Mario Tapia Bravo v. MERRICK B. GARLAND, Attorney General

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0374n.06
Nos. 20-3318/4039/24-3108/3706
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARIO TAPIA BRAVO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
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ON PETITIONS FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS
ORDER
Before: BATCHELDER, WHITE, and STRANCH, Circuit Judges.
Mario Tapia Bravo petitions this court for review of an order of the Board of Immigration
Appeals (BIA) denying his motion to reopen his removal proceedings. This case has been referred
to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed.
Fed. R. App. P. 34(a). For the reasons below, we vacate in part and remand his petition for
review.
I.
During the course of his removal proceedings, Bravo’s army-enlisted daughter (and a
naturalized citizen) filed an I-130 visa petition on his behalf, and Bravo filed the supplementary
documents related thereto. Bravo states, and the government does not contest, that his I-130 visa
petition has since been approved, but it was not considered below.
An approved I-130 visa petition satisfies the requirement that an immigrant visa be
immediately available when the alien files his or her application, making the alien eligible for

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Nos. 20-3318/4039/24-3108/3706, Tapia Bravo v. Garland
adjustment of status. INS v. Miranda, 459 U.S. 14, 15 (1982) (per curiam); 8 U.S.C. § 1255(a).
We are mindful of the jurisdictional balance that we must strike in choosing whether to review a
motion to reopen. Hernandez-Perez v. Whitaker, 911 F.3d 305, 315 (6th Cir. 2018). But we also
recognize the “safety valve” role that this court holds, ensuring “that the BIA lives by its rules and
at least considers new information.” Id. (citing Pilica v. Ashcroft, 388 F.3d 941, 948 (6th Cir.
2004). Therefore, this matter is remanded with instructions to consider Bravo’s I-130 visa petition
and its effect on his removal proceedings.
Moreover, we are not convinced by the government’s position that Bravo has forfeited
claims related to his approved I-130 visa petition because of a supposed failure to exhaust his
claims. “Under the plain language of [8 U.S.C.] § 1252(d)(1), a noncitizen must exhaust all
administrative remedies available to the alien as of right.” Santos-Zacaria v. Garland, 598 U.S.
411, 424 (2023) (internal quotation marks omitted). However, discretionary remedies such as
“[c]ancellation of removal, voluntary departure, and adjustment of status” are not available as of
right. Id. at 426. So, the exhaustion requirement of § 1252(d)(1) does not apply here. “[B]ecause
§ 1251(d)(1) requires only exhaustion of remedies available as of right, . . . a noncitizen need not
exhaust discretionary remedies.” Id. at 425 (cleaned up).
II.
For the reasons explained, we vacate in part and remand Bravo’s petition for review for
further proceedings consistent with this order to consider the effect of Bravo’s I-130 visa petition
on his removal proceedings.
ENTERED BY ORDER OF THE COURT
__________________________________
Kelly L. Stephens, Clerk

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