USCA4 Appeal: 23-1723 Doc: 74 Filed: 12/18/2024 Pg: 1 of 20

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1723

FELIX JACOBO SALOMON-GUILLEN,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Argued: September 24, 2024 Decided: December 18, 2024

Before DIAZ, Chief Judge, and WILKINSON and BERNER, Circuit Judges.

Petition denied in part and dismissed in part by published opinion. Chief Judge Diaz wrote the opinion, in which Judge Wilkinson and Judge Berner joined.

ARGUED: Benjamin Ross Winograd, IMMIGRANT & REFUGEE APPELLATE CENTER, LLC, Alexandria, Virginia, for Petitioner. Craig Alan Newell, Jr., UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, Rebekah Nahas, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. USCA4 Appeal: 23-1723 Doc: 74 Filed: 12/18/2024 Pg: 2 of 20

DIAZ, Chief Judge:

Felix Jacobo Salomon-Guillen petitions for review of a final order of removal of the

Board of Immigration Appeals. A temporary Board member—also called a Temporary

Appellate Immigration Judge—who had served multiple six-month terms participated in

his appeal. Salomon-Guillen asks us to decide whether such temporary judges’ terms are

renewable under the regulatory provision in effect during his administrative appeal. We

agree with the government that the answer is yes.

Salomon-Guillen also challenges the Board’s denial of his applications for a waiver

of inadmissibility and adjustment of status. But we lack jurisdiction over these issues. So

we dismiss that part of his petition.

I.

A.

Salomon-Guillen and his wife, the recording artist Lucia Parker Salomon, are from

El Salvador. They entered the United States in 2009. Parker Salomon entered the country

on an O-1 visa—reserved for individuals with extraordinary abilities or achievements—

and later became a naturalized citizen. Salomon-Guillen was admitted on an O-3 visa—

reserved for family members of O-visa holders—as Parker Salomon’s husband. He later

became a permanent resident. Salomon-Guillen was the manager of his wife’s music

career.

In January 2013, Salomon-Guillen began working as a marketing director for a book

publisher that HarperCollins later acquired. In that role, he issued marketing contracts to

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a company that he controlled, without HarperCollins’s knowledge of his interest in the

contractor. The contracts also inflated the value of the work performed. Salomon-

Guillen’s scheme cost HarperCollins about $1.4 million.

The government indicted Salomon-Guillen for wire fraud. He pleaded guilty and

was sentenced to 18 months’ imprisonment.

B.

Because Salomon-Guillen’s conviction is an aggravated felony as defined by the

Immigration and Nationality Act, the government sought to remove him from the country.

(a)(2)(A)(iii), 1101(a)(43)(M)(i). Salomon-Guillen conceded that he was

removable as charged, so he applied for adjustment of status under

(a).

That application, if granted, would give Salomon-Guillen lawful permanent resident status.

Since his conviction rendered him inadmissible to the United States and therefore ineligible

for adjustment of status, he also applied for an inadmissibility waiver under

(h).

The immigration judge denied Salomon-Guillen’s applications. The judge noted

that the only obstacle to Salomon-Guillen’s statutory eligibility for adjustment of status

was his wire fraud conviction, which could be overlooked if he received the inadmissibility

waiver he applied for. To get that waiver, Salomon-Guillen had to show that his removal

would “result in extreme hardship” to a qualifying relative who is a United States citizen

or lawful resident and that he merited a waiver in the exercise of the Attorney General’s

discretion.

§ 1182(h)(1)(B).

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Salomon-Guillen claimed that his removal would cause hardship to his wife and his

mother, both of whom are citizens. Salomon-Guillen argued that his wife’s career would

suffer if he were not in the United States to serve as her manager, that they could not afford

to hire a manager to replace him, and that Parker Salomon wasn’t able to serve as her own

manager since, as the immigration judge put it, she lacked “the capacity to do things such

as contract negotiation.” J.A. 312.

