                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                               August 31, 2012
                                   PUBLISH
                                                             Elisabeth A. Shumaker
                    UNITED STATES COURT OF APPEALS               Clerk of Court

                               TENTH CIRCUIT



 BALTAZAR ABEL SOSA-
 VALENZUELA,

               Petitioner,
          v.                                           No. 10-9592
 ERIC H. HOLDER, JR., United States
 Attorney General,

               Respondent.


          APPEAL FROM THE BOARD OF IMMIGRATION APPEALS


Mark R. Barr (Laura L. Lichter with him on the briefs), Lichter & Associates,
P.C., Denver, Colorado, for Petitioner.

Dara S. Smith, Office of Immigration Litigation (Tony West, Assistant Attorney
General, Civil Division, and David V. Bernal, Assistant Director, Office of
Immigration Litigation, with her on the brief), Department of Justice,
Washington, District of Columbia, for Respondent.


Before BRISCOE, Chief Circuit Judge, TYMKOVICH, Circuit Judge, and
EAGAN *, District Judge.


TYMKOVICH, Circuit Judge.




      *
        The Honorable Claire V. Eagan, District Judge, United States District
Court, Northern District of Oklahoma, sitting by designation.
       This appeal is before us a second time. Lacking a final order of deportation

in the prior appeal, we remanded to the BIA to cure the jurisdictional defect.

Sosa-Valenzuela v. Gonzales, 483 F.3d 1140 (10th Cir. 2007). The issues raised

in that case relating to the denial of a waiver of deportation are now properly

before us. In addition, on remand the petitioner applied for an adjustment of

status based on his marriage to an American citizen, and the denial of that request

is also at issue.

       Baltazar Sosa-Valenzuela illegally entered the United States from Mexico

in 1981 at the age of three, and became a lawful permanent resident in 1992. In

1994, when he was sixteen, he shot and seriously injured a gang member. He

pleaded guilty to attempted murder in the second degree and to unlawful

possession of a firearm by a juvenile. After a successful post-conviction

ineffectiveness of counsel petition, the state district court amended

Sosa-Valenzuela’s guilty plea to first degree assault and crime of violence with a

deadly weapon.

       In 1996, while Sosa-Valenzuela was in juvenile detention, the Immigration

and Naturalization Service, now the Department of Homeland Security (DHS)

issued Sosa-Valenzuela a show cause order, charging him as deportable because

of his criminal conviction under 8 U.S.C. § 1251(a)(2)(A)(ii). The immigration

proceedings were then delayed for several years, while Sosa-Valenzuela was

released and successfully completed his parole. Sosa-Valenzuela conceded

                                         -2-
deportability but requested a § 212 waiver which was then available as a form of

discretionary relief under federal law and an adjustment of status. 1 Both forms of

relief were granted by the IJ and then denied by the BIA.

      Sosa-Valenzuela now appeals the BIA’s decision and order of deportation

on three grounds: (1) He contests the procedural regularity of the BIA decision as

a collateral attack on the IJ’s waiver decision; (2) he challenges the merits of the

BIA’s decision to reverse the IJ’s waiver, arguing that it conflicts with the

Supreme Court’s decision in Judulang v. Holder, 132 S. Ct. 476 (2011); and (3)

he argues the BIA abused its discretion in denying him an adjustment of status

based on his marriage to an American citizen.

      We find the BIA was not precluded from reviewing the IJ’s waiver

decision, but we must remand to the BIA so that it may evaluate its decision in

light of the Supreme Court’s ruling in Judulang. We affirm the BIA’s

discretionary denial of adjustment of status.

                         I. Procedural Background

      This case has a lengthy procedural history, but a brief review of it is

necessary to understand Sosa-Valenzuela’s claims on appeal.




      1
        Section 212(c) of the Immigration and Nationality Act was repealed by
Pub. L. 104-208, Div. C., Title III, § 304(b), Sept. 30. 1996, 110. Stat. 3009-597.

                                         -3-
      IJ Proceedings

      While his deportation proceedings were pending, Sosa-Valenzuela

petitioned the Department of Justice Executive Office for Immigration Review for

a waiver from removal under the provisions of § 212(c) of the Immigration and

Nationality Act (INA). 8 U.S.C. § 1182(c) (repealed). At the time, § 212(c)

authorized the Attorney General, in his or her discretion, to grant waivers from

removal to deportable aliens who were long-time lawful residents of the United

States and met other eligibility criteria.

