappointed her to three more consecutive terms. Salomon-
Guillen argues that Judge Brown couldn’t continue serving as a temporary Board member
after her first six-month term expired. He relies on the version of the temporary Board
member regulation in effect when his administrative appeal was decided, which stated that
Temporary Appellate Immigration Judges may serve “for terms not to exceed six months.”
8 C.F.R. § 1003.1(a)(4) (2022).
We reject this argument.
1.
To begin, the regulation in force when Salomon-Guillen appealed to the Board
didn’t apply to the Attorney General. 5 By its express terms, the provision described how
the Executive Office for Immigration Review Director could appoint temporary Board
members. 8 C.F.R. § 1003.1(a)(4) (2022). As three of our sister circuits have held, nothing
in the regulation’s text limits the Attorney General’s independent statutory power to
delegate his authority under the immigration laws, as he did when he appointed Judge
5 The government raised this argument for the first time in a Rule 28(j) letter. Although we normally don’t consider arguments raised in this posture, we “deviate from this rule in appropriate circumstances.” United States v. Cisson, 33 F.4th 185, 191 (4th Cir. 2022). We do so here, because (1) the Rule 28(j) letter directed our attention to an opinion issued after the government’s brief was filed, (2) the opinion bears directly on the issue before us, (3) Salomon-Guillen responded to the letter and provided his argument on the significance of the case discussed, (4) the factual issues are fully developed, and (5) the legal analysis the letter raises is straightforward. See United States v. Holness, 706 F.3d 579, 592–93 (4th Cir. 2013).
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Brown under 8 U.S.C. § 1103(g). Bernardo-De La Cruz v. Garland, 114 F.4th 883, 891–
92 (7th Cir. 2024); Punin v. Garland, 108 F.4th 114, 128–29 (2d Cir. 2024); Rivera v.
Garland, 108 F.4th 600, 606 (8th Cir. 2024).
Salomon-Guillen notes that the Attorney General cited § 1103(g)(1) when he
appointed Judge Brown. That section grants the Attorney General the powers that “were
exercised by the Executive Office for Immigration Review . . . on the day before the
effective date of the Immigration Reform, Accountability and Security Enhancement Act
of 2002.” 8 U.S.C. § 1103(g)(1). Because that act failed to pass, Salomon-Guillen suggests
that (g)(1) never took effect.
Even if Salomon-Guillen is right about the validity of § 1103(g)(1) (a question we
don’t decide here), his argument still fails. Salomon-Guillen ignores that Congress
separately gave the Attorney General the power to “delegate . . . authority” that the
Attorney General “determines to be necessary for carrying out” his statutory powers. 8
U.S.C. § 1103(g)(2). Salomon-Guillen doesn’t challenge the Attorney General’s authority
over removal cases or the Executive Office for Immigration Review, and we have no
trouble concluding that the Attorney General could delegate that authority to Judge Brown
under § 1103(g)(2). Punin, 108 F.4th at 128–29; Bernardo-De La Cruz, 114 F.4th at 892.
2.
We could end our analysis there. But even if we indulged Salomon-Guillen and
supposed that the Attorney General was bound by 8 C.F.R. § 1003.1(a)(4), we would reject
Salomon-Guillen’s interpretation of that regulation.
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According to Salomon-Guillen, the word “terms” in the regulation is plural because
it modifies “temporary Board members,” which is itself plural. In his view, we shouldn’t
infer that temporary Board members’ terms are renewable simply based on the use of the
plural word “terms.” The problem for Salomon-Guillen is that the inference he would have
us draw is inconsistent with the broad delegation authority granted to the Attorney General
under § 1103(g)(2).
Salomon-Guillen next points to the separate regulation providing for the
appointment of temporary immigration judges, which expressly allows such judges to be
appointed to “renewable terms not to exceed six months.” 8 C.F.R. § 1003.10(e)(1) (2021).
The contrast between the two regulations, says Salomon-Guillen, means that the Attorney
General’s ability to appoint temporary Board members isn’t coextensive with his power to
appoint temporary immigration judges.
Applying our “standard tools of interpretation,” that is, the text, structure, history,
and purpose of § 1003.1(a)(4), we do not agree that omission of “renewable” from the
temporary Board member provision makes a difference. Kisor v. Wilkie, 588 U.S. 558,
573, 575 (2019).
Start with the text. The regulation applicable to Salomon-Guillen’s administrative
appeal authorized the appointment of “temporary Board members for terms not to exceed
six months.” 8 C.F.R. § 1003.1(a)(4) (2022). This language doesn’t restrict the power to
appoint the same person to multiple consecutive terms. As a sister circuit has aptly noted,
“[t]here is no ambiguity in the text of the regulation; it simply does not address the issue
of additional terms.” Rivera, 108 F.4th at 606.