Salomon-Guillen also argued that his wife would experience “emotional and

physical hardship” if he were removed. J.A. 312. She suffered from chronic mental health

issues and was in the middle of a high-risk pregnancy at the time of the proceedings before

the immigration judge. Salomon-Guillen argued that the medical care she could receive in

the United States was superior to what she could receive in El Salvador. Salomon-Guillen

also presented evidence that, were his wife to return with him to El Salvador, she would be

unable to earn a living as a singer and would fear for her safety due to her status as a

celebrity and familial ties to politicians belonging to the country’s minority party.

The immigration judge wasn’t convinced that the hardship to Parker Salomon

qualified as extreme. He found that whether Parker Salomon remained in the United States

or returned to El Salvador with Salomon-Guillen, the financial consequences were self-

inflicted. The immigration judge also found unpersuasive Parker Salomon’s assertions that

she required specialized medical care in the United States and feared for her safety in El

Salvador, reasoning that these claims relied on a series of hypotheticals.

As for Salomon-Guillen’s mother, Salomon-Guillen posited that she would

experience financial and emotional hardship if he were removed because she (1) would be

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unable to travel to El Salvador to visit him, (2) had suffered stress, anxiety, and insomnia

since being separated from her son, and (3) would lose her son’s financial support if he

were removed.

But here, too, the immigration judge was unpersuaded. The judge accepted that

Salomon-Guillen’s mother would “experience some financial and emotional hardship”

should her son be removed, but concluded that these consequences did not “rise to the level

of extreme hardship.” J.A. 317.

The immigration judge also concluded that, even assuming Salomon-Guillen had

met his burden to show extreme hardship, he wouldn’t merit an inadmissibility waiver in

the exercise of discretion because of the severity of his fraud offense and the fact that he

“failed to express regret toward his fellow employees and former employers at

HarperCollins, who suffered great financial harm due to [his] actions.” J.A. 319.

Likewise, the judge concluded that even if Salomon-Guillen received an inadmissibility

waiver and was therefore statutorily eligible for adjustment of status, he wouldn’t merit an

adjustment as a matter of discretion.

C.

The Board of Immigration Appeals affirmed in an opinion written by Temporary

Appellate Immigration Judge Denise G. Brown. The Attorney General appointed Judge

Brown to a six-month term under

(g)(1) and later reappointed her three

times. Judge Brown was serving her fourth six-month term when she served on the three-

judge panel that decided Salomon-Guillen’s case.

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The Board sustained the immigration judge’s finding that Salomon-Guillen’s

removal wouldn’t result in extreme hardship to Parker Salomon. 1 According to the Board,

Salomon-Guillen waived any argument that Parker Salomon would experience extreme

hardship if she were to remain in the United States since he failed to challenge that finding.

As a result, the Board considered only whether Parker Salomon would suffer extreme

hardship if she accompanied Salomon-Guillen to El Salvador. The Board concluded that

Salomon-Guillen failed to show that (1) Parker Salomon couldn’t earn a living as a singer

while living in El Salvador, (2) treatment for Parker Salomon’s medical issues would be

unavailable in El Salvador, or (3) Parker Salomon would be unable to take security

precautions to alleviate her safety concerns.

The Board also reviewed de novo whether Salomon-Guillen should receive an

inadmissibility waiver in the exercise of discretion. It concluded that the “positive

equities” Salomon-Guillen presented (including the time he spent in the United States, his

family ties to United States citizens, letters of support he submitted, and hardship to him

and his family) didn’t outweigh the negative equities of his case (his serious criminal

conduct). So the Board denied Salomon-Guillen’s applications.

This petition followed.

1 Salomon-Guillen didn’t raise the issue of hardship to his mother on appeal to the Board and does not do so here.

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II.

Salomon-Guillen first asks us to vacate the Board’s decision and remand for

consideration by a “properly appointed” Board member. Pet’r’s Br. at 10. We decline to

do so.

