Jose Ricardo De La Cruz Reyna v. LORETTA E. LYNCH, Attorney General

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0776n.06
Nos. 14-3662/15-3093
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSE RICARDO DE LA CRUZ REYNA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
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ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS
BEFORE: DAUGHTREY, ROGERS, and WHITE, Circuit Judges.
ROGERS, Circuit Judge. Jose De La Cruz Reyna seeks review of two decisions from the
Board of Immigration Appeals (BIA). In the first decision, the BIA dismissed De La Cruz’s
appeal seeking cancellation of removal proceedings and granted him voluntary departure. In the
second decision, the BIA denied De La Cruz’s motion to reopen the removal proceedings and De
La Cruz’s alternative motion for administrative closure. The BIA ruled correctly in both
decisions.
De La Cruz was admitted to the United States in 2000 on a nonimmigrant border crossing
card that allowed him to remain in the United States within twenty-five miles of Roma, Texas for
a period of seventy-two hours. De La Cruz remained in the United States for a period longer
than seventy-two hours and traveled more than twenty-five miles from Roma. On November 22,
2010, the Department of Homeland Security served De La Cruz with a Notice to Appear,

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charging him with removability under Immigration and Nationality Act § 237(a)(1)(B) for
remaining in the country longer than permitted. At De La Cruz’s hearing before an Immigration
Judge (IJ), he admitted the factual allegations contained in the Notice to Appear and conceded
removability.1 De La Cruz sought cancellation of removal and, in the alternative, voluntary
departure.
The IJ denied De La Cruz’s applications for cancellation of removal and voluntary
departure. The IJ first denied the application for cancellation of removal, determining that De La
Cruz had failed to establish that he had resided in the United States for a continuous period of ten
years prior to being served with the Notice to Appear, that his removal would result in
exceptional and extremely unusual hardship to his mother, or that he had demonstrated good
moral character during the requisite period. As a matter of discretion, the IJ also denied the
application for voluntary departure. De La Cruz timely appealed the IJ’s decision to the Board
of Immigration Appeals.
A single member of the BIA, rather than a three-member panel, decided De La Cruz’s
appeal. The single-member Board affirmed the IJ’s denial of cancellation of removal on the sole
basis that De La Cruz had failed to establish that his removal would result in exceptional and
unusual hardship to his lawful-permanent-resident mother. Notwithstanding the IJ’s moral-
character determination, the Board granted De La Cruz’s request for voluntary departure and
stated: “In the absence of a clear indication in the record that the respondent is statutorily
ineligible for voluntary departure, and weighing the equities and the adverse factors presented,
we find that the respondent is eligible for and deserving of this minimal form of relief.” De La
Cruz filed a timely petition for review of the decision with this court.
1 De La Cruz contested the exact date of his entry into the United States. However, he conceded all facts in the
Notice to Appear that are relevant to this appeal.

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After the time for voluntary departure, but within the time limit for reopening, De La
Cruz filed with the BIA timely motions to reopen and for administrative closure. He argued that
he became eligible for asylum and withholding of removal on account of changed circumstances
in Mexico and his membership in the proposed group of “Americanized Mexican deportees,” and
that he also became eligible for relief under the Convention Against Torture (CAT). He also
stated that intervening case law had transformed the “particular social group” determination in
the asylum and withholding-of-removal analyses. In the alternative, De La Cruz requested that
the BIA administratively close his proceedings until the priority date for his approved visa
petition—filed in 1998 by his sister, a United States citizen—became current, when he could
then file for adjustment of status. The BIA construed this as three requests: (1) to reopen the
proceedings to apply for asylum, withholding of removal, and relief under the Convention
Against Torture; (2) to reopen the proceedings to apply for adjustment of status; and (3) for
administrative closure.
The BIA denied all of De La Cruz’s requests. First, the BIA stated that “the motion [did]
not set forth evidence that is new, material, and could not have been discovered and presented at
the prior hearing.” Also, the BIA found that the evidence did not reflect a material change in
conditions in Mexico since De La Cruz’s initial hearing in 2012. The BIA further found that De
La Cruz had not made a prima facie case that he was eligible to apply for asylum, withholding of
removal, or relief under the Convention Against Torture. First, the BIA stated that De La Cruz
did not show that his fear of persecution was based on his being a member of a particular social
group. Second, the BIA found that De La Cruz failed to demonstrate the likelihood of his being
tortured upon his return “by or at the instigation of or with the consent or acquiescence of a

