Juan Carlos Pastor-Hernandez v. Pamela Bondi

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0285p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

JUAN CARLOS PASTOR-HERNANDEZ,

│

Petitioner, │

> No. 24-4104

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v. │

│

PAMELA BONDI, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals.

No. A 206 882 921.

Decided and Filed: October 17, 2025

Before: READLER, MURPHY, and BLOOMEKATZ, Circuit Judges.

_________________

COUNSEL

ON BRIEF: David C. Knowlton, KENNEDY, CICCONETTI, KNOWLTON & BARNARD

CO., LPA, Wooster, Ohio, for Petitioner. Justin R. Markel, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Respondent.

_________________

OPINION

_________________

MURPHY, Circuit Judge. Juan Carlos Pastor-Hernandez illegally entered the United

States. The Board of Immigration Appeals upheld an order to remove him to Guatemala.

Pastor-Hernandez then moved to reopen his removal proceedings so that he could seek relief that

would allow him to voluntarily depart the country. This relief required him to prove (among

other things) that he had the means to travel to Guatemala. Yet Pastor-Hernandez did not have a

Guatemalan passport. He instead sought to meet this requirement with the claim that he was in

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the process of obtaining one. But he did not submit his passport application or any other

concrete evidence. The Board thus denied his motion because it found this conclusory claim

insufficient. Pastor-Hernandez now argues that the Board applied the wrong legal standard to

deny his motion to reopen. It did not. So we deny his petition for review.

I

Pastor-Hernandez was born in Guatemala in 1997. He “speaks the indigenous Mayan

language of Quiche and identifies as Quiche Mayan.” Admin. R. (“A.R.”) 211. Starting in

2011, members of the Mara 18 gang began to harass Pastor-Hernandez. They stole his

motorcycle and threatened to kill him if he continued to speak his native language. The next

year, gang members asked him to join the gang. When he refused, he says that these individuals

cut his finger. The gang also continued to threaten him over the next couple years. Although

Pastor-Hernandez reported the gang to the police, the authorities did not help him. In November

2014 when he was 17 years old, he fled Guatemala to escape the gang. Pastor-Hernandez arrived

at the United States border the following month.

The day after Pastor-Hernandez entered the United States, the government issued him a

“notice to appear” in removal proceedings. This document explained that he was subject to

removal under 8 U.S.C. § 1182(a)(6)(A)(i). Pastor-Hernandez conceded that he was removable

as charged but sought asylum, withholding of removal, and relief under the Convention Against

Torture. An immigration judge denied these requests and ordered the government to remove

Pastor-Hernandez to Guatemala. The Board of Immigration Appeals upheld the immigration

judge’s decision.

In the meantime, the Supreme Court decided Niz-Chavez v. Garland, 593 U.S.

155 (2021). There, the Court considered what the phrase “notice to appear” meant for a law that

permits the Attorney General to cancel the removal of eligible immigrants. See id. at 158. The

Court held that only a single document can qualify as a “notice to appear” and that this document

must contain all required information (including the date of any removal proceedings). See id. at

158–72.

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Pastor-Hernandez believed that this decision opened a new remedy for him: voluntary

departure. That relief allows immigrants to leave the United States on their own and avoid a

formal removal order. See 8 U.S.C. § 1229c(b)(1). Yet the law grants this remedy only to

immigrants who have “been physically present in the United States for a period of at least one

year immediately preceding the date” they received their “notice to appear.” Id.

§ 1229c(b)(1)(A). While Pastor-Hernandez received a so-called “notice to appear” the day after

he entered the United States, that document did not qualify as valid under Niz-Chavez because it

did not include the date of his removal proceedings. So he now met the physical-presence

requirement for voluntary departure.

Pastor-Hernandez asked the Board to reopen his removal proceedings so that he could

seek this relief. The Board denied his motion. To obtain a voluntary-departure remedy, he

needed to show more than his continuous presence in the United States. He also needed to show

that he had “the means to depart” the country. Id. § 1229c(b)(1)(D). He sought to satisfy this

separate requirement through an affidavit stating that he was “in the process of renewing” his

Guatemalan passport and that he would have the passport if the Board “returned” his case “to the

Immigration Court.” A.R. 26. The Board found this evidence insufficient. It reasoned that

immigrants need a valid “passport” to return to their home country. A.R. 4. And it added that

Pastor-Hernandez did not include any “documentary evidence” to support his claim that he had

applied to renew his passport. Id. So the Board held that he had “not sufficiently shown that he

[would] be able to depart the United States under a grant of voluntary departure.” Id.