Under

(a)(4), temporary Board members may be appointed to

“adjudicate assigned cases.” The version of this regulation in effect when the Board

decided Salomon-Guillen’s administrative appeal authorized the Director of the Executive

Office for Immigration Review to make such appointments “for terms not to exceed six

months.” 2

(a)(4) (2022).

Salomon-Guillen argues that Judge Brown unlawfully served for longer than six

months when the Board decided his appeal. The government contests the substance of this

argument, but also challenges Salomon-Guillen’s ability to make it. We conclude that

Salomon-Guillen can indeed present this argument, but we find that it fails on the merits.

A.

We begin with the government’s opposition to Salomon-Guillen’s ability to raise

his procedural challenge.

As with all regulations, the regulation establishing the temporary Board member

position was promulgated under the Administrative Procedure Act. This statute identifies

The regulation has since been amended to (1) clarify that the Attorney General 2

appoints temporary Board members, and (2) reflect that such members are appointed “for renewable terms not to exceed six months.” Expanding the Size of the Board of Immigration Appeals,

, 22636 (Apr. 2, 2024) (emphasis added) (codified at

(a)(4)).

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two kinds of regulations. The first are “substantive” or “legislative-type” rules, which are

said to “have the force of law.” Chrysler Corp. v. Brown,

, 301–02 (1979).

The second are “interpretive rules, general statements of policy, or rules of agency

organization, procedure, or practice.”

(b)(A).

The first category of rules must go through the typical notice-and-comment process

and generally “create[] new law or impose[] new rights or duties.” Child.’s Hosp. of the

King’s Daughters, Inc. v. Azar,

, 619–20 (4th Cir. 2018). The second category

need not.

Second category rules include agencies’ “internal house-keeping measures.” Am.

Hosp. Ass’n v. Bowen,

(D.C. Cir. 1987) (internal quotation omitted).

These rules may be promulgated under

, which authorizes regulations “for

the government of [a] department, the conduct of its employees, the distribution and

performance of its business, and the custody, use, and preservation of its records, papers,

and property.”

The government argues that the temporary Board member regulation falls into the

second category, and so doesn’t grant Salomon-Guillen rights that he can enforce. The

government contends that neither the Administrative Procedure Act nor the Immigration

and Nationality Act grants to Salomon-Guillen a “private cause of action” to enforce the

temporary Board member regulation. And it notes that versions of the regulation were

promulgated in part under § 301 without following notice-and-comment procedures. E.g.,

Board of Immigration Appeals: En Banc Procedures,

, 31889 (June 11,

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1998) (“Compliance with 5 U.S.C. [§] 553 as to notice of proposed rulemaking . . . is not

necessary because this rule relates to internal agency procedure and practice.”).

Salomon-Guillen responds that his argument arises under the Immigration and

Nationality Act, which authorizes those subject to removal to file petitions for review in

the Courts of Appeals and preserves our jurisdiction over legal questions like his procedural

challenge. See

. The Administrative Procedure Act, in his view, is

irrelevant to his ability to challenge Judge Brown’s participation in his appeal before the

Board.

We need not wade into this battle of competing statutes. That’s because Salomon-

Guillen’s challenge is proper even if the Administrative Procedure Act governs. If (as the

government asserts) the regulation at issue rests partly on § 301, it still affects Salomon-

Guillen’s rights, which his challenge to Judge Brown’s appointment would vindicate.

“Where the rights of individuals are affected, it is incumbent upon agencies to

follow their own procedures.” Morton v. Ruiz,

(1974). Thus, “one under

investigation with a view to deportation is legally entitled to insist upon the observance of

rules promulgated by the [Attorney General] pursuant to law.” Bridges v. Wixon,

(1945) (quoting United States ex rel. Bilokumsky v. Tod,

(1923)). Because the rules governing removal proceedings “are designed to protect the

interests of the alien and to afford him due process of law,”

, immigrants subject

to removal proceedings can properly argue that the proceedings against them are

procedurally flawed.

