Heraclio Torres-Jimenez v. TODD BLANCHE, Attorney General

NOT RECOMMENDED FOR PUBLICATION
File Name: 26a0362n.06
No. 25-4005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HERACLIO TORRES-JIMENEZ,
Petitioner,
v.
TODD BLANCHE, Attorney General,
Respondent.
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ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS
OPINION
Before: CLAY, MURPHY, and BLOOMEKATZ, Circuit Judges.
The court delivered a PER CURIAM opinion. CLAY, J. (pp. 5–10), delivered a separate
dissenting opinion.
PER CURIAM. Heraclio Torres-Jimenez petitions for judicial review of a Board of
Immigration Appeals decision denying his motion to reopen and terminate removal proceedings.
Because he did not establish a prima facie case for relief, we deny the petition for review.
Torres-Jimenez, a native and citizen of Mexico, entered the United States without
admission or inspection in September 1994. In March 2017, the Department of Homeland Security
issued a Notice to Appear, placing him in removal proceedings. Torres-Jimenez conceded
removability and applied for cancellation of removal. After a hearing, the immigration judge
denied his application for cancellation of removal but approved his request for voluntary departure.
Torres-Jimenez timely appealed to the Board, which affirmed the removal order in January 2025.
In March 2025, Torres-Jimenez filed a motion to reopen and terminate his removal
proceedings. The basis of his motion was that, in October 2024, he had filed with U.S. Citizenship

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and Immigration Services a Form I-360, as a self-petitioning parent of a U.S. citizen under the
Violence Against Women Act (VAWA), along with a Form I-485, seeking adjustment of status.
The Board denied his motion to reopen and terminate, holding he had presented “no evidence that
a visa [was] immediately available” and was therefore “unable to demonstrate prima facie
eligibility for adjustment of status.” BIA Decision, AR 3–4.
Torres-Jimenez timely petitioned for our review of the Board’s denial. He also moved for
a stay of removal, which we denied, and reconsideration of that motion, which we also denied.
We review the Board’s denial of a motion to reopen removal proceedings for abuse of
discretion. Abdulahad v. Garland, 99 F.4th 275, 283 (6th Cir. 2024). We review the Board’s legal
conclusions de novo, but the Board retains “broad” discretion to grant or deny the motion. Id. at
284 (quoting Daneshvar v. Ashcroft, 355 F.3d 615, 625–26 (6th Cir. 2004)). The Board abuses its
discretion if its decision “was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis such as invidious discrimination against
a particular race or group.” Id. (quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)).
To prevail on a motion to reopen, a petitioner must make a prima facie showing of
eligibility for the relief underlying their motion, meaning a “reasonable likelihood,” though not a
“conclusive showing,” that they satisfied the requirements for the requested relief. Trujillo Diaz
v. Sessions, 880 F.3d 244, 249–50 (6th Cir. 2018) (citations omitted). Torres-Jimenez sought the
substantive relief of adjustment of status based on his VAWA self-petition. To obtain adjustment
of status, he had to satisfy statutory requirements—(1) filing an application for adjustment of
status, (2) eligibility for an immigrant visa and admissibility to the United States for permanent
residence, and (3) immediate availability of an immigrant visa at the time of filing—and
demonstrate that he merited the favorable exercise of agency discretion. Hatchet v. Andrade, 106

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F.4th 574, 577 (6th Cir. 2024); 8 U.S.C. §§ 1229a(c)(4)(A), 1255(a). The Board could deny his
motion to reopen for at least three reasons: “failure to establish a prima facie case for the relief
sought, failure to introduce previously unavailable, material evidence, and a determination that
even if these requirements were satisfied, the movant would not be entitled to the discretionary
grant of relief which he sought.” INS v. Doherty, 502 U.S. 314, 323 (1992).
In his motion to reopen, Torres-Jimenez presented no arguments about the immediate
availability of an immigrant visa or about his prima facie eligibility for adjustment of status. He
had only three sentences about his pending petitions. First, he said, “On October16, 2024, [he]
filed with U.S. Citizenship and Immigration Services (USCIS), DHS Form I-360, Petition for
Amerasian, Widow(er) or Special Immigrant, as a self-petitioning parent of a U.S. Citizen, under
the VAWA provisions . . . and DHS Form I-485, Application to Register Permanent Residence or
Adjust Status.” Mot. to Reopen, AR 21 (footnotes omitted). Next, he said that he did not have
any criminal history that prevented USCIS from approving his petitions and that, “[a]s of the date
of filing this motion to reopen,” both petitions were pending. Id. He attached notices of receipt
for each petition, but he did not attach the petitions themselves or provide any information about
the substance of the petitions. He did not even identify the grounds for his VAWA visa in his
motion to reopen. Instead of arguing the bases for relief, the remainder of his motion to reopen
discussed his family and community ties in the United States. Torres-Jimenez’s barebones
reference to his pending petitions, with no information about their substance or statutory grounds,
was insufficient to establish the immediate availability of an immigrant visa or his prima facie
eligibility for adjustment of status.
On appeal, Torres-Jimenez challenges the Board’s conclusion that he failed to show that a
visa was immediately available. He contends that the Board erred when it stated he could

