NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0619n.06
Case No. 19-3149
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
TAKHIR ASHIROVICH KHAYTEKOV, ) Dec 16, 2019
) DEBORAH S. HUNT, Clerk
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION AP-
WILLIAM P. BARR, Attorney General, ) PEALS
)
Respondent. )
BEFORE: COLE, Chief Judge; SILER and MURPHY, Circuit Judges.
MURPHY, Circuit Judge. In 2001, Takhir Ashirovich Khaytekov came to the United
States from Uzbekistan on a temporary visa lasting six months. He never left. Six years later,
authorities caught wind of his unauthorized presence and started proceedings to remove him. See
8 U.S.C. § 1227(a)(1)(B). In response, Khaytekov initially applied for asylum. After he married
a U.S. citizen, he withdrew his asylum application and substituted an application asking for an
adjustment of his status to that of a lawful permanent resident. See id. § 1255(a)
Khaytekov’s misrepresentations derailed his adjustment-of-status application, as an immi-
gration judge found that he lied about many things during his immigration proceedings. To stay
in this country, for example, Khaytekov falsely claimed in his asylum application that he had been
“brutally attacked” by “nationalist and fascist” groups in Uzbekistan. According to the judge,
Case No. 19-3149, Khaytekov v. Barr
Khaytekov’s lies rendered him inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i), which, in turn,
made him ineligible for adjustment of status under § 1255(a). Even if Khaytekov were eligible for
adjustment of status, the judge continued, he would not merit that discretionary relief because the
negative aspects of his case (his lies) outweighed any positive aspects.
Found inadmissible under § 1182(a)(6)(C), Khaytekov applied for a waiver of inadmissi-
bility under § 1182(i)(1). The waiver would allow him to seek adjustment of status despite his lies
if he could prove that his removal would cause his wife Angela “extreme hardship.” Khaytekov
argued she would suffer such hardship because she is disabled and he is her sole caregiver. The
judge denied this waiver request on three grounds. Ground One: The judge found that Khaytekov
had knowingly filed a frivolous asylum application, which rendered him “permanently ineligible”
for benefits like an inadmissibility waiver. Id. § 1158(d)(6). Ground Two: The judge found that
Khaytekov did not prove his eligibility for the waiver because he had not shown that his removal
would cause Angela extreme hardship. To reach this result, the judge questioned whether Angela
was truly disabled because her social-security application for disability benefits had been denied.
Ground Three: The judge found that, even if Khaytekov were eligible for a waiver under
§ 1182(i)(1), his case did not warrant a favorable exercise of discretion. The judge again relied on
Khaytekov’s lies, describing him as “one of the most remarkably and demonstrably dishonest peo-
ple with whom this Court has dealt in well over 30 years of experience on the bench.”
Khaytekov appealed to the Board of Immigration Appeals. During the appeal he filed
several motions, including a motion to remand for the immigration judge to consider new evidence
showing that Angela had procured disability benefits; a motion to have a three-member panel de-
cide his appeal; and a motion for cancellation of removal. The Board dismissed the appeal and
denied the motions. It upheld the finding that Khaytekov had filed a frivolous asylum application,
2
Case No. 19-3149, Khaytekov v. Barr
which barred him from seeking an inadmissibility waiver under § 1182(i)(1). It also held that
Khaytekov would not have been entitled to a waiver in any event. When doing so, the Board
acknowledged Khaytekov’s new evidence about his wife’s disability benefits and so did not rely
on the immigration judge’s lack-of-hardship finding. Rather, the Board concluded that, even ac-
counting for Angela’s disability, Khaytekov did not merit a waiver when balancing the negative
and positive aspects of his case.
In this court, Khaytekov alleges that the Board erred in the following ways: (1) by denying
his motion to remand based on his new evidence; (2) by refusing to impanel a three-member panel;
(3) by denying his motion to remand so that he could apply for cancellation of removal; and (4) by
upholding the findings that he had filed a frivolous asylum application and was not credible.
1. Motion to Remand for New Evidence. Khaytekov moved the Board to remand so that
the immigration judge could reconsider his request for an inadmissibility waiver under § 1182(i)(1)
in light of new evidence (Angela’s approval for disability benefits). We lack jurisdiction over this
argument, but the reason why is quite complex.
Start with the jurisdictional basics. Congress has stripped courts of jurisdiction to consider
many discretionary rulings of the Board of Immigration Appeals. E.g., 8 U.S.C. § 1252(a)(2)(B).
