Background
Heraclio Torres-Jimenez, a Mexican citizen, entered the United States without admission or inspection in 1994. After the Department of Homeland Security initiated removal proceedings in 2017, he conceded removability and sought cancellation of removal. An immigration judge denied cancellation but granted voluntary departure, and the Board of Immigration Appeals affirmed the removal order in January 2025.
Torres-Jimenez then moved to reopen and terminate the proceedings based on an October 2024 VAWA self-petition, filed on Form I-360 as the parent of a U.S. citizen, and a concurrently filed Form I-485 application for adjustment of status. He submitted receipt notices but not the petitions themselves or information supporting their statutory grounds. The Board denied reopening because he had not shown that an immigrant visa was immediately available and therefore had not demonstrated prima facie eligibility for adjustment of status.
The Court’s Holding
The Sixth Circuit denied Torres-Jimenez’s petition for review. The per curiam majority held that his motion to reopen did not carry his heavy burden of showing a reasonable likelihood that he qualified for adjustment of status. The motion merely identified the pending filings, stated that he lacked disqualifying criminal history, and discussed his family and community ties; it did not address immediate visa availability or otherwise substantiate his eligibility for the requested relief.
On appeal, Torres-Jimenez argued that a VAWA self-petitioner in his position could file the I-360 and I-485 concurrently and that a visa was immediately available. The majority declined to grant relief on arguments he had not presented to the Board, even assuming the Board may have erred by suggesting that adjustment could be pursued only after approval of the I-360.
Judge Clay dissented. He concluded that the Board’s visa-availability analysis was circular and insufficiently explained, and that federal regulations and agency materials supported, or at least left ambiguity concerning, Torres-Jimenez’s position. He would have granted review, vacated the Board’s order, and remanded for further proceedings rather than uphold the decision on grounds the Board had not articulated.
Key Takeaways
- A motion to reopen must present facts and evidence showing a reasonable likelihood of eligibility for the underlying relief; identifying pending immigration filings alone may not suffice.
- The majority would not grant relief based on a visa-availability theory that Torres-Jimenez had not advanced in his motion before the Board.
- The dissent viewed the Board’s explanation as inadequate and would have required the agency to clarify whether a visa was immediately available to this VAWA self-petitioner.
Why It Matters
The decision underscores the importance of fully developing every statutory element of adjustment eligibility in the motion to reopen itself, including immediate visa availability and the substantive basis for the underlying petition. Applicants cannot assume that receipt notices or concurrent filing will independently establish a prima facie case.
The divided panel also highlights an unresolved tension over how immediate visa availability operates for VAWA self-petitioning parents of adult U.S. citizens and when an appellate court should remand because the Board’s reasoning is incomplete.