Belkis Corea Escoto v. Merrick B. Garland

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0310n.06

Nos. 19-3537/20-3252

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
BELKIS WALESKA COREA ESCOTO; HECTOR ) Jul 02, 2021
)
ADONYS MUNOZ COREA, DEBORAH S. HUNT, Clerk
)
)
Petitioners,
) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
v.
) BOARD OF IMMIGRATION
) APPEALS
MERRICK B. GARLAND, Attorney General,
)
)
Respondent.
)

Before: STRANCH, BUSH, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge. The Department of Homeland Security (DHS) initiated removal

proceedings against Belkis Waleska Corea Escoto and her son.1 Corea then applied for asylum on

behalf of herself and her son, and withholding of removal and protection under the Convention

Against Torture (CAT) for herself. The immigration judge (IJ) and the Board of Immigration

Appeals (BIA) denied relief and ordered Corea and her son removed to Honduras. Corea also

sought administrative closure of her proceedings, or at least a continuance of them, until her

pending application for a U visa was resolved. The IJ and BIA denied her requests. Corea timely

petitioned for review (Docket No. 19-3537). While her petition was pending in this court, Corea

sought reconsideration of the BIA’s decision. The BIA denied her motion for reconsideration, and

1
Petitioner refers to herself as “Corea” in her briefing, so we do the same. While Corea’s youngest
son is also a party to this proceeding, we do not address his case separately because his case is
derivative of Corea’s.
Nos. 19-3537/20-3252, Corea Escoto v. Garland

she petitioned for review (Docket No. 20-3252). We consolidated the petitions. For the reasons

stated, we GRANT in part and DENY in part Corea’s petition in Docket No. 19-3537 and

DISMISS in part and DENY in part Corea’s petition in Docket No. 20-3252. We REMAND to

the BIA for further proceedings.

I.

Corea is a native and citizen of Honduras. She has three minor children who are also

Honduran natives and citizens. We refer to the children as L., A., and H. Corea also has a son

born in the United States after the conclusion of her removal proceedings before the IJ; this son is

a United States citizen.

In early 2016, Corea fled Honduras with her youngest Honduran-born son, H., and entered

the United States without authorization. DHS later initiated removal proceedings against Corea

and H., filing Notices to Appear that alleged that Corea and H. were removable under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) as aliens who, “at the time of application for admission, [were] not in

possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid

entry document required by the [Immigration and Nationality] Act.”

Before the IJ, Corea conceded removability but sought asylum, withholding of removal,

and protection under the CAT. Her application alleged that, while in Honduras, she had been

threatened and extorted by a man named El Pollo, who approached her while she was selling candy

by her house; claiming that he was “the one who collects the rent,” El Pollo demanded 5,000

lempiras per month. Because of this threat, Corea quit her business selling candy and fled to the

United States with H. She said that she was scared to go back because “[i]f they find me, they

would kill me because they are mad I escaped them. They would be mad because I left instead of

paying; or they would kill me because I can’t pay.” She also alleged:

-2-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

On December 22, 2008, when I was about 6 months pregnant with my middle child,
[A.], his father was murdered by members of MS[-13]. He was a taxi driver, which
was a really dangerous job during this time because of gang problems. . . . After
my partner was murdered, his cousin’s friend said that the men who killed him were
looking for me because I was “his woman” and I was pregnant with his child.

Finally, Corea alleged that her stepfather, “who was a member of the national police force in

Honduras, was assassinated by MS[-13] in 2006,” about six months after he had been released

from jail, “where he had been for two years because of an assault he was alleged to have committed

with a group of other people.” Corea asserted, “I know that the men who were involved with my

step-father’s death are the same ones who work with El Pollo because I recognize them from back

then. They know who I am, and they know about my step-father.”

Before Corea had a hearing on her applications, she moved to administratively close the

removal proceedings while she applied for a “U visa,” pursuant to 8 U.S.C. § 1101(a)(15)(U).

U visas are “set aside for victims of certain crimes who have suffered mental or physical abuse

and are helpful to law enforcement or government officials in the investigation or prosecution of

criminal activity.” Victims of Criminal Activity: U Nonimmigrant Status, U.S. Citizenship and

Immigration Services, https://www.uscis.gov/humanitarian/victims-of-human-trafficking-and-

other-crimes/victims-of-criminal-activity-u-nonimmigrant-status (last visited June 30, 2021).

