Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 22, 2023 _________________________________ Christopher M. Wolpert Clerk of Court GERARDO H. MUNOZ-MORALES,
Petitioner,
v. No. 21-9539 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McHUGH, and ROSSMAN, Circuit Judges. _________________________________
Gerardo H. Muñoz-Morales1 petitions for review of a decision by the Board of
Immigration Appeals (BIA) dismissing his appeal of an Immigration Judge’s (IJ)
denial of his application for cancellation of removal. We dismiss in part and deny in
part his petition for review.
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Although the Petitioner’s second last name is sometimes spelled “Moralez” in the record, we use “Morales” in this order and judgment, consistent with the vast majority of his filings and other documents in the record. Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 2
I. Background
Muñoz-Morales is a native and citizen of Mexico who was admitted to the
United States as a lawful permanent resident in May 1989. In August 2020, the
Department of Homeland Security issued a Notice to Appear alleging he was
removable as an alien convicted of two or more offenses for which the aggregate
sentences to confinement were five years or more. After admitting the allegations
and conceding he was removable as charged, Muñoz-Morales filed an application for
cancellation of removal under 8 U.S.C. § 1229b(a).
A. The IJ’s Decision
After a hearing at which Muñoz-Morales testified, the IJ denied his application
for cancellation of removal. The IJ found that he satisfied the statutory requirements
under § 1229b(a)(1)-(3). But after reviewing the record as a whole and weighing
Muñoz-Morales’s positive and negative factors, the IJ denied relief as a matter of
discretion.
The IJ noted the following positive factors in Muñoz-Morales’s case: his long
residency in the United States; his family ties in the United States, including his three
United-States-citizen adult children; his ownership of property in the United States;
his employment history and his employer’s favorable comments about his work; his
payment of income taxes; his religious practice; and his value and service to his
community. The IJ took note of Muñoz-Morales’s and his daughter’s testimony, as
well as letters from his daughter, one of his sons, and friends and neighbors.
2 Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 3
On the negative side of the scale, the IJ described Muñoz-Morales’s criminal
history, including five arrests for driving under the influence of alcohol (DUI), which
resulted in four DUI convictions in 2006, 2009, 2010, and 2017.2 In addition,
Muñoz-Morales had been apprehended by the Border Patrol in 2004 for transporting
illegal aliens, although he was not charged with any crime. In 2005, he was
convicted of criminal mischief related to an altercation with his then-wife. In
response to a question from the IJ, Muñoz-Morales acknowledged that he had driven
while intoxicated on more occasions than the five times that resulted in arrests. He
estimated he had done so on thirty occasions while living in the United States.
Pointing to that admission, his multiple DUI arrests during an eleven-year period, and
the minimal evidence he provided regarding completion of rehabilitation programs,
the IJ found that the evidence did not demonstrate that Muñoz-Morales had been
genuinely rehabilitated.
The IJ ultimately found that Muñoz-Morales’s positive equities were not so
significant as to counterbalance his serious and dangerous criminal conduct, and
therefore concluded he failed to show that he warranted a favorable exercise of
B. The BIA’s Decision
The BIA affirmed the IJ’s decision and dismissed Muñoz-Morales’s appeal. It
expressly stated that it considered the totality of his positive equities and
2 Muñoz-Morales’s first DUI arrest in 2001 resulted in pretrial diversion rather than a conviction. 3 Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 4
humanitarian factors present in the case. The BIA pointed to his long residence in
this country, his three adult children in the United States, his employment history and
filing of tax returns, and his religious participation. The BIA also “recognize[d] that,
as a result of his disability,3 his age, and other factors, it will be particularly difficult
for him to return to Mexico and re-establish himself in that country,” stating that
“[t]here can be little dispute that his removal will result in a significant level of
hardship to himself and his family.” R. at 3.
