Sixth Circuit: (1) No Review of the Ultimate Discretionary Denial of LPR Cancellation, (2) Strict Lozada Proof of Actual Filing/Notice, and (3) BIA Discretion to Reject Unsupported DHS Reopen-and-Dismiss Motions

I. Introduction

In Sam Morris v. Todd W. Blanche, Acting U.S. Attorney General (6th Cir. June 25, 2026), the Sixth Circuit addressed three recurring fault lines in immigration appellate practice: (1) the boundary between unreviewable discretionary determinations and reviewable “questions of law” in cancellation of removal cases; (2) the rigor of the Matter of Lozada procedural framework for ineffective assistance claims in motions to reopen; and (3) the extent of the Board of Immigration Appeals’ authority to deny even an unopposed government request to reopen and dismiss removal proceedings.

Background. Sam Morris, a lawful permanent resident admitted as a refugee and adjusted in 2016, was convicted under Michigan law twice for possessing a loaded firearm in a vehicle and later for embezzlement. DHS initiated removal proceedings charging deportability under 8 U.S.C. § 1227(a)(2)(C) (firearms offense). At the hearing, Morris’s counsel conceded removability and sought cancellation of removal under 8 U.S.C. § 1229b(a). The IJ denied cancellation on discretionary grounds, the BIA affirmed, and Morris petitioned for review. Shortly thereafter, Morris moved to reconsider and reopen, alleging ineffective assistance and arguing that the Michigan statute was not categorically a removable firearms offense. DHS also moved to reopen and dismiss without prejudice, asserting vaguely that “circumstances” had changed. The BIA denied both motions.

Key issues. The Sixth Circuit considered: (a) whether Morris’s removability challenge was exhausted; (b) whether challenges to the IJ’s discretionary denial of cancellation were jurisdictionally barred; (c) whether Morris satisfied Lozada’s procedural prerequisites; and (d) whether the BIA abused its discretion by denying DHS’s unsupported motion to reopen and dismiss.

II. Summary of the Opinion

  • First petition (direct review of BIA affirmance of IJ). The court dismissed the petition: Morris’s removability argument was unexhausted, and his challenges to the discretionary denial of cancellation were jurisdictionally barred by 8 U.S.C. § 1252(a)(2)(B).
  • Second petition (review of denial of motions to reconsider/reopen; and denial of DHS reopen/dismiss). The court denied the petition: Morris forfeited his ineffective-assistance claim by failing to provide adequate proof of actual notice and disciplinary filing under Matter of Lozada; and the BIA did not abuse its discretion in denying DHS’s motion to reopen and dismiss when DHS failed to identify new facts or changed circumstances.

III. Analysis

A. Precedents Cited and Their Role

1. Exhaustion as claim-specific and mandatory when invoked

  • Santos-Zacaria v. Garland, 598 U.S. 411 (2023): The court relied on Santos-Zacaria to clarify that 8 U.S.C. § 1252(d)(1) exhaustion is not jurisdictional but is a mandatory claim-processing rule that must be enforced when raised. The opinion also used Santos-Zacaria’s claim-specific framing of exhaustion (exhaustion “with respect to a specific challenge”) to reject Morris’s attempt to bootstrap later arguments into his first petition.
  • Cuevas-Nuno v. Barr, 969 F.3d 331 (6th Cir. 2020), abrogated on other grounds, Santos-Zacaria v. Garland, 598 U.S. at 416: The Sixth Circuit’s “precision” requirement—each claim must be presented to the BIA—supplied the controlling local rule that doomed Morris’s unraised removability argument.
  • Mazariegos-Rodas v. Garland, 122 F.4th 655 (6th Cir. 2024): Cited for the proposition that exhaustion, though nonjurisdictional, is mandatory once invoked.
  • Gamas-Vicente v. Blanche, 172 F.4th 484 (6th Cir. 2026): Reinforced the Sixth Circuit’s insistence on issue preservation before the BIA.

2. Jurisdiction over “questions of law” despite criminal-alien bars

  • Tantchev v. Garland, 46 F.4th 431 (6th Cir. 2022): The court analogized Tantchev to explain that whether a conviction renders a petitioner removable under a covered deportability provision is a “purely legal question,” placing it within the “questions of law” savings clause of 8 U.S.C. § 1252(a)(2)(D). This undercut Morris’s argument that the court had to decide removability solely to establish jurisdiction under § 1252(a)(2)(C).
  • Mohammed v. Bondi, 129 F.4th 988 (6th Cir. 2025): Cited alongside Tantchev for the proposition that removability based on a conviction is a legal question within § 1252(a)(2)(D).
  • Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020) and Wilkinson v. Garland, 601 U.S. 209 (2024): These Supreme Court cases supported the court’s statement that “mixed questions” (application of law to facts) can qualify as reviewable “questions of law” under § 1252(a)(2)(D) in the relevant jurisdictional context.
  • United States v. Ruiz, 536 U.S. 622 (2002): Morris invoked Ruiz’s principle that courts can assess their own jurisdiction, but the Sixth Circuit explained that this does not override statutory exhaustion requirements.