Corea sought U visa status for herself and her children based on alleged abuse suffered at the hands

of H.’s father, Hector Munoz. Corea had been living in the Memphis, Tennessee area with Munoz,

who had become physically abusive and controlling. Corea told the Memphis police that Munoz

had “pulled her to the ground by her hair and threatened to take her son.” After this incident, Corea

moved out of the home with her children and obtained a protective order against Munoz. Corea

said that the Memphis police “certified [her] as a victim of domestic violence who cooperated in

the investigation.” Corea asserted that administrative closure of her removal proceedings was

-3-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

appropriate because if she obtained lawful status through a U visa, she could request termination

of the removal proceedings.

The Attorney General opposed administrative closure, arguing that Corea would not be

prejudiced by moving forward with the removal proceedings because she could “seek U Visa status

before [the U.S. Citizenship and Immigration Services (USCIS)] even if she is subject to a final

order of removal, or if she is outside of the United States.” And, according to the Attorney General,

“In the event a removal order is entered against [Corea], she may request a stay of removal with

USCIS . . . , and if her U visa application is granted, she will attain lawful status that will allow

her to remain in the United States.” Corea did not dispute either point. The case was then assigned

to a new IJ, who denied Corea’s motion for administrative closure, stating that she “agree[d] with

the reasons stated in the opposition to the motion.”

The new IJ then held a hearing on the merits of Corea’s applications. Corea was the only

witness. She elaborated on the allegations in her applications. At the end of the hearing, Corea

renewed her motion for administrative closure, and the Attorney General again opposed the

motion. The IJ reserved her decision.

The IJ denied Corea’s applications for relief. With respect to the claims for asylum and

withholding of removal, the IJ concluded that Corea could not establish a well-founded fear of

future persecution. The IJ determined that Corea could not show that the government was unable

or unwilling to assist her. She also concluded that Corea’s claims of fear were not objectively

reasonable and that she had failed to establish a nexus between the alleged future persecution and

a protected ground. The IJ also determined that Corea was not eligible for CAT protection because

she made no claim that the police or a government official would be involved in any harm that

-4-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

might come to her. As a result, the IJ denied Corea’s requests for relief and ordered her removed

to Honduras. The IJ did not address Corea’s renewed motion for administrative closure.

Corea appealed to the BIA, which affirmed the IJ’s decisions in all respects. The BIA also

addressed Corea’s argument that the proceedings should have been continued or administratively

closed. The BIA acknowledged Matter of Castro-Tum, 27 I. & N. Dec. 271, 272 (A.G. 2018),

which was issued after the IJ’s decision in this case. Castro-Tum held that “Immigration Judges

and the Board may only administratively close a case where a previous regulation or a previously

judicially approved settlement expressly authorizes such an action.” Because Corea’s case did not

fall within either category, the BIA determined that Corea’s case could not be administratively

closed. The BIA also determined that Corea had not shown “good cause” for a continuance

because she had “not established prima facie eligibility for a U-visa, a pending application for a

collateral matter not within the Immigration Judge’s jurisdiction, or established that the collateral

matter would materially affect the outcome of the removal proceedings.” As a result, the BIA

dismissed Corea’s appeal and denied her motion for remand. Corea timely petitioned for review

of the BIA’s decision (Docket No. 19-3537).

While her petition was pending in this court, Corea filed a motion for reconsideration with

the BIA, challenging the BIA’s conclusions regarding her requests for a continuance and

administrative closure. The BIA denied reconsideration. Corea petitioned for review of that

decision (Docket No. 20-3252), and we consolidated the petition with the one she had previously

filed. We resolve both matters now.

II. Docket No. 19-3537

“Where, as here, the BIA issued a separate opinion, rather than summarily affirming the

IJ’s decision, we review the BIA’s decision as the final agency determination.” Umaña-Ramos v.

-5-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

Holder, 724 F.3d 667, 670 (6th Cir. 2013) (quoting Hachem v. Holder, 656 F.3d 430, 437 (6th Cir.

2011)). But to the extent the BIA adopted the IJ’s reasoning, we also review the IJ’s decision. Id.

We review questions of law de novo but give “substantial deference . . . to the BIA’s interpretation

of the INA and accompanying regulations.” Id. (alteration in original) (quoting Khlalili v. Holder,

557 F.3d 429, 435 (6th Cir. 2009)). We review factual findings under the highly deferential

substantial evidence standard. Id. The BIA’s factual findings “are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” Id. (quoting 8 U.S.C.

§ 1252(b)(4)(B)).

