Jose Efrain Suchite-Salguero v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of a Decision of…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-1970
_______________
JOSE EFRAIN SUCHITE-SALGUERO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of a Decision of the Board of
Immigration Appeals
(Agency Case No. A201-102-363)
Immigration Judge: Mirlande Tadal
_______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 13, 2025
Before: SHWARTZ, KRAUSE, and CHUNG, Circuit Judges
(Opinion filed: August 14, 2025)

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Kelly J. Bermudez
Smotritsky Law Group
972 Broad Street
Suite 500
Newark, NJ 07102
Counsel for Petitioner
Elizabeth Dewar
Christopher G. Gieger
Office of Immigration Litigation
Civil Division, United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
________________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
Under our immigration laws, the taking of evidence and
finding of facts falls to the Immigration Judge (IJ), not the
Board of Immigration Appeals (BIA). So when evidence
becomes available only after the IJ renders her decision, that
evidence is “new” authority on which the filing of a petition to
reopen may be based. Here, although petitioner Jose Suchite-
Salguero became father to a baby girl more than a year after
the IJ’s decision and timely petitioned the BIA to reopen his
proceeding, the BIA held that the birth could not justify
reopening because it occurred a few weeks before the BIA
issued its own decision, and therefore was not new evidence.

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Because evidence relevant to reopening must be “new”
relative to the record before the IJ, not the appeal before the
BIA, this conclusion was legal error. Nonetheless, because the
BIA proceeded to consider that evidence in any event, its error
was harmless, and we will deny the petition for review.
I. BACKGROUND
Jose Suchite-Salguero is a Guatemalan citizen and
national who claims to have been present in the United States
since 2007. Having previously conceded his removability for
entering the country without admission or parole under 8
U.S.C. § 1182(a)(6)(A), Suchite-Salguero applied in 2020 for
cancellation of removal under 8 U.S.C. § 1229b(b).
At the conclusion of removal proceedings, the IJ held
that Suchite-Salguero had satisfied only two of the four
elements required to be eligible for cancellation. Specifically,
the IJ found that Suchite-Salguero (1) is of good moral
character and (2) had not been convicted of any enumerated
offenses, consistent with the requirements of
§ 1229b(b)(1)(B)–(C), but concluded that the record evidence
was insufficient to establish that (3) he had at least ten years of
continuous physical presence in the country and (4) he had a
qualifying United States citizen relative—meaning a “spouse,
parent, or child, who is a citizen of the United States”—who
would experience “exceptional and extremely unusual
hardship” upon his removal, as required by § 1229b(b)(1)(A)
and (D).
As to this last factor, Suchite-Salguero had testified
before the IJ that his then seven-year-old son is a United States
citizen, but the IJ questioned the child’s paternity because

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Suchite-Salguero did not submit his son’s birth certificate and
conceded that his name did not appear on it. Ultimately, the IJ
went on to conclude that even if the son was a qualifying
relative, the hardship of separation was not beyond that which
would ordinarily be expected when a parent is removed.
Suchite-Salguero timely appealed to the BIA, which adopted
and affirmed the IJ’s “qualifying relative” and “exceptional
and extremely unusual hardship” determinations and dismissed
the appeal on that basis.1
About a year after the IJ’s decision, however, another
qualifying relative entered the picture. On October 18, 2021—
less than two months before the BIA’s opinion issued on
December 7, 2021—Suchite-Salguero became the father of a
baby girl who is also a United States citizen. So once the BIA
denied his petition for review of the IJ’s decision, Suchite-
Salguero filed a motion with the BIA to reopen his case,
arguing that the birth of his daughter was a “new fact[]”
supporting his eligibility for cancellation that was “material
and was not available and could not have been discovered or
presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). The
BIA denied the motion, reasoning that (1) the daughter’s birth
did not qualify as new evidence because she was born while
the appeal was pending, and (2) her birth did not establish
prima facie eligibility for relief absent evidence of hardship.
1 Because these issues were dispositive, the BIA declined to
reach the IJ’s determination regarding continuous physical
presence, which Suchite-Salguero also had appealed.