      After an evidentiary hearing, the immigration judge found that Sosa-

Valenzuela was eligible for a waiver and that the equities, particularly his

juvenile status at the time of his convictions, his community service, dependent

family in the United States, and lack of family in Mexico, supported the grant of

discretionary relief.

      Rather than file a direct appeal of the IJ’s decision, DHS filed a motion to

reconsider. It argued that the IJ’s decision was flawed because Sosa-Valenzuela

was no longer eligible for a § 212(c) waiver in light of new regulations adopted

shortly after the IJ’s decision, as well as its interpretation of the eligibility criteria

under preexisting regulations and case law. Those regulations codified and

clarified that relief under § 212(c) was only available to aliens who had pleaded

guilty or nolo contendre before April 1, 1997. Sosa-Valenzuela argued this

regulation did not apply to him because, although he entered an amended plea of

                                             -4-
guilty to lesser charges in December 1997 after his successful collateral attack,

the state court entered the plea nunc pro tunc December 19, 1994, well before the

§ 212(c) cut-off date. The IJ agreed with Sosa-Valenzuela, concluding the correct

date of the guilty plea was 1994, not 1997.

      Appeal to the BIA

      DHS appealed the denial of the motion to reconsider to the BIA. The BIA

sustained DHS’s appeal, granted the motion to reconsider, and vacated the IJ’s

§ 212(c) waiver.

      In ruling in favor of DHS, the BIA relied on its decision in Matter of

Brieva, 23 I. & N. Dec. 766 (BIA 2005), a case decided after the IJ’s decision to

deny the motion to reconsider and while DHS’s appeal was pending before the

BIA. Matter of Brieva held that aliens with a conviction for aggravated assault

(including Sosa-Valenzuela’s conviction for first degree assault) do not meet the

eligibility requirements for a § 212(c) waiver. Applying this interpretation to

Sosa-Valenzuela, the BIA denied the waiver.

      Tenth Circuit Appeal

      Sosa-Valenzuela appealed the BIA’s decision to this court, but we found

we lacked appellate jurisdiction because the record did not reveal that there had

ever been a final order of deportation. Sosa-Valenzuela v. Gonzales, 483 F.3d

1140 (10th Cir. 2007). We remanded the matter to the BIA “for a finding on




                                         -5-
deportability and disposition of any other outstanding issues in the case.” Id. at

1147. The BIA then remanded it to the IJ.

      Remand Before the IJ

      On remand, the IJ confirmed he entered a final order of deportation in 2004

when he made his initial ruling on the waiver but that order had not been included

in the record on appeal. After confirming the existence of an order of deportation

and his earlier waiver decision, the IJ went on to consider an additional ground

for a waiver of deportation—Sosa-Valenzuela had applied for an adjustment of

status to lawful permanent resident based on his marriage in 2001 to an American

citizen and the birth of his two children. The IJ granted this alternative form of

relief, finding that in the period since the initial waiver in 2004, Sosa-Valenzuela

“has had an excellent record . . . of employment, volunteer work, and taking care

of his family.” R. 90.

      Second Appeal to the BIA

      DHS appealed again, and again the BIA reversed. The BIA disagreed with

the IJ’s discretionary ruling, and, in re-weighing the equities, found that the

positive factors in Sosa-Valenzuela’s life did not outweigh the seriousness of his

prior felony conviction.

      Sosa-Valenzuela appealed, and both BIA’s denial of the § 212(c) waiver

and its denial of the adjustment of status are now before us in this appeal.




                                         -6-
                                II. Jurisdiction

      We have jurisdiction under 8 U.S.C. § 1252(a) because the BIA’s order

denying relief from removal is an appealable final order of removal. Infanzon v.

Ashcroft, 386 F.3d 1359 (10th Cir. 2004). Our review, however, is limited to

“constitutional claims or questions of law” because eligibility for relief from

removal is ordinarily an unreviewable matter of discretion under

8 U.S.C. § 1252(a)(2)(C) & (D). See Diallo v. Gonzales, 447 F.3d 1274, 1281

(10th Cir. 2006). We thus review the BIA’s legal determinations de novo, and we

do not review its exercise of discretion at all. Id. at 1279.