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public official or other person acting in an official capacity.” The BIA therefore denied De La
Cruz’s first request.
The BIA also denied De La Cruz’s second and third requests. Regarding the motion to
reopen to apply for adjustment of status, the BIA stated that De La Cruz failed to show prima
facie eligibility for such relief because the voluntary-departure time that the BIA previously
granted had expired before De La Cruz filed his motion to reopen. As an independent basis for
the BIA’s denying De La Cruz’s second request, it stated that De La Cruz failed to show that a
visa was available to him. Finally, with regard to De La Cruz’s request for administrative
closure, the BIA held that it would not grant administrative closure because De La Cruz could
have raised the argument at his initial hearing, but did not, and because “the argument for such
action [was] made after a final order of removal ha[d] been entered.” The BIA therefore denied
De La Cruz’s other two requests. De La Cruz petitions this court for review of the BIA’s
determinations and asks this court to reverse both decisions.
The point of De La Cruz’s challenge to the BIA’s first order is somewhat difficult to
ascertain. De La Cruz explicitly disavows that he is challenging the IJ’s denial of cancellation of
removal. Instead he challenges the BIA’s refusal to convene a three-member panel on the
following rationale: the BIA could not reverse an IJ without convening a three-member panel,
and the BIA effectively reversed the IJ by granting voluntary departure, since voluntary
departure would not have been allowed without “reversing” the IJ’s determination that De La
Cruz had not demonstrated good moral character.2 It is not clear from De La Cruz’s brief,
however, what accepting this argument does for him. The most likely benefit to him of
2 De La Cruz also argues summarily that the single board member erred in not explicitly ruling on his motion for a
three-member panel. However, unlike other regulations which specify the Board must render decisions in a written
order, see 8 C.F.R. § 1003.2(i), nothing in the applicable regulation requires a board member to issue a written
ruling on a motion to submit a case to a three-member panel, see generally 8 C.F.R. § 1003.1. Thus, the BIA did not
err in not doing so.

