                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2601
                                No. 18-3202
                        ___________________________

                          Carlos Enrique Urrutia Robles

                             lllllllllllllllllllllPetitioner

                                           v.

              William P. Barr, Attorney General of the United States

                           lllllllllllllllllllllRespondent
                        ___________________________

                       Petition for Review of Orders of the
                          Board of Immigration Appeals
                                  ____________

                             Submitted: June 11, 2019
                              Filed: October 8, 2019
                                  ____________

Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       The Department of Homeland Security (“DHS”) placed Carlos Enrique Urrutia
Robles, a native and citizen of Mexico, in removal proceedings following his arrest
for injuring a pedestrian while driving under the influence. Urrutia conceded
removability and applied for cancellation of removal. See 8 U.S.C. § 1229b. The
Immigration Judge (“IJ”) granted relief, and DHS appealed. Reviewing the IJ’s
discretionary determination de novo, the Board of Immigration Appeals (“BIA”)
denied cancellation, ordered Urrutia removed to Mexico, and subsequently denied his
timely motion to reopen proceedings. Urrutia petitions for review of both BIA orders.
We deny the petitions for review.

       The Attorney General may grant discretionary cancellation of removal to a non-
permanent resident if he has been continuously present in this country for ten years;
has been a person of good moral character; has not been convicted of enumerated
criminal offenses; and shows that his removal “would result in exceptional and
extremely unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1).
Congress has limited our jurisdiction to review the Attorney General’s exercise of this
discretionary authority, § 1252(a)(2)(B)(i), but we may review “constitutional claims
or questions of law,” § 1252(a)(2)(D). We lack jurisdiction if the petitioner seeking
review has “attempted to create jurisdiction by cloaking an abuse of discretion
argument in constitutional or legal garb.” Hernandez-Garcia v. Holder, 765 F.3d 815,
816 (8th Cir. 2014) (quotation omitted).

      After a removal hearing, the IJ found that Urrutia satisfied the four eligibility
requirements of § 1229b(b)(1). Turning to whether the attorney general’s discretion
should be exercised, the IJ noted that Urrutia has “significant negative factors,”
including two DUI convictions in 1996 and 2004, “continued issues with alcohol,”
and a pending DUI charge after he struck a pedestrian who suffered “significant
traumatic brain injury.” However, the IJ concluded that these negative factors were
outweighed by positive factors, including that Urrutia “appears committed to
resolving his problems with alcohol,” and granted Urrutia § 1229b relief.

      DHS appealed to the BIA, arguing the IJ “erred by granting [Urrutia’s]
application for cancellation of removal as a matter of discretion.” The BIA sustained
the DHS appeal. After correctly stating the applicable standard of review, the BIA
discussed in detail the positive and negative factors relevant to whether Urrutia

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warranted exercise of the Attorney General’s discretion. Reviewing the IJ’s exercise
of discretion de novo, the BIA concluded that Urrutia’s “repeated incidents of driving
under the influence of alcohol and his lack of rehabilitation are simply too serious to
warrant relief in the exercise of discretion.” Urrutia filed a timely motion to reopen
the proceedings, submitting new evidence that he completed alcohol rehabilitation
programs and letters of support from rehabilitation supervisors. The BIA denied the
motion to reopen, explaining that Urrutia’s new evidence of “his resolve to live a
sober life, is insufficient to overcome the recency and seriousness of his criminal
record.” Urrutia petitions for review of both adverse decisions.

                           I. The BIA’s Initial Decision.

       The Attorney General’s procedural regulations provide that the BIA reviews
“findings of fact determined by an immigration judge” for clear error but reviews
“questions of law, discretion, and judgment and all other issues in appeals” de novo.
8 C.F.R § 1003.1(d)(3). This regulation instructs that the BIA “not engage in
factfinding in the course of deciding appeals.” § 1003.1(d)(3)(iv). Urrutia argues the
BIA’s initial decision violated this governing standard of review by reviewing the IJ’s
implicit “predictive finding” of future rehabilitation de novo and substituting the
BIA’s contrary findings regarding rehabilitation.

       This procedural regulation was adopted in September 2002 “to restrict the
introduction and consideration of new evidence in proceedings before the BIA . . . not
the reevaluation of evidence obtained by the IJ previously.” Belortaja v. Gonzalez,
484 F.3d 619, 625 (2d Cir. 2007) (cleaned up); accord Lin v. Mukasey, 517 F.3d 685,
692 n.10 (4th Cir. 2008). “The regulation was not intended to restrict the BIA’s
powers of review, including its power to weigh and evaluate evidence introduced
before the IJ.” Rotinsulu v. Mukasey, 515 F.3d 68, 73 (1st Cir. 2008).




