Voluntary Remand to Reconsider Voluntary Departure Without Reaching Merits; Exhaustion Required for Agency-Bias Due Process Claims

Introduction

In Newton Scott Mulama v. Todd W. Blanche, Acting U.S. Attorney General (6th Cir. Aug. 6, 2026), Newton Scott Mulama, a Kenyan national who overstayed a student visa after earning an M.B.A., petitioned for review of a Board of Immigration Appeals (BIA) decision denying (1) cancellation of removal under 8 U.S.C. § 1229b(b)(1), and (2) reinstatement of voluntary departure under 8 U.S.C. § 1229c and 8 C.F.R. § 1240.26.

The key issues were: (a) whether Mulama exhausted a due-process claim alleging executive-branch bias in removal adjudication; (b) whether the BIA committed legal error (or unreasonably applied law to facts) in finding no “exceptional and extremely unusual hardship” to Mulama’s U.S.-citizen children; (c) whether the BIA abused its discretion in denying a motion to remand based on post-hearing evidence (including an autism diagnosis and changes to support/custody arrangements); and (d) whether the BIA erred in refusing to reinstate voluntary departure for lack of proof that Mulama posted the required bond.

Summary of the Opinion

The Sixth Circuit (Judge Murphy) denied the petition as to the due-process bias claim (for failure to exhaust) and as to cancellation of removal (finding the BIA correctly interpreted and reasonably applied the hardship standard). The court also upheld the BIA’s denial of Mulama’s motion to remand, concluding the new evidence was not “material” because it would not likely change the hardship outcome.

On voluntary departure, the court did not decide the merits or fully resolve its jurisdictional boundary between factual and mixed questions. Instead, it granted the Attorney General’s request for a voluntary remand so the BIA could reassess whether Mulama qualifies for voluntary departure, and remanded “without reaching any issues on the merits.”

Analysis

Precedents Cited

1) Exhaustion of administrative remedies and due-process “bias” claims

  • Santos-Zacaria v. Garland, 598 U.S. 411 (2023): Cited for the principle that exhaustion under 8 U.S.C. § 1252(d)(1) is a mandatory claim-processing requirement and for the general insistence that issues be raised in the administrative process before judicial review.
  • Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021): Reinforced the requirement that claims be presented to the agency first; also cited alongside other Sixth Circuit authority for the need to exhaust bias-based due-process allegations.
  • Mazariegos-Rodas v. Garland, 122 F.4th 655 (6th Cir. 2024): The opinion’s central exhaustion authority. While some due-process claims may bypass exhaustion, this case (quoting Sterkaj v. Gonzales and Tomaszczuk v. Whitaker) confirms that due-process claims alleging “agency bias” must be exhausted.
  • Sterkaj v. Gonzales, 439 F.3d 273 (6th Cir. 2006) and Tomaszczuk v. Whitaker, 909 F.3d 159 (6th Cir. 2019): Quoted via Mazariegos-Rodas to define the exhaustion rule’s application to alleged adjudicator/agency bias.
  • Herrera v. Bondi, 162 F.4th 617 (6th Cir. 2025): Used to emphasize that, even if exhaustion is not jurisdictional, courts must enforce it when the government raises the defense.
  • Khalil v. President, 164 F.4th 259 (3d Cir. 2026) (per curiam): Cited by Mulama for a transfer/fact-finding remedy theory; the Sixth Circuit did not reach this pathway because it disposed of the bias claim on exhaustion grounds.

2) Cancellation of removal hardship standard and judicial review

  • Nwosu v. Blanche, 177 F.4th 732 (6th Cir. 2026): Cited for the proposition that “exceptional and extremely unusual hardship” is a “demanding standard” and that hardship must be evaluated in the “totality”/cumulative sense.
  • Moctezuma-Reyes v. Garland, 124 F.4th 416 (6th Cir. 2024): Cited for the “extremely rare” characterization of qualifying hardship and for rejecting reliance on ordinary removal-related hardships.
  • In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001): The foundational BIA articulation that hardship must go “substantially” beyond ordinary consequences; also cited to confirm that factors like a child’s age can be relevant but are not dispositive.
  • Baltazar Us v. Blanche, 174 F.4th 509 (6th Cir. 2026): Used both for examples of relevant hardship considerations (economic, health, education) and for the deferential “reasonable adjudicator” standard under 8 U.S.C. § 1252(b)(4)(B).
  • Wilkinson v. Garland, 601 U.S. 209 (2024): Key jurisdictional framework—courts cannot review historical fact-finding under 8 U.S.C. § 1252(a)(2)(B), but can review the application of a general legal standard to facts (a mixed question), with deference.
  • Bonilla-Cruz v. Bondi, 2025 WL 488765 (6th Cir. Feb. 13, 2025): Provided a comparator showing the Sixth Circuit has upheld no-hardship findings even where children might need “public assistance,” underscoring how demanding the standard is.
  • State Farm Fire and Cas. Co. v. United States ex rel. Rigsby, 580 U.S. 26 (2016): Cited for the interpretive principle that clear statutory text controls over legislative history—used to reject Mulama’s argument that a congressional report supports a lax hardship test.
  • Wright v. Spaulding, 939 F.3d 695 (6th Cir. 2019): Cited for adherence to binding circuit precedent once the circuit has settled the meaning of a legal standard.
  • Orta Martinez v. Bondi, 2026 WL 208869 (6th Cir. Jan. 27, 2026) (per curiam): Cited to reject the “wrong comparator group” theory (that the BIA compares only against hardship in cases involving young children rather than against removals generally).
  • Diaz-Roblero v. Garland, 2024 WL 3596873 (6th Cir. July 31, 2024), and related Sixth Circuit cases (Mejia Perez v. Blanche, Muela v. Blanche, Martinez-Garcia v. Blanche, Hernandez v. Bondi, Pablo-Ventura v. Bondi, Canaca Rodriguez v. Bondi): Cited to reject “failure to aggregate” arguments where the BIA explicitly states it considered hardship cumulatively.
  • Palucho v. Garland, 49 F.4th 532 (6th Cir. 2022): Cited to reject imposing “opinion-writing” requirements on the BIA; the BIA need not provide extensive detail so long as it identifies and addresses the key considerations.