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Suchite-Salguero moved for reconsideration, but the
BIA again denied relief.2 It recognized that new evidence
could only justify reopening if it “could not have been
discovered or presented at the former hearing,” A.R. 4 (quoting
8 C.F.R. § 1003.2(c)(1)), but interpreted “former hearing” to
including proceedings before the BIA, rather than only the last
hearing before the IJ, id. It also held that even if the birth of
Suchite-Salguero’s daughter was new evidence, the fact that “a
newborn child requires significant care, attention, and
economic resources,” without more, is “insufficient to
establish the requisite level of exceptional and extremely
unusual hardship for cancellation of removal.” Id. And
because Suchite-Salguero had not submitted evidence
establishing that his removal would result in “exceptional and
extremely unusual hardship” to the newborn, the BIA denied
his motion.
Suchite-Salguero timely appealed the motion for
reconsideration but did not appeal the underlying order
denying the motion to reopen.
II. DISCUSSION
We have jurisdiction under 28 U.S.C. § 1252(a).
Because Suchite-Salguero did not seek broader review, our
jurisdiction extends only to review of the BIA’s denial of the
2 The BIA originally denied Suchite-Salguero’s motion to
reopen as untimely, a conclusion that it acknowledged on
reconsideration was erroneous. However, the BIA concluded
that any error was harmless because the reasons it provided for
refusing to reopen Suchite-Salguero’s proceedings sua sponte,
A.R. 27, independently justified denying his motion to reopen.

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motion for reconsideration. Castro v. Att’y Gen., 671 F.3d 356,
364 (3d Cir. 2012). Still, because a motion for reconsideration
“by its very nature” alleges a defect in the underlying decision,
review of the denial of reconsideration also “requires some
review of the underlying decision”—here, the BIA’s denial of
Suchite-Salguero’s motion to reopen. Id. (quotation and
alteration omitted). We review the BIA’s denial of a motion to
reconsider for abuse of discretion, Borges v. Gonzales, 402
F.3d 398, 404 (3d Cir. 2005), and though we lack jurisdiction
to review factual findings related to the disposition of an
application for cancellation of removal, see Patel v. Garland,
596 U.S. 328, 338-40 (2022), we continue to review questions
of law, including mixed questions of law and fact, Wilkinson v.
Garland, 601 U.S. 209, 217-18 (2024).3
On appeal, Suchite-Salguero contends that the BIA
abused its discretion because (1) it misinterpreted the term
“former hearing” in the context of 8 C.F.R. § 1003.2(c)(1), and
(2) it should have considered evidence concerning his
daughter’s birth. We address both contentions below.
A. Former Hearing
Because a motion to reopen must be based on new
evidence, this appeal turns on whether the “former hearing”
before which that evidence “was not available and could not
have been discovered or presented” is limited to the final
hearing before the IJ or if it sweeps in proceedings before the
3 See, e.g., Wilkinson v. Att’y Gen., 131 F.4th 134, 142 (3d Cir.
2025) (holding that the “exceptional and extremely unusual
hardship” determination is a mixed question of law and fact
reviewed for substantial evidence.).

