Torres-Jimenez: A Motion to Reopen Must Itself Show Prima Facie Adjustment Eligibility—Bare References to Pending VAWA Filings and Unraised Visa-Availability Theories Are Insufficient

Case: Heraclio Torres-Jimenez v. Todd Blanche
Court: United States Court of Appeals for the Sixth Circuit
Date: 2026-08-19 (Not Recommended for Publication)
Disposition: Petition for review denied (Clay, J., dissenting)

1. Introduction

This immigration case arose from Heraclio Torres-Jimenez’s effort to reopen removal proceedings after the Board of Immigration Appeals (“BIA”) affirmed an order of removal (with voluntary departure). Torres-Jimenez, a Mexican national who entered without admission or inspection in 1994, initially sought cancellation of removal, which the immigration judge denied. After the BIA affirmed the removal order in January 2025, Torres-Jimenez filed a March 2025 motion to reopen and terminate based on newly filed immigration applications: a VAWA-based Form I-360 (as a self-petitioning parent of a U.S. citizen) and a Form I-485 application to adjust status.

The key issue on review was whether the BIA abused its discretion in denying reopening on the ground that Torres-Jimenez failed to establish a prima facie case for adjustment of status—specifically, the statutory requirement that an immigrant visa be “immediately available.” A secondary but decisive appellate issue was whether Torres-Jimenez could obtain relief based on a legal theory about visa availability that he did not present to the BIA in his motion to reopen.

2. Summary of the Opinion

Majority (Per Curiam)

The Sixth Circuit denied the petition for review. Applying abuse-of-discretion review to the denial of reopening, the court held that Torres-Jimenez did not carry his “heavy burden” to show prima facie eligibility for adjustment of status. His motion to reopen contained only a “barebones” reference to his pending I-360 and I-485 filings, attached only receipt notices (not the petitions themselves), and offered no substantive explanation of how he met the statutory prerequisites—particularly “immediate availability” of a visa.

On appeal, Torres-Jimenez argued that the BIA misunderstood the law because certain VAWA-related filings can be submitted concurrently. Even assuming the BIA erred, the court declined to grant review based on an “immediate availability” argument that Torres-Jimenez did not make to the BIA in the motion to reopen.

Dissent (Clay, J.)

Judge Clay would have granted the petition, vacated the BIA’s order, and remanded because the BIA’s reasoning was deficient and arguably circular. The dissent emphasized Sixth Circuit administrative-law principles requiring the BIA to provide an explanation sufficient for meaningful judicial review, invoking Chenery-based limits on affirming on unstated grounds. The dissent also discussed 8 C.F.R. § 245.2(a)(2)(i)(B) and DHS/USCIS guidance suggesting visas are “always immediately available” for “immediate relatives,” arguing the BIA’s treatment of “immediate availability” was at least unclear and required explanation on remand.

3. Analysis

3.1 Precedents Cited

A. Standard of review and the reopening framework

  • Abdulahad v. Garland, 99 F.4th 275 (6th Cir. 2024) — Used by the majority for the abuse-of-discretion standard and the breadth of BIA discretion; used by the dissent for the principle that the “proper course” is usually remand when agency reasoning is deficient and for the limited harmless-error/futility doctrine.
  • Daneshvar v. Ashcroft, 355 F.3d 615 (6th Cir. 2004) — Quoted (via Abdulahad) for the BIA’s “broad” discretion in reopening.
  • Allabani v. Gonzales, 402 F.3d 668 (6th Cir. 2005) — Supplies the Sixth Circuit’s formulation of when the BIA abuses its discretion (no rational explanation, departure from policy, impermissible basis).
  • INS v. Doherty, 502 U.S. 314 (1992) — Provides the Supreme Court’s canonical trio of grounds for denying reopening, including failure to establish a prima facie case.
  • INS v. Abudu, 485 U.S. 94 (1988) — Cited for the petitioner’s “heavy burden” in reopening; this undergirds the majority’s insistence that the motion must do the work of demonstrating eligibility, not merely gesture at pending filings.

B. What “prima facie” showing requires

  • Trujillo Diaz v. Sessions, 880 F.3d 244 (6th Cir. 2018) — Defines the prima facie reopening standard as a “reasonable likelihood,” not a conclusive showing. The majority uses this to measure the thinness of Torres-Jimenez’s submission; the dissent uses it (via other cases) to stress meaningful-review requirements.