A.

Asylum and withholding of removal claims face similar requirements. For asylum, an alien

must show that she is a refugee. 8 U.S.C. § 1158(b)(1)(B)(i). A refugee is someone “who is unable

or unwilling to return to . . . [her] country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social group, or

political opinion[.]” 8 U.S.C. § 1101(a)(42)(A); Kante v. Holder, 634 F.3d 321, 325 (6th Cir.

2011). Similarly, for withholding of removal, an alien must show that her “life or freedom would

be threatened in that country because of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.”2 8 U.S.C. § 1231(b)(3)(A).

Corea asserts a well-founded fear of future persecution, which she can demonstrate “by

showing that she has a genuine fear and that a reasonable person in her circumstances would fear

persecution on account of a statutorily protected ground if she returned to her native country.”

2
A quick word on Corea’s withholding of removal claim. The BIA concluded that because Corea
could not establish eligibility for asylum, she also could not establish eligibility for withholding of
removal. On appeal, Corea does not treat her withholding of removal claim any differently than
her asylum claim. So for the purposes of this appeal, we consider them together.

-6-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

Kante, 634 F.3d at 325. To succeed on this claim, Corea must show a “clear probability” that she

will be persecuted on return to Honduras because of her “membership in a particular social group.”

Zaldana Menijar v. Lynch, 812 F.3d 491, 498 (6th Cir. 2015) (quoting 8 U.S.C. § 1231(b)(3)(A)).

“A ‘particular social group’ must meet three criteria: (1) immutability (members must share an

immutable characteristic), (2) particularity (the group has discrete and definite boundaries), and

(3) social distinction (society actually perceives the purported group as a distinct class of

persons).” Cruz-Guzman v. Barr, 920 F.3d 1033, 1036 (6th Cir. 2019). In addition, “a social

group may not be circularly defined by the fact that it suffers persecution. In other words, the

individuals in the group must share a narrowing characteristic other than their risk of being

persecuted.” Kante, 634 F.3d at 327.

Corea proposes three different social groups. She first argues that she demonstrated a

well‑founded fear of future persecution based on her membership in the social group of “Honduran

women unable to leave their relationship[s].” [Petitioner Br. at 17.] This group bears obvious

resemblance to a group the BIA had considered cognizable in Matter of A-R-C-G-, 26 I. & N. Dec.

388, 392 (B.I.A. 2014)—“married women in Guatemala who are unable to leave their

relationship[s].” But while Corea’s appeal was pending before the BIA, the Attorney General

overruled A-R-C-G-. See Matter of A-B-, 27 I. & N. Dec. 316, 317 (A.G. 2018). In Corea’s appeal,

the BIA applied the factors discussed in A-B- and concluded that Matter of A-B- “foreclose[d]”

Corea’s proposed social group.

With a new administration comes a new Attorney General and sometimes differing views.

On June 21, 2021, the Attorney General vacated Matter of A-B- and instructed “immigration judges

and the Board [to] follow pre-A-B-[] precedent, including Matter of A-R-C-G-.” See Matter of A-

B-, 28 I. & N. Dec. 307, 309 (A.G. 2021). Consequently, the BIA’s reasoning as to Corea’s asylum

-7-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

claim premised on her membership in the social group of Honduran women unable to leave their

relationships has been undercut.

A-B- similarly affected other portions of the BIA’s analysis of Corea’s asylum claim. For

example, Corea also argued that she demonstrated a well-founded fear of future persecution based

on her membership in two familial social groups: family members of Emilio Sanchez Fonseca,

her stepfather, and family members of Carlos Hernandez, the father of her middle child, A. Here,

the BIA relied on A-B-, at least in part, to determine that Corea’s claim failed because she could

not establish that her membership in the familial groups “was or would be at least one central

reason for any harm from the gangs, or any other group or individuals in Honduras.” And later,

the BIA relied on A-B- as support for its determination that Corea had failed to meet “her burden

to establish that she was, or would [be], persecuted by individuals whom the Honduran government

is unable or unwilling to control.”

Given the BIA’s repeated reliance on A-B-, briefing on the effect of A-B-’s overruling is

necessary. We remand to the BIA to reconsider Corea’s asylum claim in the first instance, this

time under pre-A-B- caselaw. See A-B-, 28 I. & N. Dec. at 309.