                                  III. Analysis

      This appeal requires us to resolve three questions. First, was the BIA

correct in determining it had the authority to reverse the IJ’s § 212(c) waiver

decision through the appeal of a motion to reconsider? Then, if so, was the BIA

correct in finding Sosa-Valenzuela was categorically ineligible for a waiver based

on the BIA’s decision in Matter of Brieva, decided while the appeal was pending

before the BIA? Third, did the BIA properly reject the IJ’s granting of an

adjustment of status based on Sosa-Valenzuela’s marriage to an American citizen?

      A. BIA Review of § 212(c) Waiver

      Sosa-Valenzuela first argues the IJ’s original granting of the § 212(c)

waiver was a final order that was not timely appealed by DHS. Thus, he



                                         -7-
contends, the BIA’s subsequent reversal of the waiver through an appeal of

DHS’s motion to reconsider was an impermissible collateral attack with no legal

effect.

          To understand this argument, a brief review of the procedural posture of the

case is helpful. Although DHS commenced deportation proceedings in 1997,

while those proceedings were pending Sosa-Valenzuela timely petitioned for a

§ 212(c) waiver. That waiver was granted on October 12, 2004. Two weeks

after that decision, DHS filed a motion to reconsider with the IJ. But while the

motion to reconsider was pending, the 30-day time to file a direct appeal of the

waiver decision with the BIA expired. The IJ then denied the motion to

reconsider, and DHS timely appealed that decision to the BIA. The BIA,

exercising de novo review, granted the motion for reconsideration and reversed

the IJ’s grant of the § 212(c) waiver. The BIA’s reversal was based on a

determination that Sosa-Valenzuala was ineligible for relief because of his prior

criminal conviction, relying on Matter of Brieva, 23 I. & N. Dec. 766 (BIA 2005),

a case the BIA decided while DHS’s appeal was pending.

          Based on this procedural situation, Sosa-Valenzuela makes two arguments.

First, the IJ’s waiver decision had become a final judgment because DHS did not

file a direct appeal, and, therefore, Sosa-Valenzuela’s § 212(c) waiver became a

vested right when the time to appeal expired. He also argues that even if the IJ’s

decision could be collaterally attacked through a motion for reconsideration, the

                                            -8-
BIA could only review the grounds for reconsideration raised in the motion, and

not the grounds the BIA ultimately relied on—a new precedent of the BIA.

      We find no error in the BIA’s decision on the appeal of the motion for

reconsideration. Although a “decision of the Immigration Judge becomes final

upon waiver of appeal or upon expiration of the time to appeal if no appeal is

taken whichever occurs first,” 8 CFR § 1003.39, the regulations also provide that

parties may ask for reconsideration of decisions by the IJ, generally within thirty

days of the “entry of a final administrative order.” 8 CFR § 1003.23(b)(1). Once

a timely motion for reconsideration has been filed, the IJ has broad discretion to

reconsider a prior decision:

      An Immigration Judge may upon his or her own motion at any time,
      or upon motion of the Service or the alien, reopen or reconsider any
      case in which he or she has made a decision, unless jurisdiction is
      vested with the Board of Immigration Appeals.

Id. DHS’s motion to the IJ, asking him to reconsider his ruling on Sosa-

Valenzuela’s § 212(c) waiver was proper under this regulation, and although the

motion to reconsider must “state the reasons for the motion by specifying the

errors of fact or law in the Immigration Judge’s prior decision” and “be supported

by pertinent authority,” there is no language in the regulations limiting the IJ’s

review to these specified errors. 8 CFR § 1003.23(b)(2). And it is worth noting,

if the IJ had denied the § 212(c) waiver, Sosa-Valenzuela could have moved for

reconsideration of the decision under the same provision, even after it became


                                          -9-
final for purposes of direct review to the BIA, if he did so within thirty days of

the final administrative order and before an appeal was lodged with the BIA. 8

CFR § 1003.23(b)(1).

      After the IJ denied DHS’s motion to reconsider, DHS timely appealed the

decision to the BIA. The BIA’s appellate jurisdiction is similarly broad: “The

Board may review questions of law, discretion, and judgment and all other issues

in appeals from decisions of immigration judges de novo.” 8 C.F.R.

§ 1003.1(d)(3)(ii). And even without a direct appeal, the BIA’s regulations grant

it wide jurisdiction to reconsider or reopen decisions in any case before it:

      The Board may at any time reopen or reconsider on its own motion
      any case in which it has rendered a decision. ... The decision to
      grant or deny a motion to reopen or reconsider is within the
      discretion of the Board, subject to the restrictions of this section.
      The Board has discretion to deny a motion to reopen even if the party
      moving has made out a prima facie case for relief.

