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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10937
Non-Argument Calendar
____________________
MARIBEL CASTANEDA-REYES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A056-610-539
____________________
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2 Opinion of the Court 21-10937
Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Maribel Castaneda-Reyes seeks review of the Board of Im-
migration Appeals’ (“BIA”) order affirming the Immigration
Judge’s (“IJ”) denial of her application for cancellation of removal
and denying her motion to remand her case to the IJ for the con-
sideration of new evidence. She raises two issues. First, she argues
that the BIA failed to apply de novo review when reviewing the IJ’s
determination that she was not entitled to cancellation of removal
as a matter of discretion, and that the BIA applied the wrong legal
standard for cancellation of removal because it did not consider all
of her positive equities and mischaracterized the evidence in its dis-
cussion of the negative equities. Second, she argues that the BIA,
in denying her motion to remand, erred by failing to accept as true
the contents of her and her mother’s declarations supporting the
motion.
I.
We review the BIA’s decision as the final agency decision,
and we review the IJ’s decision as well to the extent that the BIA
expressly adopts or agrees with it. Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 403 (11th Cir. 2016). We review whether we have
subject matter jurisdiction de novo. Blanc v. U.S. Att’y Gen.,
996 F.3d 1274, 1277 (11th Cir. 2021). Questions of law are also
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21-10937 Opinion of the Court 3
reviewed de novo. Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 48 (11th
Cir. 2010).
Under the discretionary decision jurisdictional bar, we lack
jurisdiction to review “any judgment regarding the granting of” an
application for cancellation of removal. Immigration and Nation-
ality Act (“INA”) § 242(a)(2)(B)(i),
8 U.S.C. § 1252(a)(2)(B)(i); see
Patel v. U.S. Att’y Gen.,
971 F.3d 1258, 1272 (11th Cir. 2020) (en
banc), aff’d,
142 S. Ct. 1614 (2022). Under the criminal alien bar,
we lack jurisdiction to review a final order of removal against “an
alien who is removable by reason of having committed a criminal
offense covered in”
8 U.S.C. § 1227(a)(2)(B). INA §242(a)(2)(C),
8 U.S.C. § 1252(a)(2)(C). Notwithstanding those jurisdictional bars,
we retain jurisdiction to consider constitutional claims and ques-
tions of law. INA § 242(a)(2)(D),
8 U.S.C. § 1252(a)(2)(D). Consti-
tutional claims or questions of law must be colorable, though, and
“a party may not dress up a claim with legal or constitutional cloth-
ing to invoke [this Court’s] jurisdiction.” Patel, 971 F.3d at 1272. A
petitioner may not bring a factual challenge to an order denying
cancellation of removal. Id.
An argument that the BIA or IJ improperly weighed evi-
dence is a “garden-variety abuse of discretion argument” rather
than a question of law or constitutional claim. Flynn v. U.S. Att’y
Gen.,
752 F.3d 1250, 1252 (11th Cir. 2014) (quotation marks omit-
ted). However, an argument that the BIA applied the wrong legal
standard is a question of law. Jeune v. U.S. Att’y. Gen.,
810 F.3d
792, 799 (11th Cir. 2016); see also Patel, 971 F.3d at
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4 Opinion of the Court 21-10937
1283-84 (explaining that we have jurisdiction over the alleged mis-
application of a legal standard). We must “look hard” at the peti-
tioner’s actual arguments—not just her description of her claims—
to determine whether we have jurisdiction. Jimenez-Galicia v. U.S.
Att’y Gen.,
690 F.3d 1207, 1210–11 (11th Cir. 2012) (overruled on
other grounds by Patel, 971 F.3d at 1283).
Here, Castaneda-Reyes’s claim that the BIA failed to apply
de novo review is a reviewable question of law, but it fails on the
merits because nothing about the BIA’s decision is inconsistent
with its express statement that it reviewed the IJ’s discretionary de-
cision de novo. Castaneda points to three factual errors that ap-
peared in both the IJ and BIA opinions as proof. However, her con-
tention that both misstated her date of release is belied by the rec-
ord: she initially testified that she was released in June and then
changed it to July. The IJ clarified that she meant “June 10th of
2019” and she agreed. Additionally, the record supports that BIA
did not misstate the information about her support of her children.
Her testimony revealed limited paid employment and she herself
testified that her cleaning of her aunt’s house provided her with “a
couple of bucks.” She does point to one error found in both opin-
ions but that is not enough to support a claim that the BIA did not
employ the proper standard of review. Next, Castaneda-Reyes’s
arguments about the BIA’s consideration of the positive equities
and its purported mischaracterization of the evidence in discussing
the negative factors are framed as legal questions, but in substance
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21-10937 Opinion of the Court 5
challenge the BIA’s weighing of evidence. As such, we lack juris-
diction to consider them.