One last matter relating to Corea’s asylum claim. On appeal, Corea argues that she is

eligible for asylum as a member of the social group of Honduran women viewed as property by

the fathers of their children. She acknowledges that she did not present this social group to the IJ

or the BIA but argues that, given the ever-changing landscape of immigration law, we should

remand the case so that she might assert this new group before the agency. We entrust whether to

consider this newly proffered social group to the BIA.

-8-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

B.

Corea next challenges the denial of her request for a continuance. Before we address her

argument, some procedural background helps. Corea never asked the IJ for a continuance so that

she might pursue a U visa. Instead, she sought administrative closure, which the IJ denied. In her

brief before the BIA, Corea appeared to recognize that the Attorney General’s opinion in Matter

of Castro-Tum foreclosed her request for administrative closure. So she turned her attention to a

continuance, asking for one from the BIA, or for the BIA to remand to the IJ to grant a continuance.

The BIA denied both requests, concluding that Corea had “not shown ‘good cause’ for a

continuance as she has not established prima facie eligibility for a U visa, a pending application

for a collateral matter not within the Immigration Judge’s jurisdiction, or established that the

collateral matter would materially affect the outcome of the removal proceedings.” The BIA

continued, “[U]nder the circumstances presented here, because the respondent has not provided

persuasive evidence that she is likely to prevail on the pending [U visa petition] or that a delay to

allow for the adjudication of the petition is likely to alter the outcome in these proceedings, she

has not established that a remand is warranted in this case and her request is denied.”

We review the BIA’s decision for an abuse of discretion. See Abu-Khaliel v. Gonzales,

436 F.3d 627, 634 (6th Cir. 2006) (denial of continuance); Fang Huang v. Mukasey, 523 F.3d 640,

655 (6th Cir. 2008) (denial of a motion to remand). “In determining whether the Board abused its

discretion, this Court must decide whether the denial was made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible basis such as

invidious discrimination.” Abu-Khaliel, 436 F.3d at 634 (alterations adopted) (quoting Balani v.

I.N.S., 669 F.2d 1157, 1161 (6th Cir. 1982)).

-9-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

“Respondents often request continuances because they are pursuing collateral relief in

other forums that may affect the outcome of their removal proceedings.” Matter of L-A-B-R-, 27

I. & N. Dec. 405, 405 (A.G. 2018). Immigration judges may grant a continuance “for good cause

shown.” Id. (quoting 8 C.F.R. § 1003.29). “[A]s the party seeking the continuance, the alien bears

the burden of establishing good cause.” Id. at 413.

As Corea notes, “[a]ny determination on whether good cause exists for a continuance

‘should turn primarily on the likelihood that the collateral relief will be granted and materially

affect the outcome of the removal proceedings.’” Petitioner Br. at 28 (quoting L-A-B-R-, 27 I.

& N. Dec. at 412). So Corea must show a likelihood of success on her U visa petition. To establish

prima facie eligibility for a U visa, Corea must make three showings, the first being that she

“‘suffered substantial physical or mental abuse’ as a victim of qualifying criminal activity, as

opposed to only minor or incidental harm.” Matter of Sanchez Sosa, 25 I. & N. Dec. 807, 813

(B.I.A. 2012) (quoting 8 U.S.C. § 1101(a)(15)(U)(i)(I)). “Factors to be considered include the

nature of the injury inflicted, the duration of the harm, and the severity of the perpetrator’s

conduct.” Id. “Documentary evidence, such as medical reports or psychological evaluations that

would be submitted to the DHS to support the petition, should be submitted to establish the extent

of any injury.” Id. If Corea cannot establish this initial step, the inquiry is over. Id.

Corea first alleged that she had established prima facie eligibility for a U visa in her motion

for administrative closure. But she did not explain how the harm she suffered amounted to the

requisite “substantial mental or physical abuse.” Nor did she offer any such argument to the BIA.

In fact, her brief before the BIA is silent on her prima facie eligibility for a U visa, other than a

conclusory assertion that she filed a “prima facie approvable application.” Her opening brief to

this court on appeal is similarly silent on how her injuries amount to “substantial mental or physical

-10-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

abuse.” Although Corea’s reply brief on appeal argues that she has met the required legal standard,

we cannot conclude that the BIA abused its discretion by rejecting an argument never presented to

it. Cf. Young Hee Kwak v. Holder, 607 F.3d 1140, 1144 (6th Cir. 2010) (recognizing that the

agency did not abuse its discretion by denying a continuance when the petitioner had failed to

“provide any evidence that suggested a likelihood of success” and therefore the agency “had little

reason to believe” that the petitioner would obtain a favorable outcome on the pending petition)

(quoting Cika v. Holder, 344 F. App’x 208, 217 (6th Cir. 2009)).