8 C.F.R. § 1003.2(a) (emphasis added). Thus, the regulations allow DHS to seek

de novo review and reconsideration in the BIA. And the rules also allow the BIA

on its own motion to reconsider a decision, even one where a final administrative

order has been entered. As the BIA has held, “A motion to reconsider is a request

that the [IJ or BIA] reexamine its decision in light of additional legal arguments,

a change of law, or perhaps an argument or aspect of the case which was

overlooked.” Matter of Cerna, 20 I. & N. Dec. 399, 405 n. 2 (BIA 1991)

(quotation omitted). Thus, the BIA had authority to reconsider the IJ’s decision,


                                         -10-
either exercising its own discretion, or through appeal of a motion to reconsider

from the IJ.

      Notwithstanding these broad powers, Sosa-Valenzuela argues the BIA was

limited in its appellate review to the issue raised by DHS in its motion to

reconsider. While a motion to reconsider before the IJ must “state the reasons for

the motion by specifying the errors of fact or law in the Immigration Judge’s prior

decision,” 8 C.F.R. § 1003.23, the rules governing the BIA on appeal do not

preclude it from taking into account laws or authorities not addressed in the

motion before the IJ. Instead, the BIA has de novo authority to in effect “place[]

ourselves back in time and consider[] the case as though a decision in the case on

the record before us had never been entered.” Matter of Cerna, 20 I. & N. Dec.

399, 402–03 (BIA 1999). Thus, no procedural or substantive rule limits the

authority of the BIA to consider Sosa-Valenzuela’s status under its developing

case law at the time it considered DHS’s appeal of the motion for

reconsideration. 2

      “[T]he BIA is required to apply new law to its review.”

Valdiviezo-Galdamez v. Attorney General of United States, 663 F.3d 582, 602–03

(3d Cir. 2011) (holding that the BIA did not err in relying on new precedent not

briefed by either party to reject an asylum claim); see also Ortiz v. INS, 179 F.3d


      2
       We address the substantive problems with this decision in light of the
Supreme Court’s recent decision in Judulang below.

                                         -11-
1148, 1156 (9th Cir. 1999) ( holding “the BIA was required to apply the law

existing at the time of its review, even if different from the law applied by the

IJ”). 3

          Given the scope of the BIA’s appellate authority, Sosa-Valenzuela makes

several arguments, none of which we find persuasive. First, he argues that the

IJ’s § 212(c) decision became final after thirty days and the BIA lost any power

to review the merits of the decision. He points to the Supreme Court’s decision in

Stone v. INS, 514 U.S. 386 (1995), where the Court considered the scope of

federal court review of final orders from the BIA. In that case, the alien asked for

a suspension of deportation, which was denied by an Immigration Judge and the

BIA on appeal. After a motion for reconsideration, both the IJ and BIA again

denied relief. The alien then sought judicial review both of the original order

denying suspension and of the order denying the motion to reconsider. The

circuit court found it lacked appellate jurisdiction over the suspension order

because the time to seek judicial review had expired, but the court could exercise

jurisdiction over the timely filed motion to reconsider.




          3
         There are some limits on the retroactive application of newly developed
law. See, e.g., In re Mersmann, 505 F.3d 1033, 1051 (10th Cir. 2007) (en banc)
abrogated on other grounds by United Student Aid Funds, Inc. v. Espinosa, 130
S. Ct. 1367 (2010). But none of those limits apply here since the BIA had before
it a timely motion to reconsider, and DHS argues the decision was based on
preexisting regulations and case law.

                                         -12-
      The Supreme Court agreed, finding Stone’s original suspension order was

final and the alien should have sought judicial review in the federal courts even

while the motion to reconsider was pending. The Supreme Court rejected the

argument that a motion to reconsider tolled the period for seeking appellate

review.

      Stone does not impose any restrictions on the appellate jurisdiction of the

BIA. Instead, it applies to parties seeking judicial review of agency action in the

federal courts. As the applicable statute then provided, an appeal to the circuit

courts “shall be the sole and exclusive procedure for, the judicial review of all

final orders of deportation . . . made against aliens within the United States” and

“a petition for review may be filed not later than 90 days after the date of the

issuance of the final deportation order.” 8 U.S.C. § 1105a. (1988 ed., and Supp.