Two provisions bar courts from reviewing a decision denying the relief that Khaytekov seeks: a
waiver of inadmissibility under § 1182(i)(1). Section 1252(a)(2)(B)(i) says that “no court shall
have jurisdiction to review” “any judgment regarding the granting of relief under,” among other
sections, § 1182(i). Section 1182(i)(2) adds: “No court shall have jurisdiction to review a decision
or action of the Attorney General regarding a waiver under paragraph (1).” These carveouts to our
jurisdiction come with their own carveout: Congress clarified that courts retain jurisdiction to re-
view “constitutional claims or questions of law” that the Board answers when deciding issues
3
Case No. 19-3149, Khaytekov v. Barr
covered by a jurisdictional bar. Id. § 1252(a)(2)(D). Under this framework, we would lack juris-
diction if Khaytekov had sought our review of the Board’s discretionary balancing of the positive
and negative aspects of his case or of any decision that he failed to establish hardship. Neither
decision qualifies as a “question of law” under § 1252(a)(2)(D) and so both are subject to the
jurisdictional bar. See, e.g., Ettienne v. Holder, 659 F.3d 513, 517–19 (6th Cir. 2011) (hardship);
Addo v. Mukasey, 267 F. App’x 442, 448–49 (6th Cir. 2008) (balancing); see also Cospito v. Att’y
Gen. of U.S., 539 F.3d 166, 170–71 (3d Cir. 2008).
Yet this petition presents a procedural twist. Khaytekov does not seek review of the denial
of a waiver under § 1182(i)(1); he seeks review of the denial of a motion to remand. Federal courts
have long treated those motions (which are filed before the Board’s decision) like motions to reo-
pen (which are filed after the Board’s decision). Hernandez-Perez v. Whitaker, 911 F.3d 305, 315
n.4 (6th Cir. 2018); Pilica v. Ashcroft, 388 F.3d 941, 945 n.3 (6th Cir. 2004); see 8 C.F.R.
§ 1003.2(c)(4). And a court has jurisdiction to review the Board’s denial of a motion to reopen if
the court would have jurisdiction over the underlying issue that an immigrant seeks to raise in that
motion. Kucana v. Holder, 558 U.S. 233, 252–53 (2010). But what “if the court would lack
jurisdiction over the . . . underlying” issue that an immigrant seeks to press? Id. at 250 n.17. The
Supreme Court has reserved that jurisdictional question. Id.
We have answered the question for other Board actions that, like the denial of a waiver
under § 1182(i), are subject to § 1252(a)(2)(B)(i). Hernandez-Perez, 911 F.3d at 315–16; Pilica,
388 F.3d at 945–48. For example, the denial of adjustment of status under § 1255(a) normally
triggers that jurisdictional bar. And Pilica considered whether we had jurisdiction over the Board’s
denial of a motion to remand to allow an immigrant to apply for adjustment of status. 388 F.3d at
945–46. We started with the statutory text, recognizing that “[t]he question is whether the denial
4
Case No. 19-3149, Khaytekov v. Barr
of the motion to remand was a judgment ‘regarding the granting of relief’ under” the adjustment-
of-status statute. Id. (quoting 8 U.S.C. § 1252(a)(2)(B)(i)). We then held that a motion to remand
“that does not involve the consideration of relief on the merits should not be treated as ‘regarding’
the granting of relief” for purposes of § 1252(a)(2)(B)(i)’s text. Id. at 948. If, by contrast, the
Board denied a motion to remand (or reopen) on merits grounds—because, for example, new evi-
dence still did not show the required hardship for discretionary relief—Pilica suggested that we
would lack jurisdiction. Id. at 947–48 (discussing Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th
Cir. 2001)). Ultimately, Pilica held that we had jurisdiction because the immigrant in that case
sought only an opportunity to apply for adjustment of status and there was no indication that the
Board’s unexplained denial of the motion rested on the merits of the immigrant’s adjustment-of-
status claim. Id. at 945, 948.
Hernandez-Perez clarified how Pilica applies when an immigrant seeks to remand (or re-
open) a previously denied claim based on new evidence. 911 F.3d at 316. There, the Board denied
an application for cancellation of removal under 8 U.S.C. § 1229b because the immigrant had not
shown that his removal would cause extreme hardship to his daughter, a decision also triggering
§ 1252(a)(2)(B)(i)’s jurisdictional bar. Hernandez-Perez, 911 F.3d at 309–10. The immigrant
then filed a motion to reopen with new evidence of hardship to his son, but the Board found that
this new evidence “did not establish prima facie eligibility for cancellation of removal.” Id. at 310.
