Linares-Recendiz v. Bondi

Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 5, 2026 _________________________________ Christopher M. Wolpert Clerk of Court JUAN LINARES-RECENDIZ, Petitioner, v. No. 23-9575 (Petition for Review) TODD BLANCHE, United States Attorney General, * Respondent. _________________________________ ORDER AND JUDGMENT ** _________________________________ Before HOLMES, Chief Judge, MORITZ, and FEDERICO, Circuit Judges. _________________________________ Juan Linares-Recendiz petitions for review of a final order of removal denying his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). Although an immigration judge (IJ) granted his application, the Board of Immigration Appeals (BIA) reversed. It found Todd Blanche is now the Attorney General of the United States and has been * substituted as Respondent. See Fed. R. App. P. 43(c)(2). After examining the briefs and appellate record, this panel has determined ** unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 2 Mr. Linares statutorily ineligible for cancellation of removal because his United States citizen daughter had reached the age of 21 before the IJ issued her decision and therefore no longer was a qualifying relative for purposes of cancellation. See 8 U.S.C. § 1229b(b)(1)(D) (including “child” as a qualifying relative for purposes of cancellation eligibility based on hardship resulting from noncitizen’s removal); id. § 1101(b)(1) (defining a “child” as “an unmarried person under twenty-one years of age”). We abated Mr. Linares’s petition for review pending our decision in Rangel-Fuentes v. Bondi, 155 F.4th 1138 (10th Cir. 2025). In Rangel-Fuentes, we upheld the BIA’s decision “that § 1229b(b)(1)(D) contemplates assessing a qualifying child’s age when the [IJ] issues a decision.” Id. at 1145. Because the petitioner’s child was 22 years old when the IJ issued a decision in Rangel-Fuentes, we agreed the petitioner was not eligible for cancellation of removal. See id. Following our decision, Mr. Linares filed a supplemental brief in which he conceded that Rangel-Fuentes foreclosed most of the arguments raised in his opening brief. But he addressed a single, remaining contention: the agency’s method of distributing discretionary grants of cancellation of removal under the applicable annual cap favors detained applicants over those who are not detained and is therefore arbitrary and capricious. Mr. Linares asks us to modify the agency’s policy and to remand so that the agency may recalibrate his eligibility through a procedure that treats detained and non-detained applicants alike. Because he did not adequately exhaust this argument, however, we deny the petition for review. 2  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 3 BACKGROUND Mr. Linares is a native and citizen of Mexico who entered the United States in 1996, without being admitted or paroled after inspection. In 2011 the Department of Homeland Security (DHS) served him with a Notice to Appear (NTA) charging him with being inadmissible to the United States. In proceedings before the IJ, Mr. Linares admitted the allegations in the NTA and conceded the charge of inadmissibility. In 2012, he filed an application for nonpermanent resident cancellation of removal. His application cited the exceptional and extremely unusual hardship that his United States citizen daughter G.R., then fourteen years old, would face if he were removed from the United States. Cancellation of removal involves a two-step process. “First, the IJ must decide whether the noncitizen is eligible for cancellation under the relevant statutory criteria. Second, an IJ decides whether to exercise [her] discretion favorably and grant the noncitizen relief in the particular case.” Wilkinson v. Garland, 601 U.S. 209, 212-13 (2024). At the first step, a petitioner must establish (1) he has been continuously physically present in the United States for at least 10 years; (2) he had a good moral character during that period; (3) he has not been convicted of a disqualifying offense; and (4) his removal would result in exceptional and extremely unusual hardship for a qualifying relative—either a “spouse, parent, or child” who is a United States citizen or legal permanent resident. § 1229b(b)(1)(A)-(D). The IJ held two hearings on Mr. Linares’s application in late 2017. At the conclusion of the second hearing the IJ reserved her decision because the 3  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 4 immigration courts had already reached the annual cap on cancellation of removal grants for fiscal year 2018. See 8 U.S.C. § 1229b(e)(1) (limiting cancellation grants to 4,000 noncitizens in a fiscal year). In the fall of 2018, as G.R. approached