But the BIA said it could not ignore his criminal history, including his multiple
DUI convictions, which “are serious adverse factors.” Id. at 4 (citing the Attorney
General’s decision in Matter of Castillo-Perez, 27 I. & N. Dec. 664, 670 (A.G. 2019)
(stating that “an alien with multiple DUI convictions would likely be denied
cancellation of removal as a purely discretionary matter” because “[m]ultiple DUI
convictions are a serious blemish on a person’s record and reflect disregard for the
safety of others and for the law”)). The BIA also noted Muñoz-Morales’s candid
admission he had driven while intoxicated on approximately thirty occasions. While
it recognized that rehabilitation is not a requirement for relief, the BIA was “not
persuaded that he is rehabilitated.” Id. It acknowledged and considered
Muñoz-Morales’s “claims that, since March 2017, he has abstained from driving
under the influence of alcohol, completed court-ordered courses, and attended
3 Muñoz-Morales testified that he is disabled because he is missing two fingers on his left hand. See R. at 148. He further testified that he also has no right hand. See id. at 149. 4 Appellate Case: 21-9539 Document: 010110816181 Date Filed: 02/22/2023 Page: 5
Alcoholics Anonymous meetings,” and his presentation of letters of support attesting
to his rehabilitation. Id. But the BIA determined that, “[w]hile his efforts to
rehabilitate himself during the past few years are laudable, they do not overcome his
extensive decade-long history of drunk driving.” Id.
“[U]pon consideration of the totality of the record and a balancing of the
appropriate factors present in [Muñoz-Morales’s] case,” the BIA held that the IJ
“properly denied [his] application for cancellation of removal as a matter of
discretion . . . based upon the evidence and testimony.” Id. It determined that,
“[e]ven considering [his] recent rehabilitation efforts, the positive equities and
humanitarian factors remain significantly offset by his serious criminal history.” Id.
II. Discussion
The Attorney General may cancel the removal of a noncitizen permanent
resident who establishes that he “(1) has been an alien lawfully admitted for
permanent residence for not less than 5 years, (2) has resided in the United States
continuously for 7 years after having been admitted in any status, and (3) has not
been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a). In addition to these
statutory requirements, the noncitizen must also demonstrate that he warrants a
favorable exercise of discretion. See Patel v. Garland, 142 S. Ct. 1614, 1619 (2022)
(“Because relief from removal is always a matter of grace, even an eligible
noncitizen must persuade the immigration judge that he merits a favorable exercise of
discretion.” (internal quotation marks omitted)). The BIA affirmed the IJ’s denial of
Muñoz-Morales’s application for cancellation of removal as a matter of discretion.
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A. Jurisdictional Limitations
The government argues this court lacks jurisdiction over all of the issues raised
in Muñoz-Morales’s petition for review. Our jurisdiction depends on whether he
raises a constitutional claim or a question of law and whether he exhausted those
issues before the BIA.
1. Cancellation of Removal
Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to review “any
judgment regarding the granting of relief under section . . . 1229b.” This provision
denies us jurisdiction to review the discretionary aspects of a BIA decision
concerning cancellation of removal, including any underlying factual determinations.
See Galeano-Romero v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020). But under
another provision, we retain jurisdiction to review constitutional claims and questions
of law regarding cancellation of removal. See id. at 1182; see also § 1252(a)(2)(B)(i)
(precluding judicial review “except as provided in subparagraph (D)”);
§ 1252(a)(2)(D) (“Nothing in subparagraph (B) . . . which limits or eliminates
judicial review, shall be construed as precluding review of constitutional claims or
questions of law raised upon a petition for review filed with an appropriate court of
appeals in accordance with this section.”). We therefore lack jurisdiction in this case
unless Muñoz-Morales raises a constitutional claim or a question of law.
2. Failure to Exhaust
We also lack jurisdiction to review issues that Muñoz-Morales did not exhaust
before the BIA. We can review a final order of removal only if “the alien has
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exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.
§ 1252(d)(1). Available administrative remedies include motions to reconsider or
reopen filed with the BIA. See Sidabutar v. Gonzales, 503 F.3d 1116, 1122
(10th Cir. 2007) (concluding that challenges to “the BIA’s allegedly de novo
[fact]finding” were unexhausted because they “should have been brought before the
BIA in the first instance through a motion to reconsider or reopen”). The exhaustion
requirement is jurisdictional. See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.
1999).
The exhaustion rule “give[s] the agency the opportunity to correct its own
errors.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010).
Therefore, “[i]t is not enough to go through the procedural motions of a BIA appeal,
or to make general statements in the notice of appeal to the BIA, or to level broad
assertions in a filing before the Board.” Id. (internal quotation marks omitted).