V.) (emphasis added). Congress could hardly have made it more clear that these

deadlines only apply to federal court jurisdiction.

      No comparable limitations exist on the BIA’s authority to administratively

review immigration appeals. Stone says nothing about the scope of the BIA’s

internal administrative process, and cannot be read to narrow the Board’s broad

authority, granted by statute and regulation. In fact, as a matter of administrative

practice and structure, immigration proceedings often involve dual appeals of

removal orders and motions to reconsider. As the regulations provide, both the IJ

and BIA may, upon motion or sua sponte, “reopen or reconsider any case” in

                                         -13-
which the judge or Board has made a decision. 8 CFR § 1003.23; 8 C.F.R.

§ 1003.2(a). And, similarly, there is no restriction on the substantive grounds the

IJ or BIA can use in evaluating a motion for reconsideration of a final order of

removal. 4

      Sosa-Valenzuela also points to a case from the Fifth Circuit to support his

argument that the BIA lost appellate jurisdiction over the waiver decision. In

Guevara v. Gonzales, 450 F.3d 173 (5th Cir. 2006), the petitioner was initially

successful in obtaining relief from deportation before the IJ. Two-and-a-half

years later, long after the time for filing a motion for reconsideration had expired,

the BIA went on to grant DHS’s motion to reconsider and reversed the IJ’s

decision. The circuit court found the BIA’s decision to reconsider was an

improper collateral attack on the original IJ decision. The court compared a

motion to reconsider before the BIA to a motion for relief from judgment

pursuant to Federal Rule of Civil Procedure 60(b) and a motion for new trial

pursuant to Federal Rule of Criminal Procedure 33 and found “[t]he analogy

indicates that a motion to reopen immigration proceedings is separate and apart

from direct review” and that because “the motion was a collateral attack on the

BIA’s decision, it was barred by res judicata.” Id. at 175–76.



      4
         Sosa-Valenzuela argues DHS’s appeal was “borderline frivolous,” but as
discussed above, the BIA application of its case law and regulations was well
within its authority in reviewing motions for reconsideration.

                                        -14-
      Guevara does not apply here. First, the motion to reconsider in that case

occurred over two years after the grant of relief had been decided by the BIA, and

did not involve a challenge to the decision of the IJ. Here, DHS’s motion to

reconsider was filed with the IJ who made the initial decision before the time to

file an appeal of the § 212(c) decision had expired, and sought the reversal of the

waiver decision. The administrative process was not yet complete and neither the

IJ or the BIA had issued any decision, let alone a final decision. This is far

different than the posture of the motion at issue in Guevara where the

administrative appeals process up to and including the BIA had been long

completed. 5

      Even if the BIA had the power to review the § 212(c) waiver decision,

Sosa-Valenzuela argues that these broad powers of collateral review violate his

due process rights. But in immigration proceedings, “a petitioner has no liberty

or property interest in obtaining purely discretionary relief.” Arambula-Medina v.

Holder, 572 F.3d 824, 828 (10th Cir. 2009) (citations omitted). “Because aliens

do not have a constitutional right to enter or remain in the United States, the only

      5
         Sosa-Valenzuela also points to the Fifth Circuit’s holding in
Hernandez-Rodriguez v. Pasquarell, 118 F.3d 1034 (5th Cir. 1997), which
declined to apply a regulation in the petitioner’s favor that the INS promulgated
after a deportation decision. In fact, the Fifth Circuit denied the application,
because, among other reasons, “there is the simple fact that Petitioner has never
sought [administrative] relief under the amended regulation,” even though the
immigration service “essentially invited Petitioner to file a new motion to reopen
and conceded that any such motion would be reviewed under the new
regulations.” Id. at 1041. There is no such default here.

                                         -15-
protections afforded are the minimal procedural due process rights for an

opportunity to be heard at a meaningful time and in a meaningful manner.” Id.

(quotation omitted). Sosa-Valenzuela has had the opportunity to be heard, and

“any alleged liberty interest [in discretionary immigration relief] must be created

by statute or regulation.” Id. “In order for the regulation to create a liberty

interest, it must substantively limit the exercise of official discretion through

specifically defined criteria that guide official decision making.” Aguilera v.