her 21st birthday, Mr. Linares asked the IJ to release her reserved decision and assign him any available cancellation grant for fiscal year 2019 or previous fiscal years. The IJ denied his request, citing § 1229b(e). In June 2019, the IJ entered a written decision granting Mr. Linares’s application. The IJ found both that Mr. Linares had demonstrated his statutory eligibility for relief and that he merited a favorable exercise of discretion. The IJ noted that at the time of her decision, G.R. was 21 years old and therefore could no longer serve as a qualifying relative for purposes of cancellation relief. But she found that an exception to this age-based ineligibility applied because an undue or unfair delay had occurred during removal proceedings, and the delay was not primarily attributable to Mr. Linares. Specifically, the IJ noted that proceedings commenced when G.R. was 13 years old and had lasted for nearly eight years, including the court’s multiple postponements of his hearings. The IJ also noted that, at the time of the merits hearings on the cancellation claim G.R. had still been 20 years old. The DHS appealed the IJ’s decision to the BIA. The BIA concluded Mr. Linares was statutorily ineligible for cancellation of removal because G.R. had aged out of qualifying relative status before the IJ issued her final decision in June 2019. It disagreed with the IJ’s conclusion that unfair delays occurred in Mr. Linares’s 4  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 5 proceedings. The BIA vacated the IJ’s grant of cancellation relief and ordered Mr. Linares removed to Mexico. He petitioned for review. DISCUSSION As noted, Mr. Linares has abandoned all but a single argument: whether the agency’s “distribution of cancellation grants” under the annual cap “favors detained applicants and is therefore arbitrary and capricious.” Suppl. Br. at 20 (emphasis omitted). He attacks a policy directive in the agency’s Operating Policies and Procedures Manual (OPPM). See U.S. Dept of Just., Exec. Off. for Immigr. Rev. (2012), Operating Policies and Procedures Memorandum 12-01: Procedures on Handling Applications for Suspension/Cancellation in Non-Detained Cases Once Numbers are no Longer Available in a Fiscal Year, https://web.archive.org/web/20150629220123/http://www.justice.gov/sites/default/fil es/eoir/legacy/2012/02/03/12-01.pdf. [https://perma.cc/LK4Z-8K4J]. OPPM 12-01 was in effect at the time of Mr. Linares’s IJ hearing. 1 In OPPM 12-01, the Chief Immigration Judge set forth procedures “for reserving decision in non-detained suspension of deportation or cancellation of removal cases which are subject to the [statutory] cap.” Id. at 2. The policy creates a “‘cut-off’ date” once 3,500 suspension or cancellation cases have been granted in a fiscal year. Id. After the cut- 1 OPPM 12-01 has been superseded by OPPM 17-04. See U.S. Dept of Just., Exec. Off. of Immigr. Rev., [Applications for] Cancellation of Removal or Suspension of Deportation that are Subject to the Cap, FIM-OPPM 17-04, 2017 WL 6766314 (EOIR Dec. 20, 2017), which became effective for hearings concluded on or after January 4, 2018. 2017 WL 6766314, at *1. As Linares points out, the policy he challenges in OPPM 12-01 is similar to the policies continued in OPPM 17-04. 5  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 6 off date has been reached, IJs must reserve decision in non-detained cases that are subject to the cap, until a grant can be made official once space is available under the cap. But the directive provides that “[t]he Office of the Chief Immigration Judge is administering the cap so as to permit detained cases involving . . . cancellation of removal to proceed throughout the fiscal year. Therefore, the cap procedures identified herein relate only to non-detained cases.” Id. (emphasis added). Mr. Linares argues that it is arbitrary and capricious to issue favorable decisions to detained noncitizens rather than reserving those decisions as in the case of non-detained noncitizens. He contends this distinction is “untethered to the comparable worthiness of the applicants,” because when a noncitizen is denied bond and detained, it is “an indication that there are significant, negative discretionary factors at play.” Suppl. Br. at 22. This, he says, is contrary to “the purpose of the cancellation statute, which is to grant relief to the most deserving applicants.” Id. at 24. As a threshold matter, we consider whether Mr. Linares adequately exhausted this argument before the BIA. In general, “[a] court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right . . . .” 