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The Fifth Circuit has applied Bridges to permit a petitioner to challenge the

appointment of temporary Board members. Mboba v. Garland, No. 21-60416,

, at *8 (5th Cir. July 27, 2023); see also Carreon v. Garland,

, 252–

53 (5th Cir. 2023) (rejecting the government’s argument that the appointment regulation

governed internal agency procedures and concluding that a petitioner could challenge the

authority of a temporary Board member as ultra vires). We agree, and therefore proceed

to the merits of Salomon-Guillen’s challenge.

B.

Before engaging with Salomon-Guillen’s argument, we briefly sketch out the

process for appointing temporary Board members.

The Board of Immigration Appeals is a creature of regulation. See Miscellaneous

Amendments to Chapter,

, 9117 (Nov. 26, 1958). Those regulations

provide for the appointment of both permanent and temporary Board members. See

.

The version of § 1003.1 in effect when Salomon-Guillen’s appeal was decided

authorized the Director of the Executive Office for Immigration Review to designate

current and retired immigration judges and Board members “to act as temporary Board

members for terms not to exceed six months.”

(a)(4) (2022). This

provision also allowed the Director, “with the approval of the Deputy Attorney General,”

to “designate one or more senior [Executive Office for Immigration Review] attorneys” to

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“act as temporary Board members for terms not to exceed six months.” 3

Temporary

Board members could fully participate in deciding cases but couldn’t vote in “any matter

decided by the Board en banc” or vote to designate a Board opinion as precedential. Id.;

§ 1003.1(g)(3).

Although the Board and the position of temporary Board member were created by

regulation, the Attorney General by statute has

such authorities and functions under . . . all . . . laws relating to the immigration and naturalization of aliens as were exercised by the Executive Office for Immigration Review, or by the Attorney General with respect to the Executive Office for Immigration Review, on the day before the effective date of the Immigration Reform, Accountability and Security Enhancement Act of 2002.

(g)(1). 4 The Attorney General has broad power to delegate authority when

he “determines [the delegation] to be necessary for carrying out” his responsibilities under

§ 1103. Id. § 1103(g)(2).

3 The Attorney General appoints the Director of the Executive Office for Immigration Review.

(a). Until earlier this year, the regulation at issue in this case allowed the Director to appoint temporary Board members. See

(a)(4) (2022). In practice, however, the Attorney General appointed them himself. Expanding the Size of the Board of Immigration Appeals, 89 Fed. Reg. at 22632. The regulation now reflects that the Attorney General makes the appointments.

(a)(4) (2024). 4 Congress never enacted the Immigration Reform, Accountability and Security Enhancement Act of 2002, which Salomon-Guillen claims matters when considering the validity of Judge Brown’s reappointment. As we explain, his argument is wrong.

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C.

The Attorney General appointed Judge Brown (citing

(g)(1)) for a

six-month term and then reappointed her to three more consecutive terms. Salomon-

Guillen argues that Judge Brown couldn’t continue serving as a temporary Board member

after her first six-month term expired. He relies on the version of the temporary Board

member regulation in effect when his administrative appeal was decided, which stated that

Temporary Appellate Immigration Judges may serve “for terms not to exceed six months.”

(a)(4) (2022).

We reject this argument.

1.

To begin, the regulation in force when Salomon-Guillen appealed to the Board

didn’t apply to the Attorney General. 5 By its express terms, the provision described how

the Executive Office for Immigration Review Director could appoint temporary Board

members.