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BIA. 8 C.F.R. § 1003.2(c)(1). There is no dispute that Suchite-
Salguero’s hearing on August 11, 2020, was the final hearing
before the IJ or that his daughter was born well after that date,
on October 18, 2021. Nor is there any dispute that the birth of
a child whose hardship has not previously been considered is
evidence material to a petitioner’s application. Nonetheless,
the BIA concluded that the birth of Suchite-Salguero’s
daughter was not “new and previously unavailable” evidence
because his merits appeal to the BIA was still pending at the
time of the birth. A.R. 4. This was legal error.
While we will defer to the BIA’s interpretation of its
own regulation when the regulation is “genuinely ambiguous”
after “carefully consider[ing] the text, structure, history, and
purpose,” United States v. Nasir, 17 F.4th 459, 471 (3d Cir.
2021) (en banc) (quoting Kisor v. Wilkie, 588 U.S. 558, 575
(2019)), there is no genuine ambiguity here. As per the
operative regulation, a motion to reopen before the BIA must
state “new facts” supported by evidence that “is material and
was not available and could not have been discovered or
presented at the former hearing.” 8 C.F.R § 1003.2(c)(1).
Though the text does not identify clearly the forum in which
“the former hearing” must have occurred, the statutory and
regulatory context clearly answer that question: “the former
hearing” refers to the last hearing before the IJ.
As a structural matter, evidence can only be “presented”
in proceedings before the IJ. The IJ’s statutory authority to
conduct proceedings to decide a petitioner’s inadmissibility or
deportability includes the ability to “receive evidence,”
examine witnesses, and otherwise develop the record.
8 U.S.C. § 1229a(b)(1). In contrast, new evidence cannot be

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presented to the BIA on appeal because the BIA is prohibited
from “engag[ing] in factfinding,” 8 C.F.R. § 1003.1(d)(3)(iv),
or even “de novo review of findings of fact determined by an
immigration judge,” id. § 1003.1(d)(3)(i). So although the BIA
has appellate jurisdiction over IJ decisions, 8 C.F.R.
§ 1003.1(b), it plays no active role in the development of the
record. And more to the point, “[t]here is no ‘hearing’ in the
usual sense of the word in proceedings before the BIA.”
Filja v. Gonzales, 447 F.3d 241, 254 (3d Cir. 2006). It thus
stretches plausibility to conclude that “former hearing” could
refer to anything other than a proceeding before the IJ.
In concluding otherwise, the BIA relied on our opinion
in Mambom v. Attorney General, 465 F. App’x 212 (3d Cir.
2012), but that opinion was not precedential and we have
cautioned over and over again that non-precedential opinions
carry little to no weight for future cases.4 See, e.g., Nsimba v.
Att’y Gen., 21 F.4th 244, 252 & n.46 (3d Cir. 2021).
Far more relevant is our analysis in Filja, where we
addressed a substantially similar subsection of the same
regulation that sets aside certain timeliness requirements on a
motion to reopen asylum proceedings before the BIA when
there is “evidence [that] is material and was not available and
4 In any event, the BIA mistook Mambom’s holding. The
petitioners in that case argued that evidence available before
the IJ’s final hearing in 2007 was “new” because it could not
have been presented at the “main merits hearing” in 2005.
Mambom v. Att’y Gen., 465 F. App’x 212, 213, 215 (3d Cir.
2012). At issue in today’s appeal, however, is evidence that
only became available after the final hearing before the IJ.

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could not have been discovered or presented at the previous
hearing.” 447 F.3d at 252 (emphasis omitted) (quoting
8 C.F.R. § 1003.2(c)(3)(ii)). Reading this language in its
statutory and regulatory context, we concluded that “previous
hearing” could “only refer to the proceedings before the IJ, and
not to the proceedings before the BIA.” Id. The same is true
here.
As in Filja, the interpretation advanced by the BIA
“does violence” to the plain language of the regulation and is
“inconsistent with the regulatory structure for fact finding and
appellate review established in 8 C.F.R. § 1003.0, et seq.” Id.
at 254. We therefore reject that interpretation and hold that,
for the purposes of a motion to reopen before the BIA, evidence
that “was not available and could not have been discovered or
presented at the former hearing” refers to evidence that could
not have been presented at the last hearing before the IJ. To
put it another way, evidence that becomes available only after
the final hearing before the IJ satisfies the requirements of
8 C.F.R. § 1003.2(c)(1), irrespective of whether the
petitioner’s appeal to the BIA is then pending.
B. Harmless Error
We next consider whether the BIA’s error was
harmless, such that remand would be unnecessary.
Although the Chenery doctrine has historically
“limit[ed] courts to considering only those rationales relied on
by the agency” and therefore required remand for the agency’s
own consideration in the case of error, Guadalupe v. Att’y
Gen., 951 F.3d 161, 166 n.30 (3d Cir. 2020), the Supreme
Court more recently has narrowed that doctrine, FDA v. Wages

