Jesus Gabriel Navarro Guadarrama v. U.S. Attorney General

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
Nos. 22-11065 & 22-12599
____________________
JESUS GABRIEL NAVARRO GUADARRAMA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
Agency Nos. A209-879-709 & A209-879-709
____________________
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2 Opinion of the Court 22-11065
Before NEWSOM , BRANCH , and L UCK , Circuit Judges.
NEWSOM , Circuit Judge:
Jesus Gabriel Navarro Guadarrama, a native and citizen of
Mexico, petitions for our review of the Board of Immigration
Appeals’ dismissal of the appeal of his application for adjustment of
status and the Board’s subsequent denial of his motion to
reconsider. Navarro Guadarrama contends that the Board erred by
applying the incorrect legal standard—as articulated in its own
precedent—to the discretionary consideration of his adjustment-of-
status application. After careful consideration of the parties’
arguments and with the benefit of oral argument, we hold that we
have jurisdiction to consider Navarro Guadarrama’s petitions for
review but that the Board did not apply the wrong legal standard.
Accordingly, we deny the petitions.
I
A
Navarro Guadarrama entered the United States in 1995 and
was thereafter convicted of several crimes. As relevant here, he
was convicted of violating Florida state law by (1) possessing 20
grams or less of marijuana in 2005, (2) possessing 20 grams or less
of marijuana and drug paraphernalia in 2010, and (3) contributing
to the delinquency of a child in 2018.
The government initiated removal proceedings against
Navarro Guadarrama on various grounds, including that he had
been convicted of a controlled-substance offense under 8 U.S.C.
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22-11065 Opinion of the Court 3
§ 1182(a). Navarro Guadarrama applied for adjustment of status
pursuant to 8 U.S.C. § 1255(i), which permits an alien who is
unlawfully in the United States to obtain relief from removal if he
meets specified requirements. In conjunction with his adjustment
application, Navarro Guadarrama sought a waiver of
inadmissibility under 8 U.S.C. § 1182(h), which allows the Attorney
General to waive inadmissibility in certain circumstances. Navarro
Guadarrama’s marijuana-possession convictions required him to
obtain the waiver.
An immigration judge found that because Navarro
Guadarrama had two marijuana-possession convictions, he was
statutorily ineligible for a § 1182(h) waiver, which is available, as
relevant here, only when an alien has a single offense for possession
of 30 grams or less of marijuana. Navarro Guadarrama sought
review of the IJ’s decision before the Board, which dismissed his
appeal and held that his two marijuana-possession convictions
rendered him ineligible for a waiver.
B
After a Florida state court vacated his 2005 marijuana-
possession conviction, Navarro Guadarrama moved to reopen his
removal proceedings. The Board granted the motion and
remanded the case to the IJ. Following a hearing, the IJ issued a
written decision denying Navarro Guadarrama’s application for a
§ 1182(h) waiver and for adjustment of status under § 1255(i).
Although the IJ found that Navarro Guadarrama was
statutorily eligible for a § 1182(h) waiver and that he had satisfied
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4 Opinion of the Court 22-11065
the threshold requirements for adjustment of status, she concluded
that he hadn’t established extreme hardship as required to obtain
the waiver. The IJ further found that even if Navarro Guadarrama
had established hardship, he wasn’t entitled to discretionary relief.
The IJ afforded “favorable weight” to Navarro Guadarrama’s
“strong family ties within the United States,” the significant length
of time he had lived in the country, and his work history. The IJ
explained, though, that Navarro Guadarrama had a number of
adverse factors, including his criminal record and evidence of his
bad character. The IJ emphasized his arrest for sexual battery, his
conviction for contributing to the delinquency of a child, his
multiple convictions for possession of marijuana and drug
paraphernalia, the five years he spent as a fugitive in Georgia, and
his failure to file tax returns. After “considering the totality of the
circumstances,” the IJ determined that Navarro Guadarrama’s
adverse factors “greatly outweigh[ed]” his positive equities and,
accordingly, that he had failed to demonstrate that he warranted a
favorable exercise of discretion necessary to obtain a waiver. The
IJ incorporated her discretion analysis into Navarro Guadarrama’s
adjustment-of-status evaluation and thus also denied the
adjustment.
Navarro Guadarrama sought review of the IJ’s decision
before the Board, which dismissed his appeal. The Board found
that Navarro Guadarrama’s positive equities were “substantial,”
including “his lengthy residence in the United States beginning at a
young age; his close family ties . . . ; his employment history; and
his community ties . . . .” Ultimately, however, the Board agreed
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22-11065 Opinion of the Court 5
with the IJ’s determination that Navarro Guadarrama didn’t
warrant a favorable exercise of discretion. Summarizing Navarro
Guadarrama’s adverse factors, including his criminal history, tax
evasion, and living as a fugitive, the Board concluded:
We agree with the Immigration Judge that the
negative factors in this case outweigh the
respondent’s positive equities. Even considering the
positive factors and the potential hardships of the
respondent’s removal on himself and his family, we
conclude that the respondent failed to carry his
burden of proving that he merits adjustment of status
in the exercise of discretion. We conclude the
respondent is undesirable as a permanent resident
and a grant of relief is not in the best interest of the
United States. See Matter of Mendez-Morale[z], 21 I&N
Dec. 296, 299-300 (BIA 1996).