8 U.S.C. § 1252(d)(1). “In other words, [a noncitizen] must present the same specific legal theory to the BIA before he or she may advance it in court.” Miguel-Pena v. Garland, 94 F.4th 1145, 1154 (10th Cir. 2024) (internal quotation marks omitted). 6  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 7 Here, the exhaustion issue comes to us in an unusual posture. Recall that the IJ granted Mr. Linares relief; it was the government that appealed to the BIA. Given this procedural history, even though Mr. Linares did not present the precise argument to the BIA that he makes to us now, the government disclaims any reliance on statutory exhaustion. Resp. Br. at 12 n.5. 2 The government argues instead that, because “an agency must have the opportunity to rule on a challenger’s arguments before the challenger may bring those arguments to court,” we should decline to address Mr. Linares’s issue on “prudential” grounds. Id. at 12-13 (internal quotation marks omitted). The government may, of course, waive the statutory exhaustion requirement. Santos-Zacaria v. Garland, 598 U.S. 411, 423 (2023) (government may waive or forfeit statutory exhaustion under § 1252(d)(1)). But waiver only comes into play when the government has actually waived the requirement. Where, for example, the government has merely forfeited the issue, our case law permits us to consider that the claim-processing rule of exhaustion “implicates values beyond the concerns of the parties” and to apply exhaustion sua sponte. Miguel-Pena, 94 F.4th at 1157. At first glance, it might appear the government has affirmatively waived the 2 In disclaiming reliance on statutory exhaustion, the government explains Linares (1) was not required to exhaust his argument by filing a cross-appeal to the BIA because he had already prevailed before the IJ on his cancellation application, and (2) was not required to raise the issue in a motion for reconsideration. See Santos-Zacaria v. Garland, 598 U.S. 411, 424-25 (2023) (stating petitioner need not exhaust discretionary remedies before the BIA, including reconsideration and reopening). 7  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 8 exhaustion requirement here. See id. (“A waived claim or defense is one that a party has knowingly and intelligently relinquished . . . .” (internal quotation marks omitted)). But in fact, the government extends the waiver with one hand, only to snatch it back with the other by invoking prudential exhaustion. And the reasons the government supplies for prudential exhaustion, see Resp. Br. at 12-13, are essentially the same as those underlying statutory exhaustion under § 1252(d)(1), see Miguel-Pena, 94 F.4th at 1158 (discussing reasons for permitting court to determine exhaustion issue even when forfeited). Under the circumstances, we decline to treat the government’s statements as a binding waiver. Instead, in the absence of either a clearcut waiver or invocation of exhaustion by the government, we will “exercise our discretion to consider whether [Mr. Linares] exhausted [his argument] as required by § 1252(d)(1).” Id. In making this determination, we keep in mind that our review is delimited by the fact that Mr. Linares has not filed a reply brief to address the government’s exhaustion argument. And a party that fails to file a reply brief waives “any non-obvious rejoinders to arguments raised in the response brief.” In re Syngenta AG MIR 162 Corn Litig. (Hossley-Embry Grp. II), 111 F.4th 1095, 1110 n.15 (10th Cir. 2024). We begin by comparing Mr. Linares’s argument before the BIA to the argument he makes to us. In his BIA brief, Mr. Linares argued that the DHS’s reading of § 1229b(b)(1)(D), which required it to determine whether the qualifying child was under 21 at the time the IJ’s decision was issued, was arbitrary and 8  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 9 capricious. R., vol. 1 at 32-38. Mr. Linares supplied several reasons for this contention, including (1) the plain language of the statute; (2) the lack of a mechanism under OPPM 12-01 for reevaluating the hardship factors after the evidentiary hearing; (3) the de facto redefinition of a qualifying child resulting from the delay between the IJ’s reserved decision and its issuance; (4) the arbitrary and capriciousness of DHS’s interpretation of the statute resulting from random assignment of hearing dates; and (5) the unreasonableness of interpreting the statute to “penalize[] non-detained cancellation applicants for cap-created delays.” Id. at 36. In this last argument he cited the distinction OPPM 12-01 made between detained and non-detained applicants, calling it arbitrary and capricious. See id. at 37. But Mr. Linares noted the distinction as part of his argument that the BIA should adopt his statutory argument that eligibility is