Despite that quasi-merits ruling, Hernandez-Perez held that we had jurisdiction to consider the
denial. Id. at 315–16. We adopted the rule that courts “lack jurisdiction to review the denial of a
motion to reopen or remand in a cancellation of removal case, unless the motion raised a new
hardship ground not decided in the original decision.” Id. at 316 (quoting Ortiz-Cervantes v.
Holder, 596 F. App’x 429, 432 (6th Cir. 2015)). And the motion in Hernandez-Perez relied on a
5
Case No. 19-3149, Khaytekov v. Barr
new hardship ground (harm to the immigrant’s son) different from the ground asserted in the orig-
inal application (harm to the immigrant’s daughter). Id.
While we found that we had jurisdiction in these two cases, their logic shows that we lack
jurisdiction to review the denial of Khaytekov’s motion to remand. Initially, though, we reserve
one question about whether these cases apply here. To be sure, this case triggers the jurisdictional
bar that Pilica and Hernandez-Perez interpreted (§ 1252(a)(2)(B)(i)) because that provision refers
to inadmissibility waivers under § 1182(i)(1) too. But this case also triggers another jurisdictional
bar (§ 1182(i)(2)) that uses different language. Pilica reasoned that § 1252(a)(2)(B)(i) did not
preclude review of non-merits denials of motions to reopen or remand because its text refers to the
merits by prohibiting our review of “any judgment regarding the granting of relief” under the iden-
tified sections. 8 U.S.C. § 1252(a)(2)(B)(i) (emphasis added); Pilica, 388 F.3d at 948. Section
1182(i)(2), by contrast, precludes review over “a decision or action of the Attorney General re-
garding a waiver under” § 1182(i)(1). 8 U.S.C. § 1182(i)(2) (emphasis added).
We need not decide whether this difference in language compels a different test because
we lack jurisdiction even under Pilica and Hernandez-Perez. To begin with, the Board’s decision
“involve[d] the consideration of relief on the merits” of Khaytekov’s waiver claim. Pilica, 388
F.3d at 948. Khaytekov’s motion to remand sought to use new evidence about Angela’s disability
to overturn the immigration judge’s decision that he had not shown the “extreme hardship” that
§ 1182(i)(1) requires. The Board acknowledged this new evidence in a footnote, but denied relief
because Khaytekov was still not entitled to a waiver under the Board’s discretionary balancing of
positive and negative factors. We lack jurisdiction over such a merits-based discretionary balanc-
ing—whether undertaken for the initial appeal or for a motion to remand. See Addo, 267 F. App’x
at 448–49. The opposite rule would allow immigrants to “make an end-run around the bar to
6
Case No. 19-3149, Khaytekov v. Barr
review” of the Board’s discretionary denials simply by saving some new evidence for a motion to
reopen or remand. Ortiz-Cervantes, 596 F. App’x at 433 (citation omitted).
Nor does Hernandez-Perez help Khaytekov. Both cancellation of removal (in Hernandez-
Perez) and a waiver of inadmissibility (in this case) are discretionary forms of relief that require
an immigrant to show that removal will cause extreme hardship to a family member. Compare
8 U.S.C. § 1229b(b)(1)(D), with id. § 1182(i). But, unlike the immigrant in Hernandez-Perez,
Khaytekov moved the Board to remand on the same hardship ground (his wife’s disability) that he
asserted in his original application. His motion does not address a ground “so distinct from that
considered previously as to make the motion . . . a request for new relief, rather than for reconsid-
eration of a prior denial.” Hernandez-Perez, 911 F.3d at 316 (citation omitted).
In sum, whether analyzed under § 1182(i)(2) or under § 1252(a)(2)(B)(i), we lack jurisdic-
tion to review the denial of Khaytekov’s motion to remand.
2. Motion for Three-Member Panel. Khaytekov next claims that the Board wrongly refused
to appoint a three-member panel to decide his appeal. We have jurisdiction to review the Board’s
decision to decide an appeal with one member rather than a three-member panel. Gafurova v.
Whitaker, 911 F.3d 321, 330–31 (6th Cir. 2018). But Gafurova forecloses Khaytekov’s claim.
Under regulations governing Board procedure, cases “may only be assigned for review by a three-
member panel” in certain settings. 8 C.F.R. § 1003.1(e)(6). These regulations, by contrast, place
no limits on a single member deciding an appeal. This dichotomy led Gafurova to hold that a
“single-member assignment may be made for any stated reason” or “for no stated reason at all.”