Kirkpatrick, 241 F.3d 1286, 1293 (10th Cir. 2001) (rejecting a due process

challenge to the BIA’s denial of a motion to reopen because “the regulation lacks

criteria or standards limiting official discretion”). There are no such limitations

here. 8 C.F.R. § 1003.2(a). The procedural issues that Sosa-Valenzuela raises are

matters of statutory and regulatory scope, and the BIA’s interpretation of its

appellate jurisdiction was not a denial of due process. 6

      In sum, we conclude the BIA had the de novo authority to review the IJ’s

waiver decision in an appeal of DHS’s motion for reconsideration.



      6
        Sosa-Valenzuela also suggests the BIA has limited its ability to review
§ 212(c) waivers by regulation, and “an approved section 212(c) application
cannot be subsequently revoked.” 8 C.F.R. § 1212.3(d). But the BIA has never
been asked to consider the application of this regulation to this case. It should
have the chance to do so in the first instance, and can do so on remand.
“Generally speaking, a court of appeals should remand a case to an agency for
decision of a matter that statutes place primarily in agency hands.” INS v.
Orlando Ventura, 537 U.S. 12, 16 (2002).


                                         -16-
       B. BIA’s Reversal of Section 212(c) Waiver

       Having found the BIA had the authority to consider the IJ’s waiver decision

on appeal, we turn to the merits of that decision. The BIA found that Sosa-

Valenzuela was not eligible for a § 212(c) waiver, applying Matter of Brieva, 23

I. & N. Dec. 766 (BIA 2005). In Matter of Brieva the BIA determined that waiver

applicants with convictions for an aggravated felony crime of violence are

categorically ineligible for § 212(c) relief, formally adopting the so-called

“comparable-grounds” rule, which “evaluates whether the ground for deportation

charged in a case has a close analogue in the statute’s list of exclusion grounds.”

Judulang, 132 S. Ct. at 481. 7 Under this approach, Sosa-Valenzuela was

ineligible for relief.

       After the BIA decided Matter of Brieva, its analysis generated conflicting

decisions in the circuit courts. The Second Circuit, for example, rejected the

comparable-grounds approach, see Blake v. Carbone, 489 F.3d 88, 103 (2d Cir.

2007), while the First, Third, and Sixth Circuits upheld the BIA’s policy, Kim v.

Gonzales, 468 F.3d 58, 62–63 (1st Cir. 2006); Caroleo v. Gonzales, 476 F.3d 158,




       7
         “Those mathematically inclined might think of the comparable-grounds
approach as employing Venn diagrams. Within one circle are all the criminal
offenses composing the particular ground of deportation charged. Within other
circles are the offenses composing the various exclusion grounds. When, but only
when, the ‘deportation circle’ sufficiently corresponds to one of the ‘exclusion
circles’ may an alien apply for § 212(c) relief.” Judulang, 132 S. Ct. at 482.

                                        -17-
162–163, 168 (3d Cir. 2007); Koussan v. Holder, 556 F.3d 403, 412–414 (6th Cir.

2009).

         While this appeal was pending, the Supreme Court granted certiorari to

resolve the circuit split, and ruled against the BIA. Judulang v. Holder, 132 S.

Ct. 476 (2011). In Judulang, the Court found that the BIA’s approach in Matter

of Brieva “does not rest on any factors relevant to whether an alien (or any group

of aliens) should be deported,” but “instead distinguishes among aliens—decides

who should be eligible for discretionary relief and who should not—solely by

comparing the metes and bounds of diverse statutory categories into which an

alien falls.” 132 S. Ct. at 487. This BIA policy has “no connection to the goals

of the deportation process or the rational operation of the immigration laws.” Id.

Accordingly, it was arbitrary and capricious under the Administrative Procedures

Act to rely on this approach to determine eligibility for relief from deportation.

The Supreme Court remanded Judulang to the BIA with instructions to develop

new criteria for determining who is eligible to apply for § 212(c) waivers. Id. at

490.

         In denying relief to Sosa-Valenzuela, the BIA relied on this now-rejected

approach. We asked for supplemental briefing on Judulang’s application here. In

their supplemental briefs the parties did not contest that the basis for the BIA’s

decision to deny the § 212(c) waiver is now legally untenable. The only dispute




                                         -18-
is whether it is necessary for us to remand this case to the BIA for an evaluation

of Sosa-Valenzuela’s application under the correct legal criteria.

      DHS asks us to find any further remand would be futile. A § 212(c) waiver

remains a discretionary remedy, and the BIA has already indicated its

unwillingness to exercise discretion in favor of Sosa-Valenzuela. We disagree.