3. The cancellation-of-removal line: eligibility vs the ultimate discretionary choice

  • Wilkinson v. Garland, 601 U.S. 209 (2024): Provided the two-step framework for cancellation of removal: eligibility determinations and then the ultimate exercise of discretion. The Sixth Circuit emphasized that Morris’s case involved only step two because eligibility was conceded.
  • Hernandez v. Garland, 59 F.4th 762 (6th Cir. 2023) and Galvez-Bravo v. Garland, 119 F.4th 1038 (6th Cir. 2024): These cases supplied the doctrinal contrast: challenges to “reasoned decisionmaking” in applying eligibility criteria may be reviewable as legal questions, but challenges to the “ultimate discretionary choice to deny relief” are barred.
  • Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021): Used to reinforce that the agency may deny cancellation “even if the immigrant meets all eligibility factors,” placing the ultimate decision within the core of unreviewable discretion.
  • Ikenokwalu-White v. INS, 316 F.3d 798 (8th Cir. 2003): Cited (through Hernandez) for the proposition that consideration of an “improper” criterion can present a legal question—yet the Sixth Circuit found Morris’s arguments were, in substance, attacks on discretionary weighing, not a cognizable legal defect in the governing criteria.

4. Motions to reopen/reconsider and ineffective assistance: the Lozada “actuality” requirement

  • Stone v. I.N.S., 514 U.S. 386 (1995), overruled on other grounds by Riley v. Bondi, 606 U.S. 259 (2025): Confirmed that denial of a motion to reopen/reconsider is a separate final order reviewable under § 1252(a)(1).
  • Kada v. Barr, 946 F.3d 960 (6th Cir. 2020): Supplied the Sixth Circuit’s modern articulation of Lozada compliance (affidavit, notice to counsel, disciplinary complaint) and prejudice.
  • Hanna v. Holder, 740 F.3d 379 (6th Cir. 2014): Grounded the baseline rule that petitioners are bound by counsel’s concessions absent ineffective assistance.
  • Hamid v. Ashcroft, 336 F.3d 465 (6th Cir. 2003): The key authority for the “actual filing” principle: an affidavit saying a grievance “will be filed” does not satisfy Lozada; filing must occur before submission to the BIA.
  • Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), aff'd 857 F.2d 10 (1st Cir. 1988): The procedural framework itself, especially the purpose of notice to prior counsel (opportunity to respond) and disciplinary filing (deterrence and record reliability).
  • Matter of Compean, 24 I. & N. Dec. 710 (U.S. Att'y Gen. 2009) (Mukasey) and Matter of Compean, 25 I. & N. Dec. 1 (U.S. Att'y Gen. 2009) (Holder): The Sixth Circuit used these dueling Attorney General decisions to underscore that Lozada returned to a regime requiring actual filing rather than mere attachment.
  • Eugenio-Reyes v. Barr, 795 F. App'x 959 (6th Cir. 2020) (per curiam): Provided a concrete benchmark for acceptable evidence—postal label plus USPS tracking showing delivery— and illustrated why Morris’s photocopies without proof of sending were insufficient.
  • Pepaj v. Mukasey, 509 F.3d 725 (6th Cir. 2007): Cited for the forfeiture rule: failure to comply with Lozada forfeits the ineffective-assistance claim.
  • Ceasor v. Ocwieja, 655 F. App'x 263 (6th Cir. 2016) and Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (B.I.A. 1980): Used to explain why counsel’s assertions in a motion are not evidence; the BIA can require documentary or sworn proof.
  • Irias v. Bondi, 167 F.4th 1003 (8th Cir. 2026): Cited as persuasive authority that a copy of an email or draft submission, without proof of sending to relevant authorities, can be deemed procedurally deficient under Lozada.