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The structure, too, runs contrary to Salomon-Guillen’s position. Although the
regulation permitted temporary Board members to participate in cases warranting three-
member panels, the time limit for disposing of such cases was 180 days (about six months),
which could be extended. 8 C.F.R. § 1003.1(e)(8)(i)–(ii) (2022). It would make no sense
for the regulation to allow temporary Board members to participate in cases assigned to
three-member panels but require their service to conclude before those cases might be
decided.
Resisting this view, Salomon-Guillen points to the history of the regulations
authorizing temporary immigration judges and temporary Board members. But that history
supports the government’s reading of the regulations.
The temporary Board member provision was enacted first. In its original form, the
regulation authorized the appointment of temporary Board members “for whatever time
. . . deem[ed] necessary.” Executive Office for Immigration Review; Board of Immigration
Appeals; Designation of Judges, 53 Fed. Reg. 1,659, 1,660 (May 3, 1988). For reasons not
stated in the record, it was later changed to limit temporary Board members’ terms to six
months. Board of Immigration Appeals: En Banc Procedures, 63 Fed. Reg. at 31890.
Even so, agency practice reveals that the terms of temporary Board members have
been routinely renewed beyond the first six-month term. See, e.g., Press Release, Off. of
Pub. Affs., Attorney General Holder Appoints New Member to the Board of Immigration
Appeals (Aug. 3, 2009), https://www.justice.gov/opa/pr/attorney-general-holder-appoints-
new-member-board-immigration-appeals [https://perma.cc/6LMY-ZTJV] (stating that
Judge John H. Guendelsberger served as a temporary Board member from May 2007 until
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July 2009); Press Release, Exec. Off. for Immigr. Rev., EOIR Swears in Eight Immigration
Judges (Mar. 16, 2016), https://www.justice.gov/eoir/pr/eoir-swears-eight-immigration-
judges [https://perma.cc/HE5S-545N] (stating that Judge Elise Manuel served as a
temporary Board member from 2012 until 2016).
The Attorney General promulgated the temporary immigration judge provision at
issue in 2014. Designation of Temporary Immigration Judges, 79 Fed. Reg. 39953, 39956
(July 11, 2014). And it’s true that the text allows for the appointment of eligible individuals
“to act as temporary immigration judges for renewable six-month terms.” Id. at 39,954
(emphasis added). But we reject the notion that by enacting this regulation, the Attorney
General intended to undo decades of agency practice as to the appointment of temporary
Board members. Indeed, had the Attorney General done so without explanation or
justification, his actions would likely have been arbitrary and capricious. See Bedford
Cnty. Mem’l Hosp. v. Health & Hum. Servs., 769 F.2d 1017, 1022 (4th Cir. 1985).
In fact, the recent amendment of the temporary Board member provision
underscores that the Attorney General always intended for the terms of temporary Board
members to be renewable. The amendment’s preamble explains that it was the long-held
understanding of the agency that temporary Board members’ terms were renewable and
that the addition of the term “renewable” to the regulation was “in the interest of clarity.”
Expanding the Size of the Board of Immigration Appeals, 89 Fed. Reg. 22630, 22631 (Apr.
2, 2024). This clarifying amendment only confirms our view of the relevant history.
We conclude that the version of 8 C.F.R. § 1003.1(a)(4) in effect when Salomon-
Guillen appealed to the Board didn’t apply to the Attorney General or otherwise limit his
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ability to appoint temporary Board members. And we hold that this regulation authorized
Judge Brown’s reappointment as a temporary Board member in any event. See Carreon,
71 F.4th at 253–54 (rejecting an argument that § 1003.1(a)(4) prevents a temporary Board
member from serving multiple terms); Brito v. Garland, 40 F.4th 548, 553 (7th Cir. 2022)
(same).
It follows that Judge Brown could lawfully participate in the adjudication of
Salomon-Guillen’s case. 6
III.
Next, we consider whether we may review the Board’s denial of Salomon-Guillen’s
application for an inadmissibility waiver. We may not.
An otherwise inadmissible alien can obtain a waiver of inadmissibility under 8
U.S.C. § 1182(h). To obtain such a waiver, the applicant must show “to the satisfaction of
the Attorney General” that “denial of admission would result in extreme hardship to [his]
United States citizen . . . spouse, parent, son, or daughter.” 8 U.S.C. § 1182(h)(1)(B).