3) Motions to remand/reopen and “material” new evidence

  • Akrawi v. Garland, 2023 WL 2293532 (6th Cir. Mar. 1, 2023) and Liu v. Holder, 560 F.3d 485 (6th Cir. 2009): Established that the BIA generally applies motion-to-reopen standards to motions to remand, and that review is for abuse of discretion.
  • Sustaita-Lopez v. Garland, 2024 WL 509619 (6th Cir. Feb. 9, 2024) (quoting Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018)): Used for the definition of “material” evidence: evidence that “would likely change the result in the case.”
  • Yousif v. Garland, 53 F.4th 928 (6th Cir. 2022): Cited for the governing framework and standard of review for reopening/remand decisions.
  • Garcia v. Bondi, 135 F.4th 1 (1st Cir. 2025): Invoked by Mulama for a “rationale” requirement; the Sixth Circuit found the BIA’s reasoning sufficiently clear because it treated the new evidence as largely cumulative/insufficiently outcome-changing.

4) Voluntary departure, jurisdiction, and voluntary remand

  • Pastor-Hernandez v. Bondi, 155 F.4th 839 (6th Cir. 2025): Provided the jurisdictional framework for voluntary departure denials—generally barred by 8 U.S.C. § 1229c(f), but reviewable for “questions of law” under 8 U.S.C. § 1252(a)(2)(D); also distinguishes factual questions (unreviewable) from legal/mixed questions.
  • Meza-Rios v. Holder, 512 F. App’x 749 (10th Cir. 2013) and Trindade v. U.S. Att’y Gen., 458 F. App’x 862 (11th Cir. 2012) (per curiam): Cited to emphasize that jurisdictional bars on reviewing factual determinations do not disappear simply because the record may undermine the agency’s factual view.
  • Amezola-Garcia v. Lynch, 846 F.3d 135 (6th Cir. 2016): The key authority supporting voluntary remand when the agency requests it and the petitioner does not oppose. The Sixth Circuit relied on this practice to remand the voluntary-departure issue without deciding the merits.
  • Limnia, Inc. v. U.S. Dep’t of Energy, 857 F.3d 379 (D.C. Cir. 2017) and SKF USA Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001): Cited as additional appellate support for the “fairly freely issued” voluntary remand practice.
  • Solis-Nolasco v. Holder, 533 F. App’x 601 (6th Cir. 2013) (per curiam): Cited as Sixth Circuit practice remanding on the government’s request even where the voluntary-departure issue may be fact-bound.

Legal Reasoning

1) Bias claim rejected on exhaustion grounds

The court held Mulama’s due-process theory—premised on alleged executive-branch bias and rhetorical framing of immigration adjudication—was not reviewable because he did not present it to the immigration judge or the BIA. Under 8 U.S.C. § 1252(d)(1), and Sixth Circuit precedent requiring exhaustion of bias-based due-process claims, the court enforced the exhaustion defense once the government raised it (Herrera v. Bondi). The court also rejected Mulama’s attempt to excuse exhaustion based on the agency being the alleged biased decision-maker, noting Sixth Circuit cases had rejected any “bias exception.”

2) Hardship: correct legal standard and reasonable application

On cancellation of removal, the court accepted the governing legal baseline: “exceptional and extremely unusual hardship” is a high bar, excluding harms that are ordinary consequences of removal (Moctezuma-Reyes v. Garland; In re Monreal-Aguinaga). The court then applied the post-Wilkinson v. Garland review structure: legal meaning is reviewed de novo; historical fact-finding is jurisdictionally insulated; and applying the general hardship standard to the facts is a deferential mixed-question review.