“Generally speaking, a court of appeals should remand a case to an agency for

decision of a matter that statutes place primarily in agency hands,” and “[t]his

principle has obvious importance in the immigration context.” INS v. Ventura,

537 U.S. 12, 16 (2002). Remand is the preferred remedy because the BIA “can

bring its expertise to bear upon the matter; it can evaluate the evidence; it can

make an initial determination; and, in doing so, it can, through informed

discussion and analysis, help a court later determine whether its decision exceeds

the leeway that the law provides.” Id. at 16–17; See also Negusie v. Holder, 555

U.S. 511, 523 (2009).

      Remand may well lead to a predictable result in this case. Nonetheless,

“[b]ecause an agency has a duty not only to reach an outcome, but to explain that

outcome, we intrude on the agency’s authority not only by reaching a certain

result on the merits . . . but also by supporting a result reached by the agency with

reasoning not explicitly relied on by the agency.” Mickeviciute v. INS, 327 F.3d

1159, 1165 (10th Cir. 2003). We should not presume a result on remand, and

therefore “resist the temptation of stepping out of our limited judicial role even

                                        -19-
where resolving the merits ourselves may seem an easier, more efficient, and

more palatable course.” Id. 8

      It is up to the BIA in the first instance to apply its post-Judulang approach

to Sosa-Valenzuela’s request for a § 212(c) waiver. We therefore remand that

question to the BIA.

      C. Adjustment of Status

      The final issue is whether Sosa-Valenzuela is eligible for adjustment of

status on an alternate ground from his § 212(c) waiver—his 2001 marriage to an

American citizen.

      While Sosa-Valenzuela’s case was on remand, he applied for an adjustment

of status and relief from deportation, pursuant to 8 U.S.C. § 1255(a). Under that

provision, the status of an alien “may be adjusted by the Attorney General, in his

discretion” on the basis of a lawful marriage to an American citizen. Id. In

granting the adjustment of status, the IJ found that the equities favored Sosa-


      8
         The cases cited by DHS do not instruct to the contrary. In Cruz-Funez v.
Gonzales, 406 F.3d 1187 (10th Cir. 2005) we found that while the BIA’s decision
defied review we could proceed anyway because the IJ opinion, which the BIA
affirmed, was sufficiently clear that we could rely on its reasoning to affirm. In
another case, Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir. 2006), the
Second Circuit held there was no need to remand to the BIA when “overwhelming
evidence in the record makes it clear that the same decision is inevitable on
remand, or, in short, whenever the reviewing panel is confident that the agency
would reach the same result upon a reconsideration cleansed of errors.” But in
that case the legal error was only “tangential” to the BIA’s conclusion. Here, the
legal error was a central feature of the BIA’s decision, and we leave it to the
Board to apply the correct standard in the first instance.

                                        -20-
Valenzuela because of his marriage, family support, community involvement, and

employment.

      DHS appealed and once again the BIA reversed, exercising its authority to

review questions of discretion de novo, see 8 C.F.R. § 1003.1(d):

      Before the respondent may be granted adjustment of status, he must
      show that he merits such relief as a matter of discretion. We
      consider the existence of favorable factors such as family ties,
      hardship and length of residence in the United States. Where adverse
      factors are present, however, the respondent may need to present
      evidence of unusual or even outstanding equities . . . Indeed, even
      nonviolent aggravated felonies will generally constitute significant
      negative factors militating strongly against a favorable exercise of
      discretion.

R. 4–5 (citations omitted). Applying this standard, the BIA went on to evaluate

the equities and deny adjustment of status. It reviewed all of the favorable factors

supporting the IJ’s decision, including his family situation and efforts at

rehabilitation. But the BIA, in the end, found that although Sosa-Valenzuela

presented “many favorable equities, given the serious and violent nature of his

convictions, and the fact that he has been convicted for an aggravated felony, we

conclude that he does not merit a favorable exercise of discretion.” R. 5.

      Our review of the BIA’s decisions is limited, and we do not have

jurisdiction to review an exercise of discretion. Under 8 U.S.C. § 1252(a)(2)(C),

we only review “constitutional claims or questions of law.” Absent those types of

questions, “[n]otwithstanding any other provision of law . . . and regardless of

whether the judgment, decision, or action is made in removal proceedings, no

                                         -21-
court shall have jurisdiction to review[] (i) any judgment regarding the granting

of relief” for adjustment of status under § 1255. § 1252(a)(2)(B).