Rather, “[t]o satisfy § 1252(d)(1), an alien must present the same specific legal
theory to the BIA before he or she may advance it in court.” Id. Thus,
Muñoz-Morales “may not add new theories seriatim as the litigation progresses from
the agency into the courts.” Id. at 1238.
We will address our jurisdiction as to each of the issues Muñoz-Morales
asserts in his petition for review.
B. Issues Raised in Petition for Review
Muñoz-Morales characterizes all of the issues he raises as constitutional
claims or questions of law. But “arguing that the evidence was incorrectly weighed,
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insufficiently considered, or supports a different outcome” does not raise a
constitutional claim or question of law. Kechkar v. Gonzales, 500 F.3d 1080, 1084
(10th Cir. 2007). And a contention that the agency failed to explicitly consider
certain evidence is properly viewed as a substantial-evidence argument, rather than a
constitutional claim. See Alzainati v. Holder, 568 F.3d 844, 851-52 (10th Cir. 2009).
Consequently, however characterized, we lack jurisdiction to review
Muñoz-Morelos’s challenges to the evidentiary support for the agency’s factual
findings and the BIA’s weighing of the evidence, as well as his arguments that the
BIA failed to consider certain evidence.
Muñoz-Morales nonetheless purports to raise the following issues: the BIA
erred by (1) reviewing the IJ’s factual findings de novo, (2) departing from its own
precedential decisions in exercising its discretion, and (3) failing to provide adequate
reasoning for its conclusion that the positive factors in his case did not outweigh his
serious criminal history. He also argues his detention during removal proceedings
deprived him of due process because he did not have a full and fair opportunity to
gather evidence regarding his rehabilitation.
1. Incorrect Standard of Review
Muñoz-Morales first argues that the BIA erred by reviewing the IJ’s factual
findings de novo, in contravention of 8 C.F.R. § 1003.1(d)(3)(i). Ordinarily,
pursuant to § 1252(a)(2)(D), “we have jurisdiction over a claim that the Board
applied the incorrect standard of review to an IJ’s factual determinations.”
Galeano-Romero, 968 F.3d at 1184. But we lack jurisdiction to review the issue in
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this case because Muñoz-Morales did not exhaust it by raising it in a motion to
reconsider or reopen filed with the BIA. See Sidabutar, 503 F.3d at 1122.
2. Misapplication of BIA Authority
Muñoz-Morales argues the BIA departed from its own precedential decisions
in exercising its discretion. We may review as a question of law whether the BIA
departed from its own adopted legal standards. See Galeano-Romero, 968 F.3d at
1184. We review such a contention de novo. See Alzainati, 568 F.3d at 851. But
Muñoz-Morales exhausted only one of his contentions.
Muñoz-Morales argued in his BIA appeal that the IJ erred by failing to
properly apply the BIA’s balancing test in concluding that he did not merit a
favorable exercise of discretion. R. at 18-19. This was so, he argued, because the
positive factors in his case far outweighed the negatives. Id. at 20. Muñoz-Morales
did not argue—as he does now—that BIA precedent precluded the agency’s reliance
on his admission that he drove while intoxicated on 30 occasions, or that the
evidence failed to demonstrate his lack of good moral character under the standards
in Matter of Castillo-Perez. Because he did not raise these contentions in his BIA
appeal or in a motion to reconsider or reopen, we lack jurisdiction to review them.
Muñoz-Morales did argue in his BIA appeal that, under the BIA’s precedent,
rehabilitation is not a prerequisite to a favorable exercise of discretion. See R. at 23
(citing Matter of Edwards, 20 I. & N. Dec. 191, 196 (B.I.A. 1990) (holding
rehabilitation is “a factor to be considered in the exercise of discretion” but is not “an
absolute prerequisite to a favorable exercise of discretion in every case involving an
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alien with a criminal record”)). But this claim fails because he does not demonstrate
that the BIA departed from this standard. The BIA explicitly recognized that
rehabilitation is not required. See R. at 4. It then found that “[e]ven considering
[Muñoz-Morales’s] recent rehabilitation efforts, the positive equities and
humanitarian factors remain significantly offset by his serious criminal history.” Id.
