Background
Juan Linares-Recendiz, a native and citizen of Mexico, entered the United States in 1996 without being admitted or paroled after inspection. The Department of Homeland Security served him with a Notice to Appear in 2011, charging inadmissibility. He admitted the allegations and conceded the charge. In 2012, he applied for nonpermanent-resident cancellation of removal under 8 U.S.C. § 1229b(b), relying on the exceptional and extremely unusual hardship his removal would cause his U.S.-citizen daughter, G.R., who was then 14.
The immigration judge held hearings in late 2017 but reserved decision because the immigration courts had reached the fiscal year 2018 cap of 4,000 cancellation grants. As G.R. approached 21 in fall 2018, Linares-Recendiz asked the IJ to issue the reserved decision and assign any available grant; the IJ denied that request. In June 2019, the IJ granted relief, finding statutory eligibility and favorable discretion. Although G.R. was then 21 and no longer met the statutory definition of a “child,” the IJ applied an exception for undue or unfair delay not primarily attributable to Linares-Recendiz, citing nearly eight years of proceedings and multiple postponements.
DHS appealed. The Board of Immigration Appeals concluded that G.R. had aged out before the IJ’s final decision, rejected the unfair-delay rationale, vacated the grant, and ordered removal to Mexico. The Tenth Circuit later abated the petition pending Rangel-Fuentes v. Bondi, 155 F.4th 1138 (10th Cir. 2025), which upheld assessing a qualifying child’s age when the IJ issues the decision. Linares-Recendiz subsequently conceded that Rangel-Fuentes foreclosed most of his arguments.
The Court’s Holding
The majority denied the petition for review without reaching the merits of the sole remaining contention. Linares-Recendiz argued that Operating Policies and Procedures Memorandum 12-01, and corresponding provisions of OPPM 17-04, arbitrarily favored detained applicants by allowing their cancellation cases to proceed throughout the fiscal year while requiring reserved decisions in capped non-detained cases. He sought an order applying the reservation policy to detained and non-detained applicants alike and a remand to recalculate his grant date retroactively.
The court held that this freestanding challenge to agency policy was not adequately exhausted under 8 U.S.C. § 1252(d)(1). Before the BIA, Linares-Recendiz had cited the detained/non-detained distinction as one reason DHS’s interpretation of the qualifying-child statute was arbitrary and capricious. His requested agency relief was affirmance of the IJ’s grant and dismissal of DHS’s appeal. The majority distinguished that statutory-interpretation argument from his appellate request to modify agency policy independently and recalibrate prior grants. Although the theories could overlap, the BIA brief did not clearly present invalidation or modification of the policy as a separate theory of relief.
The government disclaimed statutory exhaustion but requested rejection on “prudential” exhaustion grounds. The majority declined to treat that position as a binding waiver and exercised its discretion to consider exhaustion. It also noted that Linares-Recendiz filed no reply addressing the government’s argument, thereby waiving non-obvious rejoinders. Judge Federico dissented. He reasoned that the underlying legal theory remained the same even though the requested relief changed after Rangel-Fuentes, and he would remand so the BIA could consider the policy argument in the first instance rather than deny the petition outright.
Key Takeaways
- The petition was denied on exhaustion grounds; the majority did not decide whether the detained/non-detained grant-distribution policy was arbitrary and capricious.
- Using a policy distinction to challenge statutory interpretation before the BIA did not exhaust a later, freestanding request to modify that policy and recalibrate earlier grants.
- The majority treated the government’s simultaneous prudential-exhaustion argument as inconsistent with a clear, binding waiver of statutory exhaustion.
- The dissent viewed the legal theory as preserved and favored remand, emphasizing that exhaustion is a nonjurisdictional claim-processing rule.
Why It Matters
The decision illustrates how closely the Tenth Circuit may compare the legal theory and requested relief presented to the BIA with those advanced on review. Its holding is tied to this record and procedural history, including the government’s appeal from an IJ grant, the intervening Rangel-Fuentes decision, the government’s equivocal exhaustion position, and the absence of a reply brief. It does not establish that every change in requested relief creates a new unexhausted claim.
The order and judgment is nonbinding precedent except under law of the case, res judicata, and collateral estoppel, though it may be cited for persuasive value. The panel decided the case on the briefs without oral argument.