II

Pastor-Hernandez has petitioned our court to review the denial of his motion to reopen.

His petition requires us to describe the interaction between two immigration provisions: the

provision governing voluntary departure and the provision governing motions to reopen.

Start with voluntary departure. The immigration laws provide that the Attorney General

(or the Board by delegation) “may” allow certain qualifying immigrants to voluntarily depart the

country rather than face forcible removal. See 8 U.S.C. § 1229c(b)(1); Monsalvo v. Bondi,

145 S. Ct. 1232, 1236 (2025). This relief helps both sides. The government avoids the costs of

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removal, while immigrants avoid statutory penalties. See Dada v. Mukasey, 554 U.S. 1,

11 (2008). To obtain this relief, immigrants must meet four eligibility requirements. They must

have “been physically present” in this country for at least a year before they received their notice

to appear. 8 U.S.C. § 1229c(b)(1)(A). They must have possessed “good moral character” for a

five-year period. Id. § 1229c(b)(1)(B). They must not have been found deportable under

provisions that apply to certain criminals. Id. § 1229c(b)(1)(C). And, as most relevant here, they

must have “established by clear and convincing evidence that [they have] the means to depart the

United States and intend[] to do so.” Id. § 1229c(b)(1)(D). Even if immigrants meet these

requirements, though, they do not automatically qualify for relief. The statute’s use of the verb

“may” shows that the Attorney General has residual discretion over whether to allow immigrants

to voluntarily depart. Id. § 1229c(b)(1); see Dada, 554 U.S. at 8.

The immigration laws also limit our jurisdiction to review the Board’s denial of a request

for voluntary departure. See 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i); Hernandez v. Garland,

59 F.4th 762, 772 (6th Cir. 2023); Alhaj v. Holder, 576 F.3d 533, 536 (6th Cir. 2009). This

jurisdictional limit prohibits us from reviewing any factual findings underlying the denial or any

discretionary decision that an immigrant did not warrant this relief. See Patel v. Garland,

596 U.S. 328, 347 (2022); Hernandez, 59 F.4th at 767. That said, we retain the ability to review

“constitutional claims or questions of law” about a denial of voluntary departure. 8 U.S.C.

§ 1252(a)(2)(D); see Monsalvo, 145 S. Ct. at 1239–41; Alhaj, 576 F.3d at 536. And the phrase

“questions of law” includes not just a pure legal question (such as a question about what a statute

means) but also a mixed question of fact and law (such as a question about whether certain facts

satisfy a legal standard). See Wilkinson v. Garland, 601 U.S. 209, 218–19 (2024).

Turn to motions to reopen. Immigrants have the right to “file one motion to reopen” their

removal proceedings. 8 U.S.C. § 1229a(c)(7)(A). But the Supreme Court has long “disfavored”

these motions because immigrants have an incentive to file them merely to delay execution of

their final order of removal. INS v. Doherty, 502 U.S. 314, 323 (1992). So immigrants must

satisfy a “heavy burden” to justify reopening. INS v. Abudu, 485 U.S. 94, 110 (1988). They

must support any factual allegations with “affidavits or other evidentiary material.” 8 U.S.C.

§ 1229a(c)(7)(B). And if they seek new remedies, they must include the “application for relief

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and all supporting documentation.” 8 C.F.R. § 1003.2(c)(1); Alizoti v. Gonzales, 477 F.3d 448,

452 (6th Cir. 2007). This evidence must make out a “prima facie case for the relief sought[.]”

Doherty, 502 U.S. at 323. Under this standard, immigrants must establish a “reasonable

likelihood” (but need not make a “conclusive showing”) that they have satisfied the requirements

for the requested relief. Trujillo Diaz v. Sessions, 880 F.3d 244, 249–50 (6th Cir. 2018)

(citations omitted); see Alizoti, 477 F.3d at 452. And even if they meet this standard, the Board

still retains “broad discretion” over whether to grant motions to reopen. Kucana v. Holder,

558 U.S. 233, 242 (2010) (citation omitted).

The Supreme Court has held that circuit courts generally have jurisdiction to review

denials of motions to reopen. See Mata v. Lynch, 576 U.S. 143, 147–48 (2015). Yet, given the