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“eventually pursue adjustment of status . . . based on an approved Form I-360 petition” because
he was entitled to file both petitions concurrently. BIA Decision, AR 3. Even assuming the Board
erred, we decline to grant the petition for review based on Torres-Jimenez’s arguments about visa
availability that he never made before the Board. As described above, he never advanced the
argument before the Board that a visa was “immediately available”—indeed, these words do not
appear in his motion to reopen. Torres-Jimenez bore the “heavy burden” to establish prima facie
eligibility for relief, INS v. Abudu, 485 U.S. 94, 110 (1988), and he failed to meet his burden in his
motion to reopen.
We deny Torres-Jimenez’s petition for review.

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CLAY, Circuit Judge, dissenting. Heraclio Torres-Jimenez has petitioned this Court for
review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen and terminate
removal proceedings. Because the BIA’s analysis was deficient, I would grant the petition for
review, vacate the BIA’s order, and remand the case to the BIA for further proceedings.
As the majority notes, “[w]e review the [BIA]’s denial of a motion to reopen immigration
proceedings for abuse of discretion[,]” which occurs when the BIA acts “without a rational
explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis
such as invidious discrimination against a particular race or group.” Preçetaj v. Sessions, 907 F.3d
453, 457 (6th Cir. 2018) (first citing Trujillo Diaz v. Sessions, 880 F.3d 244, 248 (6th Cir. 2018);
and then quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005)). Where the BIA has
made an error in its reasoning, the “proper course, except in rare circumstances, is to remand to
the agency for additional investigation or explanation.” Abdulahad v. Garland, 99 F.4th 275, 295
(6th Cir. 2024) (quoting Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007)); see also
E.A.C.A. v. Rosen, 985 F.3d 499, 508 (6th Cir. 2021) (“In cases where the BIA has failed to provide
sufficient explanation, we remand the case to the BIA for further consideration.” (citing Preçetaj,
907 F.3d at 458)); Marqus v. Barr, 968 F.3d 583, 592 (6th Cir. 2020) (“Where the BIA has
cursorily denied a motion that would reopen an applicant’s removal proceedings, we have
remanded the case to the BIA to articulate a basis for its denial that would enable meaningful
review by this court.” (collecting cases)). In a narrow set of immigration cases, we have
recognized a limited “harmless-error doctrine”: A faulty decision by the BIA “may be upheld on
the basis of harmless error if the petitioner’s prospects are otherwise so weak that there is no
‘reason to believe . . . remand might lead to a different result.’” Abdulahad, 99 F.4th at 295
(alteration in original) (quoting Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010)).