5. DHS prosecutorial discretion vs BIA adjudicatory authority to deny reopening/dismissal

  • Heckler v. Chaney, 470 U.S. 821 (1985): Recognized that non-enforcement decisions are generally committed to agency discretion, but the Sixth Circuit treated this as insufficient to confer unilateral power on DHS to unwind an already-vested adjudicatory case.
  • Patel v. Attorney Gen., 523 F. App'x 121 (3d Cir. 2013); Patel v. Holder, 747 F.3d 493 (7th Cir. 2014); Hussaini v. Lynch, 644 F. App'x 403 (6th Cir. 2016): These cases were invoked to reflect the common statement that prosecutorial discretion lies with DHS, but the Sixth Circuit emphasized the statutory division of immigration authority (DHS enforcement vs Attorney General/BIA adjudication).
  • Kucana v. Holder, 558 U.S. 233 (2010): Central to jurisdiction and separation-of-powers framing: (a) the BIA exercises authority delegated by the Attorney General; and (b) the jurisdictional bar in § 1252(a)(2)(B)(ii) applies to discretion “specified under this subchapter” by statute, not discretion created only by regulation—preserving judicial review over denials of regulatory motions like reopening.
  • In re W-Y-U-, 27 I. & N. Dec. 17 (B.I.A. 2017), overruled on other grounds by In re Castro-Tum, 27 I. & N. Dec. 271 (U.S. Att'y Gen. 2018), and In re Ibarra-Vega, 29 I. & N. Dec. 476 (B.I.A. 2026): Cited to show the BIA’s consistent position that it does not “review” DHS’s initiation choices or itself “exercise” prosecutorial discretion. But that principle coexists with BIA authority to decide motions presented after jurisdiction vests.
  • In re Jaso and Ayala, 27 I. & N. Dec. 557 (B.I.A. 2019) and In re Yewondwosen, 21 I. & N. Dec. 1025 (B.I.A. 1997): These decisions supported the proposition that once jurisdiction vests, DHS has only the privilege to move to dismiss, and adjudicators must conduct an “informed adjudication,” not rubber-stamp dismissal—even if agreement is often persuasive.

6. Standing and “prudential standing”

  • Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) and Consumers' Rsch. v. FCC, 67 F.4th 773 (6th Cir. 2023): The court used these to confirm Article III standing because Morris is the object of the removal order and would benefit from reversal.
  • Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014): Cited to clarify that so-called “prudential standing” is not jurisdictional and is better understood as a merits/cause-of-action inquiry.

B. Legal Reasoning

1. Removability challenge dismissed for failure to exhaust

The court treated Morris’s late-breaking argument—that his Michigan conviction is not a removable firearms offense under 8 U.S.C. § 1227(a)(2)(C)—as a classic forfeiture-by-nonpresentation. Because Morris (through counsel) conceded removability before the IJ and then appealed only the discretionary denial of cancellation, the BIA never had the opportunity to address removability. Under Sixth Circuit doctrine requiring claim-by-claim presentation to the BIA, the argument was unexhausted.

The court also rejected a strategic attempt to avoid exhaustion by recasting removability as a jurisdictional predicate. Although 8 U.S.C. § 1252(a)(2)(C) limits judicial review of final orders against certain criminal aliens, the court explained that removability itself is a “question of law” reviewable under § 1252(a)(2)(D). Thus, the jurisdictional bar did not compel the court to decide the unexhausted removability claim, and the existence of subject-matter jurisdiction did not erase the independent, mandatory exhaustion rule of § 1252(d)(1).

2. The court drew a hard jurisdictional boundary around the “ultimate discretionary choice” in LPR cancellation

The most consequential jurisdictional move in the opinion is its insistence that where eligibility for cancellation is undisputed, challenges to the IJ’s discretionary weighing (e.g., how criminal history was balanced, whether dismissed or reduced charges were considered, and comparisons to other cases) target the unreviewable “ultimate discretionary choice” and are barred by § 1252(a)(2)(B).

While acknowledging that “reasoned decisionmaking” challenges can be reviewable legal questions in the eligibility context (as in non-LPR cancellation cases involving hardship or moral character), the court treated Morris’s issues as second-step discretion: the IJ’s equitable assessment after eligibility was conceded. That posture mattered: it moved the case from potentially reviewable legal standards to unreviewable discretionary judgment.

3. Lozada compliance required proof of actual notice and actual filing—not merely drafted documents

On Morris’s motion to reopen based on ineffective assistance, the BIA found a specific procedural defect: Morris supplied photocopies of a letter to prior counsel and a grievance form but no evidence they were actually mailed or filed. The Sixth Circuit held that this was not an abuse of discretion, emphasizing:

  • Lozada’s verbs (“informed,” “filed”) demand completed actions, not intent or drafts.
  • The purposes of Lozada—giving prior counsel an opportunity to respond and providing disciplinary accountability—are not served by un-sent letters.
  • Sixth Circuit precedent (Hamid v. Ashcroft) rejects “will be filed” compliance; documentary confirmation (as in Eugenio-Reyes v. Barr) is an exemplar of what suffices.
  • Counsel’s unsworn assertions in a motion are not evidence (Ceasor v. Ocwieja; Matter of Ramirez-Sanchez).

Because Lozada compliance is a prerequisite to reaching prejudice, the court affirmed the BIA’s procedural denial, and—citing Pepaj v. Mukasey—treated the ineffective-assistance claim as forfeited.