II.
We construe a motion to remand that seeks to introduce
new evidence as a motion to reopen, and we generally review the
denial of a motion to reopen for an abuse of discretion. Ali v. U.S.
Att’y Gen.,
643 F.3d 1324, 1329 (11th Cir. 2011). An error of law is
an abuse of discretion per se. Alikhani v. United States,
200 F.3d
732, 734 (11th Cir. 2000). The jurisdictional bars in INA § 242(a)(2),
8 U.S.C. § 1252(a)(2), apply to a BIA decision refusing to reopen an
order denying discretionary relief or refusing to reopen a final re-
moval order against a criminal alien. Patel v. U.S. Att’y Gen.,
334 F.3d 1259, 1262 (11th Cir. 2003).
A motion to reopen must state the new facts that will be
proven at a hearing to be held if the motion is granted and be sup-
ported by affidavits or other evidentiary material. INA
§ 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B). Such a motion “shall not
be granted unless it appears to the [BIA] that [the] evidence sought
to be offered is material and was not available and could not have
been discovered or presented at the former hearing.”
8 C.F.R.
§ 1003.2(c)(1). The materiality requirement means the movant
must show that “if the proceedings were reopened, the new evi-
dence would likely change the result in the case.” Jiang v. U.S. Att’y
Gen.,
568 F.3d 1252, 1256-57 (11th Cir. 2009).
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6 Opinion of the Court 21-10937
Although we have not yet addressed the issue of whether
the BIA is required to credit the contents of a declaration support-
ing a motion to reopen, other circuits have held that the BIA must
generally accept declarations as true. See, e.g., Silva v. Garland,
993 F.3d 705, 718 (9th Cir. 2021) (“The BIA may not make credibil-
ity determinations on motions to reopen . . . and must accept as
true the facts asserted by the [movant], unless they are inherently
unbelievable.” (quotation marks and citations omitted)); Trujillo
Diaz v. Sessions,
880 F.3d 244, 252-53 (6th Cir. 2018) (“[I]n adjudi-
cating a motion to reopen, the BIA ‘must accept as true reasonably
specific facts proffered by an alien in support of a motion to reopen
unless it finds those facts to be inherently unbelievable.’” (citing
Haftlang v. INS,
790 F.2d 140, 143 (D.C. Cir. 1986))).
We may not review a final order of removal unless “the alien
has exhausted all administrative remedies available to the alien as
of right.” INA § 242(d)(1),
8 U.S.C. § 1252(d)(1). The exhaustion
requirement is jurisdictional and precludes review of a claim that
was not presented to the BIA. Amaya-Artunduaga v. U.S. Att’y
Gen.,
463 F.3d 1247, 1249- 50 (11th Cir. 2006). However, a peti-
tioner is not required to exhaust a challenge to a legal error that
does not exist until the BIA issues its decision; instead, the peti-
tioner may raise that challenge in her petition for review. See In-
drawati v. U.S. Att’y Gen.,
779 F.3d 1284, 1299 (11th Cir. 2015) (re-
jecting government argument that petitioner failed to exhaust an
argument that the BIA’s decision reflected a lack of reasoned con-
sideration); but see Alexis v. U.S. Att’y Gen.,
431 F.3d 1291,
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21-10937 Opinion of the Court 7
1296 (11th Cir. 2005) (concluding that petitioner failed to exhaust—
during her post-exclusion proceedings seeking adjustment of sta-
tus—a challenge to a finding from her original exclusion proceed-
ings that she was excludable on the basis of fraud, as the petitioner
could have, but did not, move to reopen or reconsider the earlier
exclusion order).
As an initial matter, Castaneda-Reyes’s failure to seek recon-
sideration of the BIA’s denial of her motion to remand does not
constitute a failure to exhaust her administrative remedies. Be-
cause a petitioner is not required to exhaust a challenge to a legal
error that does not exist until the BIA issues its decision, she may
argue, in her petition for review, that the BIA committed a legal
error in its order denying her motion.
Here, assuming arguendo that the BIA must credit the con-
tents of a declaration in support of a motion to remand, the BIA did
not commit legal error because the record does not support Cas-
taneda-Reyes’s contention that the BIA failed to accept her and her
mother’s declarations as true. Rather than discrediting Castaneda-
Reyes’s mother’s declaration, the BIA concluded that the motion
failed to introduce previously unavailable, material evidence be-
cause the medical records were inconclusive as to whether her
mother began suffering from a new or sufficiently more severe
condition following the merits hearing. Likewise, the language of
the BIA decision shows that it determined that the lay evidence in-
cluded in Castaneda-Reyes’s declaration concerning her symptoms
and treatment was insufficiently material to justify a remand.
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8 Opinion of the Court 21-10937
PETITION DENIED IN PART, DISMISSED IN PART.