Board’s discretion over these motions, courts must review denials under “a deferential, abuse-of-

discretion standard of review.” Valadez-Lara v. Barr, 963 F.3d 560, 567 (6th Cir. 2020)

(quoting Kucana, 558 U.S. at 242). And the Supreme Court has left open a more specific

jurisdictional question: What happens if courts would lack jurisdiction to review a denial of the

“underlying claim for relief” that an immigrant sought to raise in the motion to reopen that the

Board denied? Kucana, 558 U.S. at 250 n.17. Consider this case as an example: Pastor-

Hernandez seeks voluntary departure. We would lack jurisdiction over a discretionary decision

to deny that relief or over any factual findings underlying the denial. See Patel, 596 U.S. at 347;

Hernandez, 59 F.4th at 772. May Pastor-Hernandez avoid this jurisdictional limitation by raising

these discretionary or factual issues in a petition for review of a motion to reopen rather than the

initial final order of removal? Our cases have questioned this practice. See Khaytekov v. Barr,

794 F. App’x 497, 499–501 (6th Cir. 2019), vacated on other grounds, 141 S. Ct. 2591 (2021)

(mem.); Hernandez-Perez v. Whitaker, 911 F.3d 305, 315–16 (6th Cir. 2018); Pilica v. Ashcroft,

388 F.3d 941, 945–48 (6th Cir. 2004); see also Zhou v. Bondi, 134 F.4th 946, 950–52 (6th Cir.

2025).

But we need not decide whether any restrictions apply here. Pastor-Hernandez’s

challenge to the denial of his motion to reopen does not raise the type of question that we would

lack jurisdiction to consider. For example, Pastor-Hernandez does not challenge the Board’s

factual finding that he did not have a valid Guatemalan passport when he filed his motion. Cf.

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Singh v. Rosen, 984 F.3d 1142, 1155 (6th Cir. 2021). And the Board did not deny his request for

voluntary departure as a discretionary matter. Cf. Khaytekov, 794 F. App’x at 501.

Rather, Pastor-Hernandez raises a “question[] of law” about the Board’s ruling. 8 U.S.C.

§ 1252(a)(2)(D). The parties agree that he met all the requirements to seek voluntary departure

except the one requiring him to “establish[] by clear and convincing evidence that [he] has the

means to depart the United States[.]” Id. § 1229c(b)(1)(D). Pastor-Hernandez argued that he

satisfied this requirement because he testified that he was “in the process of renewing” his

Guatemalan passport and would have it at any future hearing. A.R. 26. But the Board held

that he had “not sufficiently shown” that he had the means to depart. A.R. 4. According to

Pastor-Hernandez, the Board committed a purely legal error because it required him to

conclusively prove (not merely create a prima facie case) that he could meet this means-to-depart

element at the motion-to-reopen stage. And the question whether the Board applied the correct

legal standard raises a pure issue of law that we have jurisdiction to review. See Ba v. Holder,

358 F. App’x 609, 612–13 (6th Cir. 2009); Alhaj, 576 F.3d at 536.

Still, Pastor-Hernandez’s claim fails on the merits. At the outset, he points to no

statements in the Board’s opinion suggesting that it misunderstood the governing legal standard.

The Board, for example, nowhere asserted that Pastor-Hernandez’s motion to reopen must

conclusively prove that he had the “means to depart” the country. 8 U.S.C. § 1229c(b)(1)(D).

To the contrary, the Board recognized that he must establish only “prima facie eligibility for the

relief sought” at this stage. A.R. 4 (emphasis added) (citing Matter of Chen, 28 I. & N. Dec.

676, 682 (B.I.A. 2023)).

Nor does the Board’s ultimate resolution evince any mistake of law. The parties do

debate a significant legal point about the showing required for a motion to reopen. All agree that

Pastor-Hernandez would have lacked the “means to depart” this country unless he had a valid

“passport or other travel documentation sufficient to assure lawful entry into” Guatemala.

8 C.F.R. § 1240.26(c)(2). And his affidavit showed that he did not have a valid Guatemalan

passport because he testified that he was “in the process” of obtaining one. A.R. 26. In other

words, Pastor-Hernandez testified that he would meet the eligibility requirements at some

unknown future date, not that he had met them at the time of his motion to reopen.