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accepting this argument is that because the voluntary departure that he requested was wrongly
awarded to him, he could not be denied reopening in the BIA’s second order on the ground that
he violated his voluntary departure. Lacking any other suggestion, we assume that this is what
his counsel has in mind. In any event, there was no procedural irregularity because the grant of
voluntary departure was not beyond the scope of a single member’s power under 8 C.F.R. §
1003.1(e)(5).3 The regulation relied upon by De La Cruz, 8 C.F.R. § 1003.1(e)(5), states:
If the Board member to whom an appeal is assigned determines, upon
consideration of the merits, that the decision is not appropriate for affirmance
without opinion, the Board member shall issue a brief order affirming, modifying,
or remanding the decision under review, unless the Board member designates the
case for decision by a three-member panel under paragraph (e)(6) of this section
under the standards of the case management plan. A single Board member may
reverse the decision under review if such reversal is plainly consistent with and
required by intervening Board or judicial precedent, by an intervening Act of
Congress, or by an intervening final regulation.
8 C.F.R. § 1003.1(e)(5) (emphasis added). It is thus within the scope of a single member’s
power under (e)(5) to modify the IJ’s decision, and that is what the BIA did in its granting of De
La Cruz’s request for voluntary departure. The BIA did not reverse the IJ’s decision to remove
De La Cruz; the BIA simply allowed for De La Cruz to depart voluntarily rather than under a
3 There is some question as to whether the decision to have a single-member BIA ruling is judicially reviewable
under 5 U.S.C. § 701(a)(2), dealing with matters committed to agency discretion by law. “Whether an applicant
may challenge the BIA’s decision to streamline his case pursuant to the Administrative Procedure Act remains an
open question before this court.” Nabhani v. Holder, 382 F. App’x 487, 491 (6th Cir. 2010). As we have done in
many other instances, we assume without deciding, for purposes of argument, that the issue is reviewable, but reject
the challenge to the single-member BIA assignment. See Lopez-Salgado v. Lynch, No. 14-3646, 2015 WL 4461091
at *6 (6th Cir. July 22, 2015); Nabhani v. Holder, 382 F. App’x 487, 491 (6th Cir. 2010); Balliu v. Gonzales, 192 F.
App’x 427, 435 (6th Cir. 2006); Denko v. I.N.S., 351 F.3d 717, 732 (6th Cir. 2003). The government additionally
argues that because De La Cruz’s challenge is to the BIA’s determination regarding voluntary departure, we have no
jurisdiction over this challenge pursuant to 8 U.S.C. § 1252(a)(2)(B), which provides, “no court shall have
jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229c,” which pertains to
voluntary departure. Id. at § 1229c. However, as the government concedes, we retain jurisdiction “where voluntary
departure raises a constitutional or legal question.” Patel v. Gonzalez, 470 F.3d 216, 220 (6th Cir. 2006); see also
8 U.S.C. § 1252(a)(2)(D). Here, De La Cruz challenges not the BIA’s discretionary grant of voluntary departure,
but rather whether a single member had statutory authority to grant it under these circumstances. “Where our
decision requires resolution of a contested interpretation of language in the statute or the regulations, the appeal will
fall within our jurisdiction.” Ettienne v. Holder, 659 F.3d 513, 517 (6th Cir. 2011). Thus, because De La Cruz’s
challenge raises a legal question, we have jurisdiction to consider it.

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removal order. “The word ‘modify’ . . . has a connotation of increment or limitation. Virtually
every dictionary . . . says that ‘to modify’ means to change moderately or in minor fashion.”
MCI Telecomm. Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 225 (1994). Under both the IJ
and BIA decisions, De La Cruz was required to leave the United States. The decision to grant
De La Cruz’s request for voluntary departure was a minor change to the IJ’s decision to remove
De La Cruz and was therefore a modification.
Even if the board member erred in granting De La Cruz’s request for voluntary departure,
De La Cruz must still demonstrate prejudice. See 5 U.S.C. § 706 (“In [reviewing agency action],
. . . due account shall be taken of the rule of prejudicial error.”). In Villegas de la Paz v. Holder,
640 F.3d 650, 656 (6th Cir. 2010), we stated that “[A]n agency’s violation of its procedural rules
will not result in reversible error absent a showing that the claimant has been prejudiced on the
merits or deprived of substantial rights because of the agency’s procedural lapses.” (quotation
marks and citation omitted). See also Coalition for Gov’t Procurement v. Fed. Prison Indus.,
Inc., 365 F.3d 435, 468 (6th Cir. 2004). Here, the alleged error was made in De La Cruz’s favor;
the single board member granted the relief De La Cruz sought, voluntary departure. Therefore,
he cannot demonstrate the error was prejudicial. In United States v. Dedman, 527 F.3d 577, 587
(6th Cir. 2008), by analogy, we found harmless error in a criminal case where the error
benefitted the defendant. See also United States v. Ayotte, 741 F.2d 865, 870 (6th Cir. 1984)
(same).
In its second order, the BIA properly denied reopening because De La Cruz failed to
make a prima facie case of eligibility for asylum, CAT relief, or withholding of removal. The
BIA found that De La Cruz’s proposed social group of “Americanized Mexican deportees”
lacked the requisite “particularity” and “social distinction” to constitute a “particular social