911 F.3d at 331. We thus found that the Board did not abuse its discretion when it denied a request
for a three-member panel without explanation. Id. So too here. As in Gafurova, the Board sum-
marily denied a request for a three-member panel. “Despite the lack of any explanation . . . the
7
Case No. 19-3149, Khaytekov v. Barr
Board did not abuse its discretion because its assignment of a single member was consistent with
the requirements of its internal operating rules.” Id.
3. Motion to Remand to Apply for Cancellation of Removal. Khaytekov also challenges
the Board’s denial of his motion to remand to allow him to apply for cancellation of removal under
8 U.S.C. § 1229b(b). While a denial of cancellation of removal falls within § 1252(a)(2)(B)(i)’s
jurisdictional bar, Pilica suggests that we would have jurisdiction over the denial of a motion to
remand that seeks to raise a previously unavailable claim for relief. 388 F.3d at 945–48. Regard-
less, Khaytekov raises a pure question of law, so we have jurisdiction to review his claim under
8 U.S.C. § 1252(a)(2)(D).
At the outset, Khaytekov correctly notes that the Board mistakenly suggested that he did
not, in fact, seek cancellation of removal. “But even when the agency’s reasoning was inadequate,
its decision may be upheld on the basis of harmless error if the petitioner’s prospects are otherwise
so weak that there is no ‘reason to believe that . . . remand might lead to a different result.’”
Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010) (citation omitted). In this case, we have
already rejected the precise legal argument that Khaytekov raises to assert that he is eligible for
cancellation of removal. So a remand on this issue would serve no purpose.
To be eligible for cancellation of removal, an immigrant must be “physically present in the
United States for a continuous period of not less than 10 years immediately preceding the date of”
the application for relief. 8 U.S.C. § 1229b(b)(1)(A). Under what is known as the “stop-time”
rule, an immigrant must have satisfied this 10-year requirement by the time the government serves
the immigrant with a valid “notice to appear.” Id. § 1229b(d)(1). A different section states that a
“notice to appear” should include “[t]he time and place at which [removal] proceedings will be
held.” Id. § 1229(a)(1)(G)(i). Pereira v. Sessions, 138 S. Ct. 2105 (2018), held that a notice to
8
Case No. 19-3149, Khaytekov v. Barr
appear that does not include this information does not suffice to trigger the “stop-time” rule. Id.
at 2110. The initial notice sent to Khaytekov had the same defect identified in Pereira. But before
Khaytekov had been in the United States for 10 years, the government sent a second notice telling
him of the time and place of his removal proceedings. He thus would be ineligible for cancellation
of removal if the combination of the two notices triggered the stop-time rule. Khaytekov responds
that, under the statutory scheme, the government cannot trigger the stop-time rule in this “multi-
notice” fashion.
Unfortunately for Khaytekov, we rejected this argument after he filed his opening brief.
Garcia-Romo v. Barr, 940 F.3d 192, 199–203 (6th Cir. 2019). Garcia-Romo held that the govern-
ment can trigger the stop-time rule by sending a follow-up communication with information miss-
ing from an original notice. Id. Khaytekov’s reply brief candidly admits that Garcia-Romo fore-
closes his argument before this panel. Because he was not present in this country for 10 years at
the time of the second notice, he is not eligible to seek cancellation of removal.
4. Frivolousness and Credibility Findings. Khaytekov lastly challenges the Board’s find-
ings that he filed a frivolous asylum application and was not credible. Even if we had jurisdiction
under 8 U.S.C. § 1252(a)(2)(D) to consider his arguments, we need not address them. As noted,
we lack jurisdiction to review the Board’s denial of Khaytekov’s request for a waiver of inadmis-
sibility based on its discretionary balancing of the negative and positive aspects of his case. Addo,
267 F. App’x at 448–49. That balancing would doom Khaytekov’s requests for relief even if we
reversed the Board’s separate findings that he filed a frivolous asylum application and was not
credible. Any reversal of those findings thus would not change the outcome of Khaytekov’s ap-
plications for adjustment of status and a waiver of inadmissibility. So we need not reach these
issues because they are “not necessary for our disposition of the petition.” Dealmonte-Castillo v.
9
Case No. 19-3149, Khaytekov v. Barr
Sessions, 737 F. App’x 282, 285 (6th Cir. 2018); see also Dinou v. U.S. Att’y Gen., 451 F. App’x
840, 842 n.3 (11th Cir. 2012); Ozdemir v. INS, 46 F.3d 6, 8 (5th Cir. 1994).
All told, we dismiss Khaytekov’s petition in part and deny it in part.
10