6 Salomon-Guillen also challenges the policy implications of our conclusion, complaining that authorizing renewable terms “would make [temporary Board] members far more susceptible to political pressures from within the department.” Pet’r’s Br. at 17. But to the extent that someone might be inclined to curry favor with the Attorney General to secure a temporary Board member appointment, that’s as likely to happen before the first appointment as it is during reappointments. In any event, we must look at the regulation’s “plain meaning,” not matters of policy. BP P.L.C. v. Mayor of Baltimore, 593 U.S. 230, 246 (2021).
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Additionally, the applicant must show that he merits a discretionary waiver. See Boggala
v. Sessions, 866 F.3d 563, 570 (4th Cir. 2017).
We lack jurisdiction to review “any judgment regarding the granting of relief under
[§] 1182(h).” 8 U.S.C. § 1252(a)(2)(B)(i). But we retain jurisdiction to consider
“constitutional claims or questions of law.” Id. § 1252(a)(2)(D).
The Board reviewed the immigration judge’s findings de novo and concluded that
Salomon-Guillen failed to show “that his waiver of inadmissibility should be granted as a
matter of discretion” given the equities of the case. J.A. 7. That conclusion is a
discretionary determination over which we lack jurisdiction.
Salomon-Guillen argues that the jurisdictional bar does not matter. He says that the
“extreme hardship” requirement is a statutory eligibility requirement that presents a
reviewable mixed question of law and fact. See Guerrero-Lasprilla v. Barr, 589 U.S. 221,
227 (2020) (“questions of law” include “mixed questions of law and fact” like whether
given facts satisfy a legal standard).
He contends that, if we were to agree with him that he proved extreme hardship,
then the satisfaction of the requirement would be a positive equity that the Board would
need to consider on remand when choosing to exercise its discretion. He relies on language
from a Board opinion suggesting that an extreme hardship finding is a “favorable
discretionary factor to be considered” when weighing the merits of an application for an
inadmissibility waiver. Mendez-Moralez, 21 I. & N. Dec. 296, 301 (B.I.A. 1996) (en banc).
Salomon-Guillen’s reliance on Mendez-Moralez is misplaced. The language he
cites, in context, shows that the Board need not make an extreme hardship finding to deny
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an inadmissibility waiver application on discretionary grounds. That is, while extreme
hardship may be a “favorable” factor, “an application for discretionary relief, including a
waiver under [8 U.S.C. § 1182(h)], may be denied in the exercise of discretion without
express rulings on the question of statutory eligibility.” Id.; see Patel v. Garland, 596 U.S.
328, 332 (2022) (explaining that an immigration judge “need not address eligibility at all”
if he or she would still deny a request for relief as a matter of discretion).
Salomon-Guillen would have us direct the Board to make an express ruling on
extreme hardship in every case, since failing to do so could impact the equities of a
discretionary denial. This reading of Mendez-Moralez proves too much and renders hollow
the decision’s own holding that express findings on extreme hardship are not necessary.
See Henry v. Mukasey, 264 F. App’x 62, 64 (2d Cir. 2008) (rejecting the argument that the
Board was “required to determine whether . . . removal would create an extreme
hardship . . . in order to weigh all the relevant equities”).
Whether assessing extreme hardship or weighing the equities of removal to make a
discretionary decision, the Board considers the same record. In this light, the only reason
that an express extreme hardship finding could matter as to the discretionary analysis is
that it bears the label “extreme.” At bottom, then, Salomon-Guillen’s argument goes to the
weight that the Board gave to his evidence, which “presents a garden-variety abuse of
discretion argument . . . that does not amount to a legal question.” Cobos-Gonzales v. U.S.
Att’y Gen., 542 F. App’x 772, 774–75 (11th Cir. 2013).
Salomon-Guillen hasn’t raised a “constitutional claim[] or question[] of law.” 8
U.S.C. § 1252(a)(2)(D). He directly challenges the Board’s discretionary decision not to
19 USCA4 Appeal: 23-1723 Doc: 74 Filed: 12/18/2024 Pg: 20 of 20
grant him an inadmissibility waiver based on the equities of his case. Because the Board
denied Salomon-Guillen’s application as a “matter of grace,” we have no power to review
that decision. Patel, 596 U.S. at 332; see Wilkinson v. Garland, 601 U.S. 209, 225 n.4
(2024) (explaining that, since cancellation of removal is discretionary, an immigration
judge’s ultimate decision on cancellation “is not reviewable as a question of law”).
IV.
For these reasons, we deny the petition for review as to Salomon-Guillen’s
challenge to the procedural validity of the Board’s action and dismiss the rest of the
petition.
PETITION DENIED IN PART AND DISMISSED IN PART