(a)(4) (2022). As three of our sister circuits have held, nothing

in the regulation’s text limits the Attorney General’s independent statutory power to

delegate his authority under the immigration laws, as he did when he appointed Judge

5 The government raised this argument for the first time in a Rule 28(j) letter. Although we normally don’t consider arguments raised in this posture, we “deviate from this rule in appropriate circumstances.” United States v. Cisson,

(4th Cir. 2022). We do so here, because (1) the Rule 28(j) letter directed our attention to an opinion issued after the government’s brief was filed, (2) the opinion bears directly on the issue before us, (3) Salomon-Guillen responded to the letter and provided his argument on the significance of the case discussed, (4) the factual issues are fully developed, and (5) the legal analysis the letter raises is straightforward. See United States v. Holness,

, 592–93 (4th Cir. 2013).

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Brown under

(g). Bernardo-De La Cruz v. Garland,

, 891–

92 (7th Cir. 2024); Punin v. Garland,

, 128–29 (2d Cir. 2024); Rivera v.

Garland,

(8th Cir. 2024).

Salomon-Guillen notes that the Attorney General cited § 1103(g)(1) when he

appointed Judge Brown. That section grants the Attorney General the powers that “were

exercised by the Executive Office for Immigration Review . . . on the day before the

effective date of the Immigration Reform, Accountability and Security Enhancement Act

of 2002.”

(g)(1). Because that act failed to pass, Salomon-Guillen suggests

that (g)(1) never took effect.

Even if Salomon-Guillen is right about the validity of § 1103(g)(1) (a question we

don’t decide here), his argument still fails. Salomon-Guillen ignores that Congress

separately gave the Attorney General the power to “delegate . . . authority” that the

Attorney General “determines to be necessary for carrying out” his statutory powers.

(g)(2). Salomon-Guillen doesn’t challenge the Attorney General’s authority

over removal cases or the Executive Office for Immigration Review, and we have no

trouble concluding that the Attorney General could delegate that authority to Judge Brown

under § 1103(g)(2). Punin, 108 F.4th at 128–29; Bernardo-De La Cruz,

.

2.

We could end our analysis there. But even if we indulged Salomon-Guillen and

supposed that the Attorney General was bound by

(a)(4), we would reject

Salomon-Guillen’s interpretation of that regulation.

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According to Salomon-Guillen, the word “terms” in the regulation is plural because

it modifies “temporary Board members,” which is itself plural. In his view, we shouldn’t

infer that temporary Board members’ terms are renewable simply based on the use of the

plural word “terms.” The problem for Salomon-Guillen is that the inference he would have

us draw is inconsistent with the broad delegation authority granted to the Attorney General

under § 1103(g)(2).

Salomon-Guillen next points to the separate regulation providing for the

appointment of temporary immigration judges, which expressly allows such judges to be

appointed to “renewable terms not to exceed six months.”

(e)(1) (2021).

The contrast between the two regulations, says Salomon-Guillen, means that the Attorney

General’s ability to appoint temporary Board members isn’t coextensive with his power to

appoint temporary immigration judges.

Applying our “standard tools of interpretation,” that is, the text, structure, history,

and purpose of § 1003.1(a)(4), we do not agree that omission of “renewable” from the

temporary Board member provision makes a difference. Kisor v. Wilkie,

(2019).

Start with the text. The regulation applicable to Salomon-Guillen’s administrative

appeal authorized the appointment of “temporary Board members for terms not to exceed

six months.”

(a)(4) (2022). This language doesn’t restrict the power to

appoint the same person to multiple consecutive terms. As a sister circuit has aptly noted,

“[t]here is no ambiguity in the text of the regulation; it simply does not address the issue

of additional terms.” Rivera,

.

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The structure, too, runs contrary to Salomon-Guillen’s position. Although the

regulation permitted temporary Board members to participate in cases warranting three-

member panels, the time limit for disposing of such cases was 180 days (about six months),

which could be extended.

(e)(8)(i)–(ii) (2022). It would make no sense

for the regulation to allow temporary Board members to participate in cases assigned to

three-member panels but require their service to conclude before those cases might be

decided.

Resisting this view, Salomon-Guillen points to the history of the regulations

authorizing temporary immigration judges and temporary Board members. But that history

supports the government’s reading of the regulations.

