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

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[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 LUCK, 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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§ 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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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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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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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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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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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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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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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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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.