Even if Corea had established the first step of prima facie eligibility for a U visa, she has

not established the third.3 For the third step, if the alien is inadmissible (like Corea), she must seek

a waiver of inadmissibility from the USCIS. Sanchez Sosa, 25 I. & N. Dec. at 814. And an IJ

“should assess the likelihood that the USCIS will exercise its discretion favorably under the

regulatory standard as part of the determination of the prima facie eligibility.” Id. “[T]he USCIS

will only grant the waiver ‘in extraordinary circumstances.’” Id. (quoting 8 C.F.R. § 212.17(b)(2)).

Corea made no mention of a waiver of inadmissibility when discussing her prima facie

eligibility in her motion for administrative closure. She also made no mention of one before the

BIA. On appeal, she says that “[h]ad DHS, the IJ, or the BIA believed that Ms. Corea would be

ineligible for a waiver of inadmissibility, evidence of eligibility and proof of the pending waiver

application could have been provided to the IJ.” But it was Corea’s burden to supply the necessary

information to the IJ. See Sanchez Sosa, 25 I. & N. Dec. at 814 (recognizing that “an alien

generally should provide the Immigration Judge with copies of [the USCIS] submissions and

3
Corea has met the second step, which asks whether “the alien has relevant information and has
been, is being, or will be helpful to authorities investigating it or prosecuting it.” Sanchez Sosa,
25 I. & N. Dec. at 813. “This requirement may be shown if the alien has obtained [a law
enforcement] certification.” Id. Corea submitted a law enforcement certification to the IJ.
-11-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

relevant supporting documents, including a waiver of inadmissibility on Form I-192, if

applicable”). She failed to meet that burden. Corea therefore has not established that the BIA

abused its discretion by denying her request for a continuance or for a remand to the IJ for further

consideration of a continuance.4

C.

Corea also challenges the denial of her motion for administrative closure. Again, we

review for an abuse of discretion. See Matias-Cifuentes v. Whitaker, 755 F. App’x 539, 542 (6th

Cir. 2018).

“Administrative closure is a device ‘created for the convenience of the Immigration and

Courts and the Board.’” Hernandez-Serrano v. Barr, 981 F.3d 459, 462 (6th Cir. 2020) (quoting

Matter of Avetisyan, 25 I. & N. Dec. 688, 690 (B.I.A. 2012)). Administrative closure “remove[s]

a case from an Immigration Judge’s active calendar or from the Board’s docket.” Avetisyan, 25 I.

& N. Dec. at 692. In the past, cases that were administratively closed rarely were re-calendared,

meaning that the proceedings were essentially closed without a final disposition. Hernandez-

4
Recently, in Asista Immigration Assistance, Inc., v. Johnson, No. 3:20-cV-00206-JAM, the
United States District Court for the District of Connecticut approved a motion to hold the case in
abeyance to allow ICE to “continue[] to actively review[] its policies of processing of applications
for administrative stays of final orders of removal for individuals with pending U-nonimmigrant
status petitions.” Respondent Letter Brief, Appellate R. 90, Exhibit A. As part of the order, ICE
agreed (with exceptions not relevant here) to do the following for ninety days (ending June 15,
2021): “1) Hold on denying new or pending stay requests for individuals with pending
U‑nonimmigrant status petitions; 2) Hold on removing any person who has a pending
U‑nonimmigrant status petition; and 3) Not oppose continuing removal proceedings for any person
with a pending U-nonimmigrant status petition.” Id. The government admits that ICE’s temporary
policy applies nationwide but nonetheless argues that it does not affect Corea, aside from the
second prong. Corea, for her part, says that the order represents a sea change in ICE policy and
that we should remand to the IJ for reconsideration of her request for a continuance. We agree
with the government that the order gives us no basis to vacate the removal order against Corea and
that the only effect the order will have on Corea currently is that ICE could not have removed her
before June 15, 2021—a date that has already passed.
-12-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

Serrano, 981 F.3d at 463. In Castro-Tum, however, the Attorney General analyzed two regulations

that purported to be the source of authority for such closures, 8 C.F.R. §§ 1003.10 and 1003.1(d),

and concluded that neither provided “general authority to suspend indefinitely immigration

proceedings by administrative closure.” 27 I. & N. Dec. at 271, 282–84. Instead, “[i]mmigration

judges and the [BIA] may only administratively close a case where a previous regulation or

previous judicially approved settlement expressly authorizes such an action.” Id. at 271.