The temporary Board member provision was enacted first. In its original form, the

regulation authorized the appointment of temporary Board members “for whatever time

. . . deem[ed] necessary.” Executive Office for Immigration Review; Board of Immigration

Appeals; Designation of Judges,

, 1,660 (May 3, 1988). For reasons not

stated in the record, it was later changed to limit temporary Board members’ terms to six

months. Board of Immigration Appeals: En Banc Procedures, 63 Fed. Reg. at 31890.

Even so, agency practice reveals that the terms of temporary Board members have

been routinely renewed beyond the first six-month term. See, e.g., Press Release, Off. of

Pub. Affs., Attorney General Holder Appoints New Member to the Board of Immigration

Appeals (Aug. 3, 2009), https://www.justice.gov/opa/pr/attorney-general-holder-appoints-

new-member-board-immigration-appeals [https://perma.cc/6LMY-ZTJV] (stating that

Judge John H. Guendelsberger served as a temporary Board member from May 2007 until

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July 2009); Press Release, Exec. Off. for Immigr. Rev., EOIR Swears in Eight Immigration

Judges (Mar. 16, 2016), https://www.justice.gov/eoir/pr/eoir-swears-eight-immigration-

judges [https://perma.cc/HE5S-545N] (stating that Judge Elise Manuel served as a

temporary Board member from 2012 until 2016).

The Attorney General promulgated the temporary immigration judge provision at

issue in 2014. Designation of Temporary Immigration Judges,

, 39956

(July 11, 2014). And it’s true that the text allows for the appointment of eligible individuals

“to act as temporary immigration judges for renewable six-month terms.”

(emphasis added). But we reject the notion that by enacting this regulation, the Attorney

General intended to undo decades of agency practice as to the appointment of temporary

Board members. Indeed, had the Attorney General done so without explanation or

justification, his actions would likely have been arbitrary and capricious. See Bedford

Cnty. Mem’l Hosp. v. Health & Hum. Servs.,

, 1022 (4th Cir. 1985).

In fact, the recent amendment of the temporary Board member provision

underscores that the Attorney General always intended for the terms of temporary Board

members to be renewable. The amendment’s preamble explains that it was the long-held

understanding of the agency that temporary Board members’ terms were renewable and

that the addition of the term “renewable” to the regulation was “in the interest of clarity.”

Expanding the Size of the Board of Immigration Appeals,

, 22631 (Apr.

2, 2024). This clarifying amendment only confirms our view of the relevant history.

We conclude that the version of

(a)(4) in effect when Salomon-

Guillen appealed to the Board didn’t apply to the Attorney General or otherwise limit his

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ability to appoint temporary Board members. And we hold that this regulation authorized

Judge Brown’s reappointment as a temporary Board member in any event. See Carreon,

71 F.4th at 253–54 (rejecting an argument that § 1003.1(a)(4) prevents a temporary Board

member from serving multiple terms); Brito v. Garland,

(7th Cir. 2022)

(same).

It follows that Judge Brown could lawfully participate in the adjudication of

Salomon-Guillen’s case. 6

III.

Next, we consider whether we may review the Board’s denial of Salomon-Guillen’s

application for an inadmissibility waiver. We may not.

An otherwise inadmissible alien can obtain a waiver of inadmissibility under

(h). To obtain such a waiver, the applicant must show “to the satisfaction of

the Attorney General” that “denial of admission would result in extreme hardship to [his]

United States citizen . . . spouse, parent, son, or daughter.”

(h)(1)(B).

6 Salomon-Guillen also challenges the policy implications of our conclusion, complaining that authorizing renewable terms “would make [temporary Board] members far more susceptible to political pressures from within the department.” Pet’r’s Br. at 17. But to the extent that someone might be inclined to curry favor with the Attorney General to secure a temporary Board member appointment, that’s as likely to happen before the first appointment as it is during reappointments. In any event, we must look at the regulation’s “plain meaning,” not matters of policy. BP P.L.C. v. Mayor of Baltimore,

(2021).