4. The BIA could deny DHS’s motion to reopen and dismiss where DHS failed to identify new facts or changed circumstances

The court separated two concepts often conflated in practice: DHS’s broad discretion to initiate or decline enforcement, and the BIA’s adjudicatory discretion once a case is within EOIR’s jurisdiction and a final order exists.

Applying the governing regulations, the court endorsed the BIA’s demand for an explanation: a motion to reopen should “state . . . new facts” that are material and previously unavailable (8 C.F.R. § 1003.2(c)(1)), and a motion to dismiss for changed circumstances under 8 C.F.R. § 239.2(a)(7) must identify what changed. DHS’s motion did neither; it offered only a conclusory statement that circumstances had changed.

The court also rejected Morris’s attempt to import the “mandatory grant” rule for certain unopposed motions to terminate under 8 C.F.R. § 1003.1(m)(1)(i)(G). The panel emphasized the regulation’s scope limitation: that provision applies to motions to terminate, not to the government’s dismissal mechanism under 8 C.F.R. § 1239.2(c) and § 239.2(a)(7), which remain discretionary (“may enter an order of dismissal”).

C. Impact

1. Appellate strategy: removability arguments must be raised early and precisely

The decision reinforces that a removability challenge cannot be preserved by implication, by later motions, or by jurisdictional reframing. If counsel concedes removability, the noncitizen must still present any legal challenge to removability to the BIA to preserve it for review.

2. A clearer (and narrower) path for judicial review in LPR cancellation cases

The opinion signals that when eligibility is undisputed, most efforts to repackage discretionary weighing as “legal error” will fail in the Sixth Circuit. Review remains more plausible where the dispute concerns eligibility standards or a legal constraint on factors the IJ may consider—but challenges to the bottom-line discretionary call are barred.

3. Lozada practice: documentary proof of mailing/filing is effectively indispensable

The court’s reasoning strongly incentivizes practitioners to submit objective proof (certified mail receipts, USPS tracking, electronic filing confirmations, acknowledgments from disciplinary bodies) and to ensure the petitioner’s affidavit expressly attests to actual notice and filing. Photocopies of unsigned, unmailed, or undocketed materials are high risk.

4. Government “reopen-and-dismiss” motions: conclusory assertions may be rejected, especially with public-safety facts

The decision affirms that the BIA can demand a record-based explanation from DHS and can deny reopening/dismissal where the motion fails regulatory requirements—particularly where the BIA identifies countervailing considerations such as extensive criminal history. This may reduce expectations of automatic grants of government reopen/dismiss motions once jurisdiction has vested.

IV. Complex Concepts Simplified

  • Cancellation of removal (8 U.S.C. § 1229b). A two-step process: (1) eligibility (statutory prerequisites), then (2) a discretionary decision whether relief should be granted even if eligible.
  • Jurisdictional bars (8 U.S.C. § 1252(a)(2)(B), (C)) and the “questions of law” savings clause (8 U.S.C. § 1252(a)(2)(D)). Courts generally cannot review discretionary decisions or some criminal-alien final orders, but they can review constitutional claims and legal questions. Even then, the noncitizen must still satisfy exhaustion rules.
  • Exhaustion (8 U.S.C. § 1252(d)(1)). You must present each claim to the BIA before raising it in a petition for review. It is mandatory if the government invokes it, even though it is not technically “jurisdictional.”
  • Motions to reconsider vs reopen. Reconsider argues the prior decision had legal/factual errors; reopen offers new facts. Denials are reviewed for “abuse of discretion.”
  • Matter of Lozada. A procedural checklist for ineffective-assistance claims: affidavit detailing failures, notice to prior counsel, and a disciplinary complaint—supported by proof that these steps were actually completed.
  • Prosecutorial discretion. DHS generally decides whether to bring a case, but once proceedings are underway (and especially after a final order), EOIR adjudicators retain authority under their regulations to grant or deny reopening or dismissal requests.
  • Categorical approach. A method used to decide whether a state conviction matches a federal removal ground by comparing statutory elements, not the defendant’s real-world conduct (not resolved on the merits here due to exhaustion/Lozada barriers).

V. Conclusion

Sam Morris v. Todd W. Blanche delivers three practical holdings with outsized real-world consequences: (1) removability arguments must be exhausted with precision before the BIA and cannot be rescued by jurisdictional reframing; (2) where LPR cancellation eligibility is undisputed, challenges to the IJ’s discretionary balancing are barred from judicial review by 8 U.S.C. § 1252(a)(2)(B); and (3) ineffective-assistance motions must satisfy Lozada with proof of actual notice and actual disciplinary filing, while the BIA retains discretion to deny unsupported government motions to reopen and dismiss—even when DHS invokes prosecutorial discretion.