C. Adjustment-of-status requirements

  • Hatchet v. Andrade, 106 F.4th 574 (6th Cir. 2024) — Recites adjustment-of-status elements: (1) application; (2) immigrant-visa eligibility/admissibility; (3) “immediate availability”; plus favorable discretion. The majority uses this as the operative checklist Torres-Jimenez failed to address.

D. Remand, Chenery limits, and “harmless error”

  • Preçetaj v. Sessions, 907 F.3d 453 (6th Cir. 2018) — Dissent relies on it for abuse-of-discretion framing and for requiring a rational explanation enabling review.
  • Mapouya v. Gonzales, 487 F.3d 396 (6th Cir. 2007) — Quoted for the ordinary remand rule when agency reasoning is erroneous or incomplete.
  • E.A.C.A. v. Rosen, 985 F.3d 499 (6th Cir. 2021) — Invoked for remand where the BIA fails to provide sufficient explanation.
  • Marqus v. Barr, 968 F.3d 583 (6th Cir. 2020) — Used to support remand when BIA “cursorily” denies reopening.
  • Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018) — Stands for the limitation that courts may not assume the BIA considered unmentioned factors.
  • SEC v. Chenery Corp., 318 U.S. 80 (1943) — Referenced (via Japarkulova) for the administrative-law principle that courts should not uphold agency action on reasons different from those given.
  • Japarkulova v. Holder, 615 F.3d 696 (6th Cir. 2010) — Supplies both the Chenery articulation and the “no reason to believe remand might lead to a different result” harmless-error framing.
  • Karimijanaki v. Holder, 579 F.3d 710 (6th Cir. 2009) — Quoted for “futility” as the key to harmless error in this context.
  • Dieng v. Barr, 947 F.3d 956 (6th Cir. 2020) — Cited (in dissent) for the requirement that the BIA articulate a basis allowing meaningful review when denying reopening.
  • Guts v. Lynch, 623 F. App’x 304 (6th Cir. 2015) and Scorteanu v. I.N.S., 339 F.3d 407 (6th Cir. 2003) — Invoked to show the BIA need not write an “exegesis,” but must say enough to permit review.
  • Ruiz Lafita v. Garland, No. 23-3560, 2024 WL 2874576 (6th Cir. June 7, 2024) and Hanna v. Mukasey, 290 F. App’x 867 (6th Cir. 2008) — Cited as additional Sixth Circuit examples supporting remand where explanation is lacking.

E. Issue preservation/exhaustion (raised by the dissent as a fairness problem)

  • Solano-Chicas v. Gonzales, 440 F.3d 1050 (8th Cir. 2006); Martinez-Garcia v. U.S. Att’y Gen., No. 23-11654, 2024 WL 3342466 (11th Cir. July 9, 2024); Moussa v. I.N.S., 302 F.3d 823 (8th Cir. 2002) — Cited by the dissent for the proposition that a petitioner should not be penalized for failing to anticipate an agency’s legal error that crystallizes only in the agency’s decision.

3.2 Legal Reasoning

A. The majority’s core rule: the motion to reopen must contain the eligibility showing

The majority’s reasoning is procedural and evidentiary: reopening is discretionary and disfavored, and the movant must supply enough in the motion to show a “reasonable likelihood” of meeting the statutory prerequisites for the ultimate relief. Here, the ultimate relief was adjustment of status under 8 U.S.C. § 1255(a), which requires (among other things) that an immigrant visa be “immediately available.”

On that framework, the majority treated Torres-Jimenez’s filing as insufficient not because VAWA self-petitioners can never satisfy visa availability, but because this particular motion did not attempt to satisfy that element at all. It did not meaningfully explain:

  • why a visa was immediately available;
  • what statutory ground made him visa-eligible;
  • what facts in the petitions would satisfy the VAWA pathway; or
  • how, apart from criminal history, he met adjustment prerequisites.

The majority’s insistence that “immediate availability” arguments were not made before the BIA (the words did not appear in the motion) functions as a gatekeeping principle: a petitioner cannot rely on a legal theory on judicial review when the motion to reopen failed to present it as part of the prima facie case. Even if the BIA’s phrasing about needing an “approved Form I-360” was arguably imprecise, the majority held that the petitioner’s own omissions meant he did not satisfy his burden.