Corea asks this court to reject Castro-Tum’s reasoning and return administrative closure

law to its prior status. That we cannot do. This court recently concluded that Castro-Tum was

right about administrative closure. See Hernandez-Serrano, 981 F.3d at 466 (“[W]e agree with

the Attorney General that §§ 1003.10 and 1003.1(d) do not delegate to IJs or the Board ‘the general

authority to suspend indefinitely immigration proceedings by administrative closure.’” (quoting

Castro-Tum, 27 I. & N. Dec. at 272)). Castro-Tum, therefore, is good law, and Corea’s arguments

to the contrary fail. Because Corea does not contend that she fits within any of the limited

exceptions set forth in Castro-Tum, the BIA did not err by concluding that Castro-Tum barred

administrative closure in this case.5

5
In Hernandez-Serrano, the court did not foreclose the argument that administrative closure might
be available when “the mere fact that removal proceedings remain pending before an IJ or the
Board would legally bar an alien from obtaining a favorable adjustment of status to which he would
be potentially entitled in proceedings before another agency.” 981 F.3d at 466–67. Recently, a
panel of this court addressed that question and held that IJs and the BIA retain the authority to
grant administrative closure in such circumstances, specifically where a noncitizen seeks to apply
for an unlawful presence waiver under 8 C.F.R. § 212.7. See Garcia-DeLeon v. Garland, -- F.3d
--, 2021 WL 2310055, at *4–6 (6th Cir. June 4, 2021). Corea never raised this argument, nor does
she assert that her removal proceedings hinder her ability to obtain a U visa. In fact, she has never
contested the Attorney General’s position that she still could obtain a U visa even if she were
removed from the country.
-13-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

III. Docket No. 20-3252

Corea’s motion for reconsideration focuses on the BIA’s decisions regarding a continuance

and administrative closure. For many of the reasons stated above, Corea’s arguments regarding

her motion for reconsideration fail. We must still resolve a few additional issues, however. We

do so under an abuse of discretion standard. See Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.

2005). Because the BIA has broad discretion to grant or deny a motion for reconsideration, “a

party seeking reconsideration bears a ‘heavy burden.’” Cisse v. Gonzales, 255 F. App’x 971, 975

(6th Cir. 2007) (quoting I.N.S. v. Doherty, 502 U.S. 314, 323 (1992)).

Corea argues that the BIA erred by declining to exercise its authority to reconsider its prior

order sua sponte and remand her case to the IJ. We lack jurisdiction to entertain this argument.

See Barry v. Mukasey, 524 F.3d 721, 724 (6th Cir. 2008); Dable v. Barr, 794 F. App’x 490, 494

(6th Cir. 2019).

Corea also argues that the BIA’s original decision contained a material error regarding her

request for a continuance. Specifically, she points out that in its original decision, the BIA said

that it agreed with the IJ that Corea had failed to establish prima facie eligibility for a U visa, when,

in fact, the IJ had made no such determination. She says that the BIA brushed away this material

error when denying her motion.

Corea is right that the IJ never considered her prima facie eligibility for a U visa. The BIA

acknowledged the error in its order denying reconsideration. But that error makes no difference

for two reasons. Despite the BIA’s erroneous statement in its original order, the BIA reached its

own conclusion that “under the circumstances presented here, . . . [Corea] has not provided

persuasive evidence that she is likely to prevail on the pending [U visa petition].” The BIA thus

-14-
Nos. 19-3537/20-3252, Corea Escoto v. Garland

made its own determination and did not rest entirely on a non-existent IJ decision.6 Moreover, as

discussed above, Corea has failed to establish prima facie eligibility for a U visa. As a result,

Corea has failed to meet her heavy burden to show that the BIA abused its discretion by denying

her motion for reconsideration. See Cisse, 255 F. App’x at 975.

***

We GRANT in part and DENY in part Corea’s petition in Docket No. 19-3537 and

DISMISS in part and DENY in part Corea’s petition in Docket No. 20-3252. We REMAND to

the BIA for further proceedings.

6
To the extent Corea argues that the IJ or BIA failed to make any specific factual findings
regarding her prima facie eligibility for a U visa, we again note that Corea failed to make any
specific arguments regarding the requirements for a prima facie showing of U visa eligibility
before either body.
-15-