We lack jurisdiction to review Muñoz-Morales’s ultimate contention that the BIA
should have assigned more weight to his positive factors. See Kechkar, 500 F.3d
at 1084.
3. Inadequate Reasoning
Muñoz-Morales argues the BIA’s decision “failed to include sufficient
[rationale] supporting the conclusion that adverse factors of the case outweighed the
positive equities, or why the positive equities were not enough to outweigh any
adverse factor on the record.” Pet’r’s Br. at 26. He contends the BIA’s decision is so
lacking in analysis that it amounts to an abuse of discretion. See, e.g., Maatougui v.
Holder, 738 F.3d 1230, 1242-43 (10th Cir. 2013) (holding the BIA does not abuse its
discretion if its decision is sufficient for meaningful appellate review). But
Muñoz-Morales does not explain how this contention raises either a constitutional
claim or a question of law subject to our jurisdiction. We need not decide that issue
because we lack jurisdiction for a separate reason: Muñoz-Morales failed to exhaust
this issue in a motion to reconsider or reopen filed with the BIA.
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4. Due Process
Finally, Muñoz-Morales contends he was deprived of his right to due process
because his detention prevented him from having a full and fair opportunity to gather
evidence regarding his rehabilitation. Such a claim is reviewable under
§ 1252(a)(2)(D). See Abiodun v. Gonzales, 461 F.3d 1210, 1217 (10th Cir. 2006)
(distinguishing the petitioner’s detention-based due process claim from a reviewable
“claim that his detention prevented him from obtaining favorable evidence for the
proceedings”).
Muñoz-Morales asserts that he raised this due process claim in his BIA appeal,
but the BIA failed to rule on it. He argued in his appeal that his testimony and a
completion certificate from a rehabilitation program clearly established his
rehabilitation. R. at 21-22. He then added:
Respondent was detained through the proceedings; he relied on others to put his packet together. If he had been out of detention, he would have had more time and ability to gather more complete evidence. Given the realities of his detention, the Immigration Judge should not have been so quick to dismiss his Certificate of Completion as insufficient. Id. at 22. Muñoz-Morales did not explicitly assert a due process claim in his BIA
appeal, nor does the BIA appear to have recognized that he did so. But giving him
the benefit of the doubt as to exhaustion, we hold that his due process claim fails on
the merits.
A noncitizen “in removal proceedings is entitled only to . . . procedural due
process, which provides the opportunity to be heard at a meaningful time and in a
meaningful manner.” Alzainati, 568 F.3d at 851 (internal quotation marks omitted).
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“To prevail on a due process claim, an alien must establish not only error, but
prejudice.” Id. We review due process claims de novo. See Witjaksono v. Holder,
573 F.3d 968, 973-74 (10th Cir. 2009). Muñoz-Morales fails to demonstrate
prejudice by showing a reasonable likelihood that the outcome of his removal
proceeding would have been different but for his detention. See Molina v. Holder,
763 F.3d 1259, 1263 (10th Cir. 2014).
The IJ gave Muñoz-Morales twenty-six days to submit all of his evidence
supporting his application for cancellation of removal, including detailed affidavits
from himself and all other witnesses. See R. at 173. Muñoz-Morales submitted
seventy-five pages of evidence, including one completion certificate from a
rehabilitation program, id. at 286. He also submitted letters from family members
and others addressing their knowledge of his rehabilitation efforts. In his own
affidavit, he stated that he had stopped drinking in 2017 but he did not mention any
rehabilitation programming. Id. at 214. Muñoz-Morales’s counsel did not request a
continuance from the IJ to collect more evidence regarding his rehabilitation—based
upon his detention or otherwise. Nor did Muñoz-Morales testify that he had
additional documentation to offer regarding his rehabilitation efforts. In sum,
Muñoz-Morales has never indicated—before the IJ, the BIA, or this court—what
additional evidence he could have submitted were he not detained. He therefore fails
to demonstrate that he suffered any prejudice as a result of his detention.
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III. Conclusion
We dismiss Muñoz-Morales’s petition for review to the extent we lack
jurisdiction to consider the issues he raises. We otherwise deny his petition for
review.
Entered for the Court
Gregory A. Phillips Circuit Judge