Mario Tapia Bravo v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 30, 2024
• Docket: 24-3706
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0374n.06

Nos. 20-3318/4039/24-3108/3706

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Aug 30, 2024 KELLY L. STEPHENS, Clerk MARIO TAPIA BRAVO, ) ) Petitioner, ) ON PETITIONS FOR REVIEW ) v. FROM THE UNITED STATES ) BOARD OF IMMIGRATION ) MERRICK B. GARLAND, Attorney General, APPEALS ) Respondent. ) ORDER )

Before: BATCHELDER, WHITE, and STRANCH, Circuit Judges.

Mario Tapia Bravo petitions this court for review of an order of the Board of Immigration

Appeals (BIA) denying his motion to reopen his removal proceedings. This case has been referred

to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed.

Fed. R. App. P. 34(a). For the reasons below, we vacate in part and remand his petition for

review.

I.

During the course of his removal proceedings, Bravo’s army-enlisted daughter (and a

naturalized citizen) filed an I-130 visa petition on his behalf, and Bravo filed the supplementary

documents related thereto. Bravo states, and the government does not contest, that his I-130 visa

petition has since been approved, but it was not considered below.

An approved I-130 visa petition satisfies the requirement that an immigrant visa be

immediately available when the alien files his or her application, making the alien eligible for Nos. 20-3318/4039/24-3108/3706, Tapia Bravo v. Garland

adjustment of status. INS v. Miranda, 459 U.S. 14, 15 (1982) (per curiam); 8 U.S.C. § 1255(a).

We are mindful of the jurisdictional balance that we must strike in choosing whether to review a

motion to reopen. Hernandez-Perez v. Whitaker, 911 F.3d 305, 315 (6th Cir. 2018). But we also

recognize the “safety valve” role that this court holds, ensuring “that the BIA lives by its rules and

at least considers new information.” Id. (citing Pilica v. Ashcroft, 388 F.3d 941, 948 (6th Cir.

2004). Therefore, this matter is remanded with instructions to consider Bravo’s I-130 visa petition

and its effect on his removal proceedings.

Moreover, we are not convinced by the government’s position that Bravo has forfeited

claims related to his approved I-130 visa petition because of a supposed failure to exhaust his

claims. “Under the plain language of [8 U.S.C.] § 1252(d)(1), a noncitizen must exhaust all

administrative remedies available to the alien as of right.” Santos-Zacaria v. Garland, 598 U.S.

411, 424 (2023) (internal quotation marks omitted). However, discretionary remedies such as

“[c]ancellation of removal, voluntary departure, and adjustment of status” are not available as of

right. Id. at 426. So, the exhaustion requirement of § 1252(d)(1) does not apply here. “[B]ecause

§ 1251(d)(1) requires only exhaustion of remedies available as of right, . . . a noncitizen need not

exhaust discretionary remedies.” Id. at 425 (cleaned up).

II.

For the reasons explained, we vacate in part and remand Bravo’s petition for review for

further proceedings consistent with this order to consider the effect of Bravo’s I-130 visa petition

on his removal proceedings.

ENTERED BY ORDER OF THE COURT

__________________________________ Kelly L. Stephens, Clerk