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group” for asylum and withholding-of-removal purposes. De La Cruz challenges this aspect of
the BIA’s reopening denial on the ground that intervening BIA precedent required the BIA to
remand the social-group determination to the IJ. Matter of M-E-V-G-, 26 I&N Dec. 227, 2014
WL 524499 (B.I.A. 2014); Matter of W-G-R-, 26 I&N Dec. 208, 2014 WL 524498 (B.I.A.
2014). De La Cruz argues that these decisions fundamentally changed the standard applicable to
his asylum and withholding application and that due process compelled the BIA to remand to the
IJ with the opportunity for De La Cruz to present new arguments and evidence. However, these
decisions pre-dated the BIA’s decision, and M-E-V-G was indeed cited by the BIA in its decision
denying De La Cruz’s motion to reopen. Moreover, in both Matter of M-E-V-G and Matter of
W-G-R, the BIA explicitly stated that it was merely clarifying its precedents, not changing them,
and cited earlier Board decisions that were consistent with its interpretation in those cases.
Matter of M-E-V-G-, 26 I&N Dec. at 245; Matter of W-G-R-, 26 I&N Dec. at 217. In recent
decisions, this Court has also found that Matter of M-E-V-G and Matter of W-G-R did not
“meaningfully chang[e] the requirements for proving a particular social group.” Alvarez-Mejia
v. Lynch, No. 14-3644, 2015 WL 5846020, at *2 (6th Cir. Oct. 8, 2015); see also Aguilar-
Aguilar v. Lynch, No. 14-4118, 2015 WL 5569149, at *5 (6th Cir. Sept. 22, 2015). Thus, De La
Cruz’s contention that he could not have brought his asylum claim earlier because his proposed
social group would not have been covered under the Board’s prior definition of this term is
without merit. In any event, an agency’s clarification or change in an applicable standard for
relief does not necessarily require a new hearing at a lower level of the agency process before the
agency can rule. See Nunez-Avina v. Lynch, 2015 U.S. App. LEXIS 17991 (6th Cir. Oct. 13,
2015). De La Cruz cites no court holding that there is such a requirement.

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De La Cruz briefly argues that the BIA improperly failed to look at developments
occurring between 2000, when he entered the United States, and his 2012 hearing. This
argument fails because the BIA properly considered only the evidence De La Cruz produced
regarding changes in Mexico’s conditions between the time of his 2012 hearing and the time of
the motion to reopen. De La Cruz relies on Mandebvu v. Holder, 755 F.3d 417 (6th Cir. 2014),
in this connection, but Mandebvu is inapposite. In Mandebvu, we held that incremental changes
in country conditions regarding persecution can factor into the analysis of changed circumstances
for asylum-eligibility purposes. Id. at 426-28. De La Cruz, however, was required by statute
and regulation to provide evidence that was previously unavailable and could not have been
discovered at the time of his 2012 hearing. See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.
§ 1003.2(c)(1). Thus, at issue was not De La Cruz’s eligibility for asylum but what he was
required to produce to support his motion to reopen. Evidence from 2000 through 2012
regarding changed conditions in Mexico was available at the time of De La Cruz’s 2012 hearing.
The BIA therefore properly considered only the evidence of changed country conditions after
De La Cruz’s 2012 hearing.
De La Cruz’s remaining argument with respect to the absence of a prima facie asylum
case is that the BIA applied the wrong standard. In this regard, De La Cruz argues that the BIA
improperly applied a 51% burden of proof to De La Cruz’s fear of persecution, rather than a 10%
burden. This argument is without merit. The burden for a motion to reopen is a heavy one, and
the movant must show “that if proceedings before the immigration judge were reopened . . . the
new evidence offered would likely change the result of the case.” Matter of Coelho, 20 I&N
Dec. 464, 473 (BIA 1992). This is the burden that the BIA applied to De La Cruz’s motion to
reopen. De La Cruz’s argument conflates the lower burden to be applied in an asylum