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This statement reveals an important question: May immigrants file motions to reopen that

seek relief based on future facts? The government answers no. As it points out, we have

repeatedly stated that immigrants who file motions to reopen must “make[] a prima facie

showing that the statutory requirements for the underlying relief have been met.” Yousif v. INS,

794 F.2d 236, 241 (6th Cir. 1986) (emphasis added); see Dieng v. Barr, 947 F.3d 956, 962 (6th

Cir. 2020); Trujillo Diaz, 880 F.3d at 249–50; Thawatchai Foythong v. Holder, 743 F.3d 1051,

1053 (6th Cir. 2014); Alizoti, 477 F.3d at 452. This past-tense language suggests that immigrants

must show a reasonable likelihood that they have established the relevant requirements at the

time they file their motion. Here, however, Pastor-Hernandez’s affidavit disavowed that “the

statutory requirements” for voluntary departure “ha[d] been met” then. Yousif, 794 F.2d at 241.

Pastor-Hernandez, by comparison, answers yes. He claims that the “reasonable

likelihood” test requires him to show only that he will likely be able to prove his eligibility

for the requested relief at the time of a future hearing on that relief. Trujillo Diaz, 880 F.3d at

249–50 (citation omitted). And he adds that his statement that he applied to obtain a passport

showed he would meet this eligibility requirement by that time.

What does the law have to say about this debate? The statute identifies the information

that motions to reopen must contain: “The motion to reopen shall state the new facts that will be

proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or

other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). One might read the phrase “new facts”

(in contrast to future facts) as referring to those facts that have come into existence in between

the final order of removal and the motion to reopen. Id. And a regulation requires the motion

itself to include the “application for relief and all supporting documentation.” 8 C.F.R.

§ 1003.2(c)(1). This requirement might also suggest that an immigrant must be eligible at the

time of the motion. On the other hand, one might read the phrase “will be proven at a hearing”

to put the focus on the facts that exist at the hearing date rather than the motion date. 8 U.S.C.

§ 1229a(c)(7)(B).

At day’s end, we need not answer this legal question because we do not view the Board’s

decision as resolving it. Rather, the Board denied Pastor-Hernandez relief on narrower grounds.

It explained that Pastor-Hernandez had failed to include any factual details to support his

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conclusory statement that he was in the process of seeking a new passport. What were the

applicable requirements to obtain a Guatemalan passport? Was he even eligible? Did he have

all the documents required to obtain a passport? Pastor-Hernandez did not answer any of these

questions. He also “submitted no documentary evidence of having applied for a passport.” A.R.

4. His failure to submit basic “evidence” in support of his claim “raised questions about

whether” he could ultimately meet the requirements for voluntary departure. Alizoti, 477 F.3d at

452. The Board thus did not commit a legal error by finding he did not establish a prima facie

case even assuming Pastor-Hernandez’s view that he could rely on future facts. See id.

Pastor-Hernandez’s responses do not change things. He claims that the Board

overlooked our precedent suggesting that it should treat motions to reopen like motions for

summary judgment by resolving all disputes of fact in his favor at this stage. See Trujillo Diaz,

880 F.3d at 252–53. And he says that the Board refused to accept as true his affidavit’s

statement that he would obtain a passport by the time of his hearing. But the Supreme Court has

traditionally compared motions to reopen to “motions for relief from judgment” rather than

“motions for summary judgment[.]” Dieng, 947 F.3d at 963 (discussing Abudu, 485 U.S. at

109–10). Besides, the Board would not have violated any summary-judgment rule by holding

that his affidavit failed to create a genuine factual dispute. Our caselaw leaves no doubt that a

civil litigant may not rely on “conclusory evidence” to survive a summary-judgment motion.

Viet v. Le, 951 F.3d 818, 823 (6th Cir. 2020). And the Board found Pastor-Hernandez’s evidence

too conclusory.

Our opinion in Trujillo Diaz also does Pastor-Hernandez no good. There, an immigrant

moved to reopen her removal proceedings to seek asylum, but the Board found that she had not

made out a prima facie case. 880 F.3d at 247–48. We held that the Board abused its discretion

because it did not accept as true the specific facts in an affidavit showing that a gang had targeted

her. Id. at 251–53. Yet this case looks nothing like Trujillo Diaz. Unlike the “reasonably

specific” statements in Trujillo Diaz, Pastor-Hernandez’s claim that he had applied for a new

passport qualifies as the type of “conclusory” evidence that the Board may reject. Id. at 253.

We deny the petition for review.