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and White Lion Investments, L.L.C., 145 S. Ct. 898, 929
(2025).5 And, in any event, we have continued to apply the
harmless error rule in immigration cases. Guadalupe, 951 F.3d
at 166 n.30. Thus, even when the BIA has erred, “we will view
[that] error as harmless and not necessitating a remand to the
BIA when it is highly probable that the error did not affect the
outcome of the case.” Li Hua Yuan v. Att’y Gen., 642 F.3d
420, 427 (3d Cir. 2011). And in the specific context of a denial
of a motion to reopen, such as we have here, “the correct
5 In FDA v. Wages and White Lion Investments, L.L.C., 145 S.
Ct. 898 (2025), the Supreme Court recognized that, where an
agency bases its decision on erroneous grounds but would have
made the same decision absent the error, there is tension
between the Court’s assertion that agency action “cannot be
upheld unless the grounds upon which [it] acted in exercising
its powers were those upon which its action can be sustained,”
SEC v. Chenery Corp., 318 U.S. 80, 95 (1943), and the
harmless error rule Congress subsequently enacted in the
Administrative Procedure Act, 5 U.S.C. § 706(2) (flush
language) (directing courts to take “due account . . . of the rule
of prejudicial error”). Though the Court did not need to resolve
that tension in White Lion, it noted at least two circumstances
where harmless error analysis was appropriate notwithstanding
Chenery’s remand rule: First, in Calcutt v. FDIC, the Supreme
Court recognized that “remand may be unwarranted . . .
[w]here the agency ‘was required’ to take a particular action.”
White Lion, 145 S. Ct. at 929 (quoting Calcutt v. FDIC, 598
U.S. 623, 30 (2023) (per curiam)). And second, the Court
explained that “remand may not be necessary when an
agency’s decision is supported by a plethora of factual
findings, only one of which is unsound.” Id. at 930.

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inquiry is whether the BIA’s legal error affected the outcome
of [that] motion to reopen.” Guadalupe, 951 F.3d at 167.
In this case, we conclude it did not. Even though the
BIA determined that the evidence concerning the birth of
Suchite-Salguero’s daughter was not “new and previously
unavailable” and therefore did not need to be considered on
reopening, it nonetheless proceeded to consider that evidence
in both its initial denial of his motion to reopen and its
subsequent denial of his motion for reconsideration. In the first
opinion, it observed that “[w]hile the birth of a new child
undoubtedly requires ongoing care and attention, it alone does
not establish prima facie eligibility for relief” and that Suchite-
Salguero had “not presented any evidence that his newborn
child suffers from any health or developmental issues.” A.R.
27. And in the second, after the baby’s mother had submitted
an affidavit describing Suchite-Salguero as the sole
breadwinner and the resulting difficulty in her caring for the
baby if he were removed, the BIA again acknowledged that “a
newborn child requires significant care, attention, and
economic resources from the parents” but concluded that was
“insufficient to establish the requisite level of exceptional and
extremely unusual hardship for cancellation of removal.” A.R.
4.
Under these circumstances, we cannot say that Suchite-
Salguero has shown “a reasonable likelihood” that he would be
able on remand to establish entitlement to relief. Guo v.
Ashcroft, 386 F.3d 556, 564 (3d Cir. 2004). The BIA’s error
therefore was harmless, and we will deny Suchite-Salguero’s
petition for review.

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III. CONCLUSION
For the foregoing reasons, we will deny Suchite-
Salguero’s petition for review.

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