      It is true § 1252(a)(2)(B) does not prohibit review of non-discretionary

legal determinations. Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1149 (10th

Cir. 2005) (finding jurisdiction to review a non-discretionary decision “relating to

§ 1229b’s continuous physical presence requirement”). “The determination of

whether a particular decision is discretionary or non-discretionary is made on a

case-by-case basis.” Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 (10th Cir.

2005). “Decisions that involve a judgment call by the agency, or for which there

is no algorithm on which review may be based, are considered discretionary and

hence immune from review,” but “[d]ecisions for which there is a clear standard,

and for which no evaluation of non-discretionary criteria is required, by contrast,

may be considered non-discretionary and thus reviewable.” Id.

      Sosa-Valenzuela seeks to overcome the application of the jurisdiction-bar,

claiming that the BIA applied the wrong legal standard. He argues the BIA

misapplied its precedents in failing to weigh the positive equities more heavily

than the negative equities. But that is only another way of challenging the

Board’s discretionary conclusion, which we do not have jurisdiction to do.

      While the BIA did not explain the precise weight it gave to each factor, it is

clear the BIA applied a totality of the circumstances, individualized, case-specific

analysis to Sosa-Valenzuela’s application. That complies with BIA precedent:

                                        -22-
“In making discretionary determinations, we weigh the favorable and adverse

factors presented to decide whether on balance, the totality of the evidence before

us indicates that the respondent has adequately demonstrated that he or she

warrants a favorable exercise of discretion.” Matter of A- M-, 25 I. & N. Dec. 66,

76 (BIA 2009) (citations and quotations omitted).

      Even so, Sosa-Valenzuela argues that the BIA wrongly applied the

balancing standard it has developed for adjustment of status cases such as his. He

points to two cases he claims the BIA cited but should not have relied on—Matter

of Arai, 13 I & N Dec. 494 (BIA 1970), which addressed adjustments of status for

criminal aliens with adult, rather than juvenile, criminal records, and Matter of K-

A, 23 I. & N. Dec. 661 (BIA 2004), which dealt with a discretionary relief in

asylum cases. Whether or not the BIA properly relied on these cases, the

jurisdictional bar still applies: “Recasting challenges to factual . . .

determinations as due process or other constitutional claims, however, is clearly

insufficient to give this Court jurisdiction under § 1252(a)(2)(D),” and “[t]he

same holds true for petitioner’s assertion that the . . . BIA failed to apply what

[the alien] characterizes as controlling BIA precedent and regulations.”

Arambula-Medina v. Holder, 572 F.3d 824, 829 (10th Cir. 2009) (citation

omitted).

      And, in any event, the cases cited by Sosa-Valenzuela only illustrate how,

as a general matter, the BIA views competing equitable considerations. In Matter

                                          -23-
of Arai, for example, the BIA discussed the relative weighing of equitable factors,

positive and negative: “Where adverse factors are present in a given application,

it may be necessary for the applicant to offset these by a showing of unusual or

even outstanding equities”—exactly what the BIA did here. 13 I. & N. Dec. at

496. 9 And in citing Matter of K-A, the BIA was only noting that a history of

violent crime is an especially serious matter. But these precedents do not require

or preclude the BIA from weighing the equities as it did here. Instead the BIA

looked at all of the factors, both pro and con, and made a considered decision

denying relief.

      In sum, Sosa-Valenzuela cannot point to any precedent the BIA failed to

follow or misapplied in its discretionary review of his application for adjustment

of status. The Board thus did not commit legal error in its decision denying

adjustment of status based on marriage.




      9
         It is, moreover, “difficult and probably inadvisable to set up restrictive
guidelines for the exercise of discretion. Problems which may arise in
applications for adjustment must of necessity be resolved on an individual basis.
Where adverse factors are present in a given application, it may be necessary for
the applicant to offset these by a showing of unusual or even outstanding equities.
Generally, favorable factors such as family ties, hardship, length of residence in
the United States, etc., will be considered as countervailing factors meriting
favorable exercise of administrative discretion. In the absence of adverse factors,
adjustment will ordinarily be granted, still as a matter of discretion.” Matter of
Arai, 13 I & N Dec. at 495–96.

                                        -24-
                              IV. Conclusion

      For the reasons discussed above, we AFFIRM the BIA’s denial of

adjustment of status, and REMAND to the BIA for further proceedings regarding

the § 212(c) waiver.




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