Because the Board determined that Navarro Guadarrama didn’t
merit discretionary relief, it didn’t reach the questions whether he
needed a waiver or whether he met his burden regarding hardship.
Navarro Guadarrama timely petitioned this Court to review the
Board’s dismissal of his appeal.
C
Not long thereafter, we held in Said v. U.S. Attorney General,
28 F.4th 1328 (11th Cir. 2022), that Florida’s definition of marijuana
is broader than (and thus not a categorical match for) the federal
definition. In light of Said, Navarro Guadarrama moved the Board
to reconsider its decision in his removal proceedings. He argued
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6 Opinion of the Court 22-11065
that he no longer needed a § 1182(h) waiver because, under Said,
his 2010 state-law marijuana-possession conviction didn’t count as
a controlled-substance offense under § 1182 that would render him
inadmissible. In his motion, Navarro Guadarrama argued that the
Board erred by applying the standard articulated in Matter of
Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996), which applies to
aliens who require waivers, rather than the standard from Matter
of Arai, 31 I&N Dec. 494 (BIA 1970), which applies to those who
don’t. Navarro Guadarrama contended that the Board conflated
the standards from those two decisions and that the outcome of
his proceedings would have been different had the proper standard
been applied—because, he argued, Arai calls for a presumption that
the favorable exercise of discretion is appropriate for adjustment of
status, whereas Mendez-Moralez requires no such presumption.
The Board denied Navarro Guadarrama’s motion to
reconsider. It reaffirmed its conclusion that Navarro Guadarrama
didn’t warrant discretionary relief. The Board further explained
that it didn’t err by citing Mendez-Moralez:
In citing to Matter of Mendez, the Board did not
subject the respondent to a higher discretionary
standard, as [Navarro Guadarrama] argues in his
motion. Rather, the Board cited this case for the
overarching proposition that in evaluating whether a
respondent warrants a favorable exercise of
discretion, an adjudicator must ‘balance the adverse
factors evidencing [a noncitizen’s] undesirability as a
permanent resident with the social and humane
considerations presented on his behalf to determine
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22-11065 Opinion of the Court 7
whether a grant of relief in the exercise of discretion
appears to be in the best interest of this country.’
Navarro Guadarrama timely petitioned this Court for
review of the Board’s denial of his motion to reconsider. We
consolidated that petition with his pending petition for review of
the Board’s dismissal of his appeal.
II
As a threshold matter, the government asserts that we lack
jurisdiction over Navarro Guadarrama’s petition under 8 U.S.C.
§ 1252(a)(2). That statute includes a jurisdiction-stripping
provision that states, in relevant part, that “[n]otwithstanding any
other provision of law . . . no court shall have jurisdiction to review
. . . any judgment regarding the granting of relief under section . . .
1255 . . . of this title.” Id. § 1252(a)(2)(B)(i). Another provision of
the same statute, though, expressly preserves our jurisdiction over
“questions of law”: “Nothing in subparagraph (B) . . . which limits
or eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised upon a
petition for review . . . .” Id. § 1252(a)(2)(D). But to be clear, the
latter provision preserves our jurisdiction only over genuine
questions of law and colorable constitutional claims—a petitioner
may not “dress up a claim . . . to invoke our jurisdiction.” Patel v.
U.S. Att’y Gen., 971 F.3d 1258, 1272 (11th Cir. 2020) (en banc), aff’d
sub nom. Patel v. Garland, 596 U.S. 328 (2022).
The government concedes, as it must, that “[a]n argument
that the agency applied the wrong legal standard in making a
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8 Opinion of the Court 22-11065
determination constitutes a legal question” over which we have
jurisdiction under § 1252(a)(2)(D). Jeune v. U.S. Att’y Gen., 810 F.3d
792, 799 (11th Cir. 2016); see also Ruiz v. U.S. Att’y Gen., 73 F.4th
852, 856 (11th Cir. 2023) (holding that “‘questions of law’ in
§ 1252(a)(2)(D) should be read to ‘include[ ] the application of a
legal standard to undisputed or established facts’” (quoting
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020))); Farah v. U.S.
Att’y Gen., 12 F.4th 1312, 1325 (11th Cir. 2021) (“[W]hether the
Board applied the correct legal standard is a question of law.”). It
contends, though, that to confer jurisdiction the petitioner’s
argument “must have some possible validity,” Arias v. U.S. Att’y
Gen., 482 F.3d 1281, 1284 n.2 (11th Cir. 2007), and it insists that
Navarro Guadarrama’s argument doesn’t pass muster because he’s
really just challenging the IJ’s and Board’s discretionary weighing
of evidence. That sort of contention, the government says, is a
“garden-variety abuse of discretion argument” over which we lack
jurisdiction. Farah, 12 F.4th at 1326.