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       Here, the BIA in its initial decision did not reject the IJ’s findings of fact,
including what Urrutia describes as an implicit “predictive finding” that Urrutia “is
committed to resolving his problems with alcohol.” The IJ explicitly weighed
Urrutia’s efforts at rehabilitation as a positive factor in the exercise of discretion.
Evaluating the same record, but placing greater weight on evidence not discussed in
the IJ’s decision, the BIA concluded Urrutia “has not shown that he has been
rehabilitated” from his “serious history of driving under the influence of alcohol.”
Therefore, the BIA explained, his sporadic efforts to stop drinking did not outweigh
his lengthy criminal history, including the recent incident in which he seriously
injured a pedestrian. The BIA did not evaluate any evidence not in the record before
the IJ. It simply weighed and evaluated that evidence and came to a different
conclusion regarding exercise of the Attorney General’s discretion, an issue the BIA
reviews de novo under 8 C.F.R § 1003.1(d)(3). Thus, rather than presenting a
colorable question of legal error, Urrutia “really challenges the discretionary
conclusion of the BIA against him,” a challenge that is beyond our jurisdiction. Solis
v. Holder, 647 F.3d 831, 833 (8th Cir. 2011), cert. denied, 565 U.S. 1114 (2012); see
Wallace v. Gonzalez, 463 F.3d 135, 141 (2d Cir. 2006).

                       II. Denial of the Motion to Reopen.

       The Attorney General’s regulations grant the BIA discretion to grant a timely
motion to reopen. 8 C.F.R. § 1003.2. Although 8 U.S.C. § 1252(a)(2)(B)(i) limits
our jurisdiction to review the Attorney General’s exercise of his statutory discretion
to grant cancellation of removal, the Supreme Court has confirmed that this statute
did not remove the long-exercised judicial authority to review the BIA’s denial of an
alien’s motion to reopen under a deferential abuse of discretion standard. Kucana v.
Holder, 558 U.S. 233, 242, 253 (2010).

     There are at least three independent grounds on which the BIA may deny a
motion to reopen. Poniman v. Gonzales, 481 F.3d 1008, 1011 (8th Cir. 2007). Two

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grounds are not at issue in this case -- the movant has failed to establish a prima facie
case for the relief sought, or has not supported the motion to reopen with previously
unavailable, material evidence. This case involves the third ground: “in cases in
which the ultimate grant of relief is discretionary . . . the BIA may leap ahead, as it
were, over the two threshold concerns . . . and simply determine that even if they were
met, the movant would not be entitled to the discretionary grant of relief.” INS v.
Abudu, 485 U.S. 94, 105 (1988). “Given the subsequently passed jurisdiction-
stripping provisions of § 1252, there may be some question as to whether our
jurisdiction still extends” to review of the denial of a motion to reopen a cancellation-
of-removal proceeding based on this third ground. Vargas v. Holder, 567 F.3d 387,
390 n.6 (8th Cir. 2009). That is particularly true in this case because, unlike the
petitioner in Vargas, Urrutia also petitioned for review of the decision that his motion
sought to reopen, and we have concluded that we lack jurisdiction to review the
merits of that initial decision. However, we assume without deciding that we have
jurisdiction to review for abuse of discretion the BIA’s denial of his motion to reopen.

       Urrutia argues the BIA abused its discretion in denying his motion to reopen
instead of remanding to the IJ to consider his new evidence of rehabilitation. Unlike
the issue presented in Vargas, Urrutia did not move to reopen based on “new evidence
[that] provides a completely new basis for seeking cancellation of removal.” Id. at
390. Rather, he simply urged the BIA to remand so the IJ could consider stronger
evidence of rehabilitation to support his initial claim for discretionary relief. The BIA
denied the motion because Urrutia failed to satisfy his burden to show that this new
evidence “would likely change the result in the case.” The BIA explained that
Urrutia’s “proffered evidence . . . is insufficient to overcome the recency and
seriousness of his criminal record.” Contrary to Urrutia’s contention on appeal, the
BIA “followed its established policy.” Vargas, 567 F.3d at 391, citing Matter of
Coelho, 20 I. & N. Dec. 464, 472–72 (BIA 1992).