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“In other words, remand is not required when doing so ‘would be futile.’” Id. (quoting
Karimijanaki v. Holder, 579 F.3d 710, 721 (6th Cir. 2009)).
When we review a decision by the BIA, we typically limit ourselves to considering only
the points that the BIA has actually addressed. We “may not assume that the BIA considered
factors that it failed to mention in its opinion.” Hernandez-Perez v. Whitaker, 911 F.3d 305, 318
(6th Cir. 2018) (quoting Trujillo Diaz, 880 F.3d at 248). “Even if the government’s interpretation
of the BIA’s reasoning is correct, we may not presume the BIA’s reasoning when it has failed to
provide any explanation.” E.A.C.A., 985 F.3d at 508. That rule stems from Chenery, which is the
doctrine that says, “[A] reviewing court ordinarily should not uphold administrative action based
on reasons different from those given by the agency.” Japarkulova, 615 F.3d at 701 (citing SEC
v. Chenery Corp., 318 U.S. 80, 88–89 (1943)).
The BIA’s order was deficient. It failed to present a “rational explanation” for denying
Torres-Jimenez’s motion. Preçetaj, 907 F.3d at 457. After introducing the procedural history and
stating the standard for a motion to reopen, the entirety of the BIA’s analysis of Torres-Jimenez’s
motion was as follows:
The respondent seeks the reopening and termination of these [removal]
proceedings based upon a pending self-petition under the Violence Against Women
Act (“VAWA”) (Form 1-360). Though a respondent may eventually pursue
adjustment of status under section 245(a) of the INA, 8 U.S.C. § 1255(a), based on
an approved Form 1-360 visa petition, the respondent’s self-petition is still
pending. As such, there is no evidence that a visa is immediately available to the
respondent. Therefore, he is unable to demonstrate prima facie eligibility for
adjustment of status or any other relief. Accordingly, the . . . motion is denied.
Certified Administrative Record 3–4 (citation omitted).
First, that reasoning is circular. To paraphrase, the BIA posits that a pending Form I-360
cannot justify adjustment of status, so an immigrant visa was not immediately available to Torres-
Jimenez, so he could not demonstrate prima facie eligibility for adjustment of status.
7

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The unavailability of an immigrant visa cannot, logically, be both the result and the cause of
Torres-Jimenez’s inability to present prima facie eligibility for adjustment of status.
Second, the accuracy of the BIA’s recitation of the law is not entirely clear. Torres-Jimenez
argues that “8 C.F.R. § 245.2(a)(2)(i)(B) in fact provides that an application for adjustment of
status may be filed based upon a VAWA self-petition which has not yet been approved . . . .”
Pet’r’s Br. 9. He is correct. That regulation states:
If, at the time of filing [for adjustment of status], approval of a visa petition filed
for classification [as an immediate relative] would make a visa immediately
available to the alien beneficiary, the alien beneficiary’s adjustment application will
be considered properly filed whether submitted concurrently with or subsequent to
the visa petition, provided that it meets the filing requirements . . . . For any other
classification, the alien beneficiary may file the adjustment application only after
[U.S. Citizenship and Immigration Services’ (“USCIS”)] has approved the visa
petition.
8 C.F.R. § 245.2(a)(2)(i)(B). The Attorney General argues that the regulation establishes only that
a Form I-485 is properly filed if it is contemporaneous with a pending I-360 petition and not that
a visa is immediately available while the I-360 remains pending. But the fact that the regulation
permits simultaneous filing is at least compatible with, if not support for, Torres-Jimenez’s
interpretation of the law. Administratively accepting a Form I-485 submission based on a
concurrent pending Form I-360 would make little sense if that pending Form I-360 were an
insufficient basis for adjustment of status eligibility.
Resources made available by the Department of Homeland Security itself seem to favor
Torres-Jimenez’s view. USCIS’ own instructions for VAWA self-petitioners seeking adjustment
of status clearly state, “If you are a VAWA self-petitioner seeking to adjust status as an immediate
relative, you may file Form I-485 at any time because visas are always immediately available for
immediate relatives.” Green Card for VAWA Self-Petitioner, USCIS, https://perma.cc/36KW-
WBBC (click dropdown for “How to Apply”) (last visited August 12, 2026); see also USCIS,