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Additionally, the applicant must show that he merits a discretionary waiver. See Boggala

v. Sessions,

(4th Cir. 2017).

We lack jurisdiction to review “any judgment regarding the granting of relief under

[§] 1182(h).”

(a)(2)(B)(i). But we retain jurisdiction to consider

“constitutional claims or questions of law.”

§ 1252(a)(2)(D).

The Board reviewed the immigration judge’s findings de novo and concluded that

Salomon-Guillen failed to show “that his waiver of inadmissibility should be granted as a

matter of discretion” given the equities of the case. J.A. 7. That conclusion is a

discretionary determination over which we lack jurisdiction.

Salomon-Guillen argues that the jurisdictional bar does not matter. He says that the

“extreme hardship” requirement is a statutory eligibility requirement that presents a

reviewable mixed question of law and fact. See Guerrero-Lasprilla v. Barr,

(2020) (“questions of law” include “mixed questions of law and fact” like whether

given facts satisfy a legal standard).

He contends that, if we were to agree with him that he proved extreme hardship,

then the satisfaction of the requirement would be a positive equity that the Board would

need to consider on remand when choosing to exercise its discretion. He relies on language

from a Board opinion suggesting that an extreme hardship finding is a “favorable

discretionary factor to be considered” when weighing the merits of an application for an

inadmissibility waiver. Mendez-Moralez,

(B.I.A. 1996) (en banc).

Salomon-Guillen’s reliance on Mendez-Moralez is misplaced. The language he

cites, in context, shows that the Board need not make an extreme hardship finding to deny

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an inadmissibility waiver application on discretionary grounds. That is, while extreme

hardship may be a “favorable” factor, “an application for discretionary relief, including a

waiver under [

(h)], may be denied in the exercise of discretion without

express rulings on the question of statutory eligibility.” Id.; see Patel v. Garland,

(2022) (explaining that an immigration judge “need not address eligibility at all”

if he or she would still deny a request for relief as a matter of discretion).

Salomon-Guillen would have us direct the Board to make an express ruling on

extreme hardship in every case, since failing to do so could impact the equities of a

discretionary denial. This reading of Mendez-Moralez proves too much and renders hollow

the decision’s own holding that express findings on extreme hardship are not necessary.

See Henry v. Mukasey,

(2d Cir. 2008) (rejecting the argument that the

Board was “required to determine whether . . . removal would create an extreme

hardship . . . in order to weigh all the relevant equities”).

Whether assessing extreme hardship or weighing the equities of removal to make a

discretionary decision, the Board considers the same record. In this light, the only reason

that an express extreme hardship finding could matter as to the discretionary analysis is

that it bears the label “extreme.” At bottom, then, Salomon-Guillen’s argument goes to the

weight that the Board gave to his evidence, which “presents a garden-variety abuse of

discretion argument . . . that does not amount to a legal question.” Cobos-Gonzales v. U.S.

Att’y Gen.,

, 774–75 (11th Cir. 2013).

Salomon-Guillen hasn’t raised a “constitutional claim[] or question[] of law.”

(a)(2)(D). He directly challenges the Board’s discretionary decision not to

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grant him an inadmissibility waiver based on the equities of his case. Because the Board

denied Salomon-Guillen’s application as a “matter of grace,” we have no power to review

that decision. Patel,

; see Wilkinson v. Garland,

, 225 n.4

(2024) (explaining that, since cancellation of removal is discretionary, an immigration

judge’s ultimate decision on cancellation “is not reviewable as a question of law”).

IV.

For these reasons, we deny the petition for review as to Salomon-Guillen’s

challenge to the procedural validity of the Board’s action and dismiss the rest of the

petition.

PETITION DENIED IN PART AND DISMISSED IN PART

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