We disagree. Navarro Guadarrama isn’t challenging the
Board’s granular, case-by-case balancing of the positive and
negative equities in his particular case. Rather, he contends that
the Board applied the wrong framework altogether—Mendez-
Moralez rather than Arai. Navarro Guadarrama asks us to hold that
the Board applied the wrong legal standard in deciding his case.
That is precisely the sort of question of law over which we have
repeatedly held we have jurisdiction.
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22-11065 Opinion of the Court 9
III
On, then, to the merits. The question, again, is whether the
Board applied the wrong legal standard in rejecting Navarro
Guadarrama’s claim. And Navarro Guadarrama’s contention,
again, is that the Board invoked its decision in Mendez-Moralez,
which applies to aliens who need waivers of inadmissibility, rather
than Arai, which applies to those who don’t.
Let’s review, beginning with Arai. There, the Board
reviewed an alien’s application for adjustment of status under
§ 1255. See 13 I&N Dec. at 494. The applicant didn’t require a
§ 1182(h) waiver and had no adverse factors. Id. at 495. The Board
held that “[w]here adverse factors are present in a given application,
it may be necessary for the applicant to offset these by a showing
of unusual or even outstanding equities.” Id. at 496. “[F]avorable
factors such as family ties, hardship, length of residence in the
United States, etc.,” the Board said, “will be considered as
countervailing factors meriting favorable exercise of administrative
discretion.” Id. The Board further explained that “[i]n the absence
of adverse factors, adjustment will ordinarily be granted, still as a
matter of discretion.” Id.
In Mendez-Moralez, an alien applying for adjustment of status
needed a waiver of inadmissibility due to his conviction for a crime
involving moral turpitude. See 21 I&N Dec. at 297. There, the
Board explained that for cases involving waivers, “the Immigration
Judge must balance the adverse factors evidencing an alien’s
undesirability as a permanent resident with the social and humane
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10 Opinion of the Court 22-11065
considerations presented on his behalf to determine whether the
grant of relief in the exercise of discretion appears to be in the best
interests of this country.” Id. at 300. Notably for present purposes,
the Board explained that the approach outlined in Arai “has no
application to relief under section [1182(h)] of the Act,” where a
“waiver of inadmissibility . . . necessarily involves at least one
adverse consideration, specifically the criminal conviction or
activity constituting the ground of exclusion sought to be waived.”
Id. The Board thus held that in situations requiring a waiver, “there
can be no presumption that relief is warranted in the exercise of
discretion.” Id.
Navarro Guadarrama is quite right that Mendez-Moralez and
Arai indicate that different legal standards apply in different
circumstances. In a case like his, however—where all agree that
significant adverse factors are present—the Mendez-Moralez and
Arai analyses effectively merge. In Arai, the Board held that “[i]n
the absence of adverse factors, adjustment will ordinarily be granted,
still as a matter of discretion.” 13 I&N Dec. at 496 (emphasis
added). That’s not Navarro Guadarrama’s case. Navarro
Guadarrama was arrested for sexual battery, was convicted of
contributing to the delinquency of a child and possessing
marijuana, lived for five years as a fugitive in Georgia, and failed to
file tax returns. Therefore, although under Arai adjustment of
status will “ordinarily” be granted “[i]n the absence of adverse
factors,” that presumption is inapplicable to Navarro
Guadarrama’s case.
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22-11065 Opinion of the Court 11
To be clear, the mere fact that in dismissing Navarro
Guadarrama’s appeal the Board cited Mendez-Moralez rather than
Arai does not conclusively demonstrate that it applied the wrong
standard. In its decision on Navarro Guadarrama’s motion to
reconsider, the Board explained that it cited Mendez-Moralez “for
the overarching proposition” that the IJ must balance adverse
factors with “the social and humane considerations presented on [a
noncitizen’s] behalf” when evaluating whether he warrants a
favorable exercise of discretion. And that “overarching
proposition” is comparable to Arai’s suggestion that adverse factors
may offset “favorable factors such as family ties, hardship, length
of residence in the United States, etc.” 13 I&N Dec. at 496.
Accordingly, even if the Board cited the “wrong” case, there’s no
indication that, in substance, it applied the wrong standard. Indeed,
at oral argument Navarro Guadarrama’s lawyer candidly
acknowledged that he would have a “big problem” if the Board had
cited Arai rather than Mendez-Moralez—even if its substantive
analysis had been substantially the same. See Oral Arg. at 9:34–9:42.
That seems to us exactly right—absent the citation to Mendez-
Moralez, there’s nothing to suggest that the Board applied the
wrong standard.
* * *
Nothing in the Board’s analysis indicates that it applied a
substantially incorrect standard in determining whether Navarro
Guadarrama warranted discretionary relief. Accordingly, we
DENY the petitions for review.
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