The BIA’s analysis—considering the “cumulative hardship” to all three children and concluding that financial and emotional harms did not rise beyond the ordinary in light of (i) the sons’ mother’s substantial income and (ii) the daughter’s longstanding primary caregiving arrangement—was upheld because a “reasonable adjudicator” could agree (Baltazar Us v. Blanche; 8 U.S.C. § 1252(b)(4)(B)).

The court rejected three claimed legal errors:

  1. Legislative-history-based redefinition of hardship: rejected because the statutory text is unambiguous and controls (State Farm Fire and Cas. Co. v. United States ex rel. Rigsby).
  2. Improper comparator group: rejected as inconsistent with Sixth Circuit precedent rejecting similar framing (Orta Martinez v. Bondi).
  3. Failure to aggregate: rejected because the BIA explicitly stated it considered cumulative hardship, and the Sixth Circuit does not require detailed “opinion-writing” beyond addressing the core points (Palucho v. Garland; Muela v. Blanche and related cases).

3) Motion to remand denied: new evidence not “material”

Treating the motion to remand under motion-to-reopen standards, the court held the BIA did not abuse its discretion in finding the new evidence unlikely to change the hardship determination. The autism diagnosis did not establish severe impairments (as characterized by the BIA), and the child would continue to receive treatment and educational support. The new custody/support facts did not materially alter the practical reality that visitation remained limited and the child had historically lived without the support now emphasized. Under the “would likely change the result” definition of materiality (Sustaita-Lopez v. Garland; Hernandez-Perez v. Whitaker), the court found no reversible error.

4) Voluntary departure: remand granted on the government’s request

Mulama argued the record contained proof of bond posting (8 C.F.R. § 1240.26(c)(3)(ii)), while the BIA stated it did not. The court flagged a difficult jurisdictional question under Pastor-Hernandez v. Bondi: if the dispute is purely factual (whether proof exists), review may be barred; if it is mixed/legal (whether the proffer is “sufficient proof”), review may be available.

The court avoided deciding the jurisdiction/merits question because the Attorney General requested a voluntary remand for the BIA to reconsider voluntary departure. Relying on Amezola-Garcia v. Lynch (and other circuits’ remand practice), the Sixth Circuit granted remand for further agency consideration.

Impact

  • Reinforced exhaustion discipline for bias-based due-process claims: Petitioners in the Sixth Circuit must raise “agency bias” theories in the immigration proceedings themselves, or risk dismissal regardless of the theory’s seriousness.
  • Continued tightening around “exceptional and extremely unusual hardship”: The decision underscores that stable alternative caregivers and financially capable parents substantially weaken hardship claims, and that emotional distress—while real—will often be characterized as the ordinary consequence of removal absent compounding, exceptional features.
  • Procedural efficiency via voluntary remand: The opinion signals that where the government concedes a need for agency reexamination of voluntary departure (especially on record/processing issues like bond-proof), the Sixth Circuit may remand without expending appellate resources on close jurisdictional lines.
  • Reduced traction for “failure-to-aggregate” briefing: So long as the BIA states it considered “cumulative” hardship and addresses core facts, the Sixth Circuit will not impose detailed explanation requirements.

Complex Concepts Simplified

Cancellation of removal
A discretionary form of relief allowing certain noncitizens to remain in the United States if they meet statutory prerequisites; here, the disputed prerequisite was proving removal would cause “exceptional and extremely unusual hardship” to U.S.-citizen children (8 U.S.C. § 1229b(b)(1)(D)).
“Exceptional and extremely unusual hardship”
A heightened hardship standard—more than the common financial and emotional consequences of family separation. The Sixth Circuit repeatedly describes qualifying hardship as “extremely rare.”
Exhaustion (8 U.S.C. § 1252(d)(1))
A requirement that issues be presented to the agency first. Even constitutional due-process claims alleging “agency bias” must be exhausted in the Sixth Circuit.
Jurisdictional limits and “mixed questions”
Courts often cannot reweigh or reconsider “historical facts” found by immigration adjudicators. But courts can review legal questions and, in some settings, the application of a legal standard to facts (mixed questions), typically with deference.
Voluntary departure bond proof (8 C.F.R. § 1240.26(c)(3))
If an immigration judge grants voluntary departure, the noncitizen must post a bond within five days. On appeal, the BIA will reinstate voluntary departure only if the noncitizen provides “sufficient proof” of timely bond posting.

Conclusion

Mulama is a procedural-and-standards-of-review decision with two practical takeaways. First, in the Sixth Circuit, due-process claims alleging agency bias must be exhausted before the BIA, or they will be rejected when raised for the first time on petition for review. Second, the court continues to treat “exceptional and extremely unusual hardship” as an “extremely rare” showing and will uphold the BIA’s denial so long as the agency identifies and cumulatively evaluates the relevant hardships within the deferential “reasonable adjudicator” framework.

The opinion’s most forward-looking move is remedial: without deciding the merits of the voluntary-departure bond-proof dispute (or the jurisdictional characterization of that dispute), the court granted a voluntary remand requested by the government, allowing the BIA to reassess eligibility for voluntary departure.