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Policy Manual, vol. 7, pt. B, ch. 2, https://perma.cc/55YF-NNMZ (last visited August 12, 2026)
(“An immigrant visa is always available to applicants seeking adjustment as immediate
relatives.”); id. pt. A, ch. 6.C.1, https://perma.cc/Q2JP-R3P5 (last visited August 12, 2026)
(explaining that “immediate relatives are exempt from . . . numerical restrictions[,]” so “an
immigrant visa is always immediately available”). The relevant definition of “immediate
relatives” includes “the . . . parents of a citizen of the United States” who is “at least 21 years of
age.” 8 U.S.C. § 1151(b)(2)(A)(i). Torres-Jimenez is the parent of three U.S. citizens, two of
whom were older than 21 when Torres-Jimenez filed his motion to reopen. He filed his VAWA
petition to seek status as an immediate relative. See Violence Against Women and Department of
Justice Reauthorization Act of 2005, Pub. L. 109–162, sec. 816, § 204(a)(1)(A)(vii),
119 Stat. 2960 (codified at 8 U.S.C. § 1154(a)(1)(A)(vii)) (providing that a noncitizen may petition
for immediate relative status based on abuse by the noncitizen’s citizen child). Whether a visa was
immediately available to Torres-Jimenez is at least ambiguous, and the BIA’s examination of the
issue inscrutible.
The majority discounts Torres-Jimenez’s arguments regarding the immediate availability
of a visa because he did not present them before the BIA. But in Torres-Jimenez’s view, he would
have met his burden of establishing the immediate availability of a visa by stating in his motion,
as he did, that he had filed his Form I-360 as a self-petitioning parent of a U.S. citizen under
VAWA and his Form I-485 application for adjustment of status. We should not fault Torres-
Jimenez for failing to presage the BIA’s interpretation of the eligibility requirements. Cf. Solano-
Chicas v. Gonzales, 440 F.3d 1050, 1055 & n.5 (8th Cir. 2006) (declining to “fault” petitioner for
“not arguing about an issue that was not even considered until the BIA’s final decision” to deny
motion to reopen); Martinez-Garcia v. U.S. Att’y Gen., No. 23-11654, 2024 WL 3342466, at *2

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(11th Cir. July 9, 2024) (per curiam) (“[A] petitioner cannot be penalized for failing to exhaust an
argument regarding an error on the BIA’s part that only arose once the BIA rendered its decision.”
(citation omitted)); Moussa v. I.N.S., 302 F.3d 823, 826 (8th Cir. 2002) (“Often a party cannot
point out a tribunal’s alleged legal error until after the alleged error is made.”).
The Attorney General argues in a footnote that remand would be “futile” even if Torres-
Jimenez’s visa availability argument is correct, because Torres-Jimenez did not establish “a
reasonable likelihood that his Form I-360 VAWA self-petition and adjustment of status application
would be granted.” Resp.’s Br 18 n.3. The majority agrees. Perhaps they are correct that he did
not meet his burden, even beyond the issue of visa availability. But we would not know it from
the BIA’s abbreviated writing. The BIA did not articulate any specific problems with Torres-
Jimenez’s prima facie eligibility other than the visa availability issue. We tend to avoid relying
on points the BIA did not explain to deny a petition for review. Hernandez-Perez, 911 F.3d at
318. There is no reason to depart from that practice here and allow the BIA to take a shortcut to
removing Torres-Jimenez from the country.
Thus we may uphold the BIA’s decision on those grounds only if “there is no ‘reason to
believe . . . remand might lead to a different result.’” Abdulahad, 99 F.4th at 295 (alteration in
original) (quoting Japarkulova, 615 F.3d at 701). The BIA did not provide a clear enough analysis
to help us understand whether it would have denied the motion for other reasons. It did not even
state the requirements for prima facie eligibility that Torres-Jimenez had to meet. “Though it need
not ‘write an exegesis on every contention,’ [the BIA] must ‘. . . announce its decision in terms
sufficient to enable [appellate review] . . . .” Guts v. Lynch, 623 F. App’x 304, 305 (6th Cir. 2015)
(third and fourth alterations in original) (quoting Scorteanu v. I.N.S., 339 F.3d 407, 412 (6th Cir.
2003)); Ruiz Lafita v. Garland, No. 23-3560, 2024 WL 2874576, at *8 (6th Cir. June 7, 2024)

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(quoting Trujillo Diaz, 880 F.3d at 255); see also E.A.C.A., 985 F.3d at 508 (“When denying a
motion to reopen, we require that the BIA articulate a basis for its decision that will allow this
court to engage in meaningful review.” (quoting Dieng v. Barr, 947 F.3d 956, 963 (6th Cir.
2020))).
The “‘proper course . . . is to remand to the [BIA] for additional investigation or
explanation.’” Abdulahad, 99 F.4th at 295 (quoting Mapouya, 487 F.3d at 405); see Preçetaj, 907
F.3d at 456–57, 459–60 (reversing, remanding, and holding that “the BIA ha[d] not articulated a
basis to allow for meaningful review by this court” in its three-paragraph order denying a motion
to reopen (citing Hanna v. Mukasey, 290 F. App’x 867, 873 (6th Cir. 2008))); Guts, 623 F. App’x
at 305–306 (granting petition for review and remanding where BIA analysis for denying motion
to reopen for adjustment of status was deficient). I respectfully dissent.

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