determined at the time of the IJ hearing, rather than at a later date when a reserved decision is issued. See id. at 36. To be sure, he explained that all of the “unfair distinctions” he had cited were “arbitrary and capricious,” “untethered from the purpose of the cancellation statute,” and “must be rejected.” Id. at 38. But this was consistent with his attack on the agency’s statutory interpretation as a basis for affirming the IJ’s decision. At the conclusion of his BIA brief, Mr. Linares asked the BIA to affirm the IJ’s grant of cancellation of removal and to dismiss the DHS appeal. By contrast, Mr. Linares now argues that, irrespective of the issues of statutory interpretation that this court resolved against his position in Rangel-Fuentes, we should order the agency to apply the challenged portions of OPPM 12-01 (and 9  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 10 corresponding provisions of OPPM 17-04) to all applicants, detained and non- detained, including himself. He further argues that the agency’s grants under this policy should be recalibrated to afford him relief. See Suppl. Br. at 24 (“To remedy this unfair policy, this Court should order that all cancellation applicants, detained and non-detained, be subject to the grant reservation policy as currently outlined in OPPM 17-04. As for Mr. Linares, his case should be remanded to the [BIA] to determine how short his wait would have been had EOIR not given unfair preference to detained applicants in years past and then adjust his grant date accordingly, nunc pro tunc.”). Mr. Linares’s argument has thus undergone significant metamorphosis as compared to his argument to the BIA. Asking this court to compel the BIA to retrospectively rewrite agency policy and to conduct a recalibration of the results of that policy is different from opposing the DHS’s interpretation of a statute. To be sure, issues of “statutory interpretation” and “arbitrary and capricious” review may overlap. See, e.g., Rest. Law Ctr. v. U.S. Dep’t of Lab., 120 F.4th 163, 175 (5th Cir. 2024). But an argument that attacks and seeks to modify an agency policy presents a different theory of relief than an argument that the effect of that policy (along with other agency policies or procedures) weighs against the agency’s interpretation of a governing statute. Although Mr. Linares’s BIA brief urged rejection of the policy preferences articulated in OPPM 12-01 along with other policies that he claimed made the agency’s statutory interpretation arbitrary and capricious, he did not clearly articulate his intention to seek invalidation or 10  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 11 modification of that policy statement as a freestanding matter. See, e.g., Judulang v. Holder, 565 U.S. 42, 52 & n.7 (2011) (discussing application of APA’s “arbitrary and capricious” standard within removal proceedings). In short, Mr. Linares’s sole remaining argument is unexhausted. We will not consider it, and we deny his petition on that issue. CONCLUSION We deny the petition for review. Entered for the Court Jerome A. Holmes Chief Judge 11  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 12 No. 23-9575, Linares-Recendiz v. Blanche FEDERICO, Circuit Judge, dissenting. The exhaustion rule should not be applied so stringently in this case. Given the procedural history, it is questionable whether the exhaustion rule applies at all. Regardless, the right move is for this court to remand back to the Agency to consider the argument raised in the first instance, rather than outright denying the petition. We “may review a final order of removal only if . . . [the petitioner] has exhausted all administrative remedies available to the [petitioner] as of right[.]” 8 U.S.C. § 1252(d)(1). This exhaustion requirement is non- jurisdictional and thus operates as a claim processing rule. Santos-Zacaria v. Garland, 598 U.S. 411, 416–23 (2023). Accordingly, rather than “set[ting] the bounds of the ‘court’s adjudicatory authority’ . . . [it] govern[s] how courts and litigants operate within those bounds.” Id. at 418. We have interpreted the exhaustion requirement to require “present[ing] the same specific legal theory to the BIA before . . . advanc[ing] it” before this court. Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010), abrogated on other grounds by, Santos-Zacaria, 598 U.S. 411; Miguel-Pena v. Garland, 94 F.4th 1145, 1154 (10th Cir. 2024). As the majority explains, Linares was granted relief by an IJ, the government appealed, and the BIA held Linares was statutorily ineligible  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 13 for relief. Linares’ appeal was abated pending our decision in Rangel- Fuentes v. Bondi, 155 F.4th 1128 (10th Cir. 2025). Once decided, Rangel- Fuentes foreclosed most of Linares’ arguments. We called for supplemental briefing, and Linares then rightfully narrowed his argument to address what was left of it following our holding in Rangel-Fuentes. The majority concludes Linares’ argument has “undergone significant metamorphosis as compared to his argument to the BIA.” Majority at 10. But that is not completely accurate. Linares’ argument did not change. Compare R. I at 36–37 with Op. Br. at 55–59 and Supp. Br. at 20–24. What changed is the relief he requested from this court following Rangel-Fuentes, as compared to the relief he originally requested from this court prior to Rangel-Fuentes and the relief he requested from the BIA. That is, the argument underlying his requested relief is the same argument that he briefed before the BIA, although the BIA did not rule on it. So, his argument has not changed and presents the “same specific legal theory.” Garcia- Carbajal, 625 F.3d at 1237. The more precise question is whether to strictly apply the § 1252(d)(1) exhaustion rule when only a petitioner’s requested relief pivots after a change in the law or case posture. I find no authority that says the answer to that question must be yes, and the majority likewise cites to none. 2  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 14 For example, in Garcia-Carbajal, this court encountered the opposite and more common situation – a petitioner who changed his argument but requested the same relief. This court relied upon the “fundamental principle of administrative law that an agency must have the opportunity to rule on a challenger’s arguments before the challenger may bring those arguments to court.” 625 F.3d at 1237. Here, the BIA did have that opportunity – it just ruled on other grounds. Although I did not uncover any caselaw that addresses the situation we confront here, admittedly the suggestive authority does point towards applying the exhaustion rule. See, e.g., Gill v. I.N.S., 420 F.3d 82, 86 (2d Cir. 2005), overruled on other grounds, Grullon v. Mukasey, 509 F.3d 107, 115 (2d Cir. 2007); Seegobin v. Ashcroft, 112 F. App’x 195 (3d Cir. 2004). But again, even if persuasive, these cases are easily distinguishable from the present case and were also decided before the Supreme Court decided Santos-Zacaria, which held the statutory exhaustion rule is not jurisdictional. In any event, recognizing the magnitude of the relief Linares now requests – to essentially vacate an agency policy – declining to address the merits of his argument in this posture makes jurisprudential sense. Still, we should order a remand rather than deny the petition. “We enforce the exhaustion requirement by declining to consider the unexhausted issue.” 3  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 15 Miguel-Pena, 94 F.4th at 1155. A remand aligns with the purpose of imposing an exhaustion requirement in the first place – and gives the agency the opportunity to pass upon an argument that was previously raised before it, but it declined to address. See, e.g., Ortega-Cordova v. Garland, 107 F.4th 407, 414 (4th Cir. 2024) (considering an unexhausted issue may be remanded in exceptional circumstances); I.N.S. v. Orlando Ventura, 537 U.S. 12, 16–17 (2002) (“a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.”). It is unsurprising that courts have mostly denied petitions when applying the exhaustion rule. A large stack of opinions correctly points out that petitioners often raise arguments too late. Another contributing factor is that courts, including this one, previously considered statutory exhaustion to be a jurisdictional bar to the courts’ exercise of authority until the Supreme Court decision in Santos-Zacaria. See, e.g., Robles-Garcia v. Barr, 944 F.3d 1280, 1283–84 (10th Cir. 2019). Jurisdictional rules limit the court’s adjudicative authority. Thus, when exhaustion was considered jurisdictional, courts could do nothing with the matter other than dismiss it. Shepherd v. Holder, 678 F.3d 1171, 1185 (10th Cir. 2012). That is no longer the state of play; exhaustion can now be forfeited or waived. Miguel- Pena, 94 F.4th at 1154–57. As the majority points out, the government does 4  Appellate Case: 23-9575 Document: 43-1 Date Filed: 11/05/2026 Page: 16 not even invoke statutory exhaustion here. Majority at 7–8. In applying statutory exhaustion, we are doing the work on its behalf. Our court’s application of the exhaustion rule should not be so formalistic as to produce unjust outcomes when an alternative remedy is readily available. I would remand this matter back to the BIA to consider Linares’ claim in the first instance. I respectfully dissent. 5