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       Motions to reopen removal proceedings are disfavored because of “the strong
public interest in bringing litigation to a close.” Gebremaria v. Ashcroft, 378 F.3d
734, 737 (8th Cir. 2004). Here, the BIA had the final authority to decide whether to
grant Urrutia discretionary cancellation-of-removal relief. Thus, the procedure urged
in his motion to reopen -- remand so that the IJ could reconsider a discretionary
decision the BIA would then review -- would entail lengthy delay and unnecessary
agency procedure unless the BIA is allowed to “leap ahead” and simply determine
that the new evidence would not entitle him to the discretionary grant of relief, a
decision we have no jurisdiction to review on the merits. In these circumstances, the
BIA did not abuse its discretion in denying the motion to reopen. Its decision “was
grounded in legitimate concerns about the administration of the immigration laws and
was determined on the basis of the particular conduct of [Urrutia].” I.N.S. v. Rios-
Pineda, 471 U.S. 444, 451–52 (1985).

      For the foregoing reasons, we deny the petitions for review.

KELLY, Circuit Judge, dissenting.

       Urrutia argues the BIA incorrectly reviewed the IJ’s factual findings de novo
rather than for clear error, and engaged in impermissible fact finding. I agree.

       This Court has jurisdiction to decide whether the BIA applied the correct
standard of review to the IJ’s decision. Waldron v. Holder, 688 F.3d 354, 360 (8th
Cir. 2012). “We review this question de novo, considering both the standard recited
by the Board and the Board’s analysis.” Garcia-Mata v. Sessions, 893 F.3d 1107,
1109 (8th Cir. 2018). The BIA conducts de novo review of questions of law,
discretion, and judgment.        Waldron, 688 F.3d at 360 (citing 8 C.F.R.
§ 1003.1(d)(3)(ii)). However, the BIA must accept as true all facts determined by the
IJ unless they are clearly erroneous. Id. (citing 8 C.F.R. § 1003.1(d)(3)(i)). The IJ’s
findings of fact “may not be overturned simply because the Board would have

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weighed the evidence differently or decided the facts differently had it been the
factfinder.” Id. (quoting In re R–S–H, 23 I. & N. Dec. 629, 637 (BIA 2003). The
BIA has no authority to engage in fact finding, except to take administrative notice
of commonly known facts. Id. (citing Nabulwala v. Gonzales, 481 F.3d 1115, 1118
(8th Cir. 2007); 8 C.F.R. § 1003.1(d)(3)(iv)).

       Here, the BIA did not simply reweigh the record evidence and reach a different
discretionary conclusion from the IJ. Instead, it made contradictory factual findings.
Key to Urrutia’s case was the concern about his alcohol use and related legal troubles,
including DUIs, one of which caused serious injury. The IJ heard all of the evidence
and found that Urrutia “appears committed to resolving his problems with alcohol.”
The IJ also found that Urrutia expressed “genuine remorse for his actions” and
understood “the gravity of what he has done.”

        The BIA disregarded these factual findings and substituted its own. It
concluded that Urrutia “has not shown that he has been rehabilitated” and that he
“still had not made a decision whether to stop drinking.” These findings contradict
those of the IJ, whether directly or implicitly. The BIA has “discretion to weigh the
IJ’s factual findings differently than the IJ” when deciding whether to grant relief.
Waldron, 688 F.3d at 361. But, as we have noted, “there is a difference between
weighing the factual findings of the IJ and reweighing the underlying evidence and
testimony behind those findings to reach new factual conclusions.” Id. Here, the BIA
did the latter.

       The BIA could have rejected the IJ’s findings as clearly erroneous. See id. (“If
the BIA did not wish to rely on the IJ’s finding[s] . . . it needed to explain why those
determinations were clearly erroneous based on the evidence presented to the IJ.”).
The BIA also could have reweighed the positive and negative factors to reach a
different discretionary conclusion on Urrutia’s application for cancellation of
removal. See e.g., Guevara v. Gonzales, 472 F.3d 972, 975 (7th Cir. 2007). But what

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the BIA could not do is disregard the IJ’s fact finding and then engage in its own fact
finding to decide that Urrutia’s application for cancellation of removal should be
denied. For this reason, I would grant Urrutia’s petition and remand to the BIA to
discharge its statutory duty to review the IJ’s findings for clear error and remand to
the IJ for additional fact finding, if appropriate. See Waldron, 688 F.3d at 361.
                        ______________________________




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