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determination—“a well-founded fear of persecution,” 8 C.F.R. § 208.13(b)(2)—with the burden
applied to a motion to reopen. In the context of a motion to reopen, De La Cruz had a heavy
burden to show that the new evidence offered regarding his fear of persecution would likely
change the result if the case were reopened before the IJ. There is nothing in the BIA’s decision
suggesting it applied an improper burden of proof, and the BIA therefore did not abuse its
discretion in determining that De La Cruz failed to make a prima facie case of eligibility for
asylum and for withholding of removal.4
With respect to the Convention Against Torture, the BIA also properly denied the petition
to reopen because De La Cruz failed to make a prima facie case of eligibility for relief. The BIA
considered De La Cruz’s evidence regarding criminal gangs and cartel members’ victimizing
“Mexicans, including returnees, and non-Mexicans.” The BIA also considered De La Cruz’s
evidence that showed “the ongoing efforts of the Mexican Government to combat, rather than
acquiesce in, such violence.” In the context of a reopening petition requiring prima facie
evidence, the BIA did not abuse its discretion in concluding that De La Cruz failed to meet his
burden, which required presentation of a prima facie case that he “will be tortured if removed to
Mexico by or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1).
The BIA also properly rejected De La Cruz’s alternative basis for reopening—to enable
him to apply for adjustment of status. The BIA rejected reopening on that basis for two
independent reasons: he had not departed within the 15-day voluntary departure period, and in
any event he had not shown that an immigrant visa was available. De La Cruz does not
challenge the second independent ground on appeal. In order to be eligible for adjustment of
4 Moreover, in determining that De La Cruz could not make out a prima facie case for asylum, the BIA did not rely
on De La Cruz’s “well-founded fear of persecution,” but rather concluded that De La Cruz had not presented a
sufficiently particular or socially distinct “particular social group.”

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status on application for an immigrant visa, an immigrant visa must be “immediately available to
[the applicant] at the time his application [for adjustment of status] is filed.” 8 U.S.C. § 1255(a).
De La Cruz makes no argument that the BIA abused its discretion in making this determination,
and this is dispositive of De La Cruz’s motion to reopen for adjustment of status. Thus, based on
the record, the BIA did not abuse its discretion by denying De La Cruz’s motion for want of an
available visa. Because this is an independent ground for denial of De La Cruz’s motion, we
need not reach the issue of whether the voluntary-departure penalties attached.
Finally, the BIA did not err in its denial of De La Cruz’s motion for administrative
closure to await the availability of a visa. The BIA denied this relief because De La Cruz did not
present his argument for closure either at the 2012 hearing or indeed before the final order of
removal was entered. De La Cruz argues that the same BIA member ordered administrative
closure in another case in which the final order had been entered. The decision to deny
administrative closure in De La Cruz’s case, however, was not based solely on a final order’s
existence; the BIA also denied relief upon De La Cruz’s failure to present the visa-availability
argument at the 2012 hearing. In order to administratively close a case in which a final order has
been entered, the BIA must first reopen the case. Because the evidence for De La Cruz’s visa-
availability argument was available at the time of his 2012 hearing, a reopening and subsequent
closure was not warranted. The BIA did not abuse its discretion in reaching this conclusion.
De La Cruz further argues that, in denying his motion for administrative closure, the BIA
failed to consider each factor laid out in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). De
La Cruz cites a headnote from Avetisyan and argues that its language requires the BIA to
consider a list of factors in analyzing a motion for administrative closure. This argument is
unpersuasive. The actual text of Avetisyan states that “when evaluating a request for

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administrative closure, it is appropriate for an Immigration Judge or the Board to weigh all
relevant factors presented in the case,” including certain enumerated factors. Avetisyan, 25 I&N
Dec. at 696 (emphasis added). This is not an imposition of a requirement, but rather a statement
that an IJ or the BIA may consider various factors. Where, as here, the BIA’s administrative-
closure decision rested on its determination not to reopen the case in order to administratively
close it, the Board did not abuse its discretion in not explicitly mentioning these factors. The
BIA thus did not abuse its discretion in denying De La Cruz’s motion for administrative closure.
De La Cruz’s petitions for review are denied.

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HELENE N. WHITE, Circuit Judge, concurring. I concur except with respect to the
determination that the grant of voluntary departure was a modification of the IJ’s order, not a
reversal. The government has not asked us to construe this action as a modification and we need
not decide the issue because, in either case, any error was harmless for the reasons stated.

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