B. The dissent’s counter-rule: inadequate BIA explanation generally requires remand

The dissent framed the problem as one of administrative reasoning and reviewability. In Judge Clay’s view, the BIA’s analysis was too conclusory and arguably circular (pending I-360 → no immediate visa → no prima facie eligibility), and the BIA did not clearly articulate the legal basis for treating a pending I-360 as defeating “immediate availability.”

The dissent also highlighted legal materials suggesting the opposite could be true for “immediate relatives.” It pointed to 8 C.F.R. § 245.2(a)(2)(i)(B) (permitting concurrent filing for immediate-relative-type classifications), the statutory definition of “immediate relatives” in 8 U.S.C. § 1151(b)(2)(A)(i), and the VAWA provision referenced in the dissent (codified at 8 U.S.C. § 1154(a)(1)(A)(vii)), along with USCIS guidance stating that visas are always immediately available for immediate relatives. From that, the dissent concluded that “immediate availability” was at least ambiguous here and required a reasoned BIA explanation.

Finally, the dissent resisted “harmless error” affirmance. Because the BIA did not identify other defects beyond visa availability, the dissent argued a court should not supply alternative grounds (Chenery) unless futility is clear—and the BIA’s thin order did not make futility clear.

3.3 Impact

  • Practical drafting rule for motions to reopen: In the Sixth Circuit, this decision reinforces that a motion to reopen seeking adjustment of status must affirmatively address the statutory elements—especially “immediate availability”—and include supporting documentation or substantive facts, not merely receipt notices showing that forms were filed.
  • Issue-preservation pressure at the agency stage: Even where the law may be contestable (e.g., concurrent filing rules for certain classifications), the majority’s approach incentivizes litigants to anticipate and preemptively brief each eligibility element in the motion itself, because appellate courts may refuse to credit theories not presented to the BIA as part of the prima facie showing.
  • Continuing tension over Chenery and “futility”: The split highlights a recurring Sixth Circuit fault line: when the BIA’s reasoning is thin, the dissent’s view favors remand for explanation, while the majority is more willing to deny if the movant’s submission itself is deficient. Future cases will likely turn on how clearly the motion addresses each eligibility requirement and how explicitly the BIA identifies the defect(s).
  • VAWA/adjustment interplay remains underexplored in the majority: The dissent foregrounded VAWA/immediate-relative concepts and 8 C.F.R. § 245.2(a)(2)(i)(B), but the majority resolved the case on the petitioner’s failure to present those arguments and facts to the BIA—leaving substantive questions about pending I-360s and “immediate availability” largely unanswered.

4. Complex Concepts Simplified

  • Motion to reopen: A request to restart completed immigration proceedings. It is discretionary and requires showing, at minimum, a plausible (prima facie) entitlement to the relief sought.
  • Prima facie eligibility (“reasonable likelihood”): Not proof that you will win, but enough facts and law to show a realistic chance of meeting the legal requirements.
  • Adjustment of status (8 U.S.C. § 1255(a)): A process allowing certain noncitizens already in the U.S. to become lawful permanent residents, if they have an immediately available immigrant visa, are admissible, and merit discretion.
  • “Immediately available” immigrant visa: A requirement that there is a visa number available for the applicant’s category at the relevant time. The dissent emphasized that “immediate relatives” are generally not subject to numerical caps, while the majority faulted the petitioner for not making any such showing to the BIA.
  • VAWA self-petition (Form I-360): A mechanism allowing certain abused noncitizens to self-petition for immigration classification without relying on the abuser.
  • Chenery doctrine: Courts generally cannot uphold an agency decision for reasons the agency itself did not give.
  • Harmless error / futility: Even if the agency made a reasoning mistake, a court may decline to remand if the outcome is clearly foreordained. The dissent argued futility was not clear because the BIA did not explain other deficiencies.

5. Conclusion

Heraclio Torres-Jimenez v. Todd Blanche underscores a stringent, practice-shaping point about reopening in the Sixth Circuit: the motion to reopen must itself set out a prima facie case for the ultimate relief, including “immediate availability” of a visa for adjustment of status, and courts may decline to consider visa-availability theories raised only after the BIA rules. The dissent, invoking Chenery and Sixth Circuit remand precedents, would require the BIA to explain itself more fully—especially where governing regulations and agency guidance may cut against the BIA’s stated rationale. The decision thus both tightens expectations on movants’ submissions and illustrates ongoing disagreement about when inadequate agency reasoning mandates remand.