Jesus Cobos-Gonzalez v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11313
Non-Argument Calendar
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Agency No. A077-883-422
JESUS COBOS-GONZALEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 8, 2013)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Jesus Cobos-Gonzalez (“Cobos”), a citizen of Mexico, seeks review of the
order of the Board of Immigration Appeals (“BIA”) affirming the Immigration
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Judge’s (“IJ”) denial of his applications for a waiver of inadmissibility and an
adjustment of status. He argues that: (1) 8 C.F.R. § 1212.7(d), which guides the IJ
and BIA’s use of discretion in granting or denying waivers of inadmissibility, is
unconstitutional as applied to him; (2) the IJ and BIA violated the doctrine of
separation of powers by conflating 8 C.F.R. § 1212.7(d)’s definition of “violent or
dangerous” crimes with the standard for a “crime of violence” in 8 U.S.C. §
1101(a)(43)(F); and (3) the IJ and BIA erred as a matter of law in weighing the
hardship factors mitigating in favor of relief from removal. The government
contends that we lack jurisdiction to review Cobos’s petition. After thorough
review, we deny the petition in part and dismiss it in part.
In 2008, Cobos was convicted of false imprisonment, in violation of Fla.
Stat. § 787.02, and aggravated assault with a firearm, in violation of Fla. Stat. §
784.021. He pled guilty to both offenses and was sentenced to three years’
imprisonment. The police report indicates that Cobos forced his victim, who was a
friend, into a car at gunpoint, then threatened him and forced him to drive to
another location. As a result of these crimes, the Department of Homeland
Security issued Cobos a Notice to Appear for removal proceedings before an IJ.
The IJ declared Cobos removable pursuant to the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), as a legal permanent resident convicted of
an aggravated felony; and pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as a legal
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permanent resident convicted of a crime of violence for which the statutory term of
imprisonment was at least one year. The IJ denied Cobos a waiver of
inadmissibility, pursuant to 8 U.S.C. § 1182(h), after considering the heightened
hardship requirements needed to grant a discretionary waiver under 8 C.F.R. §
1212.7(d), and denied Cobos an adjustment of status. The BIA affirmed.
We review only the decision of the BIA, except to the extent that the BIA
expressly adopted the opinion of the IJ. Kazemzadeh v. U.S. Att’y Gen., 577 F.3d
1341, 1350 (11th Cir. 2009). Because the BIA in this case did not expressly adopt
the IJ’s decision, we review only the BIA’s decision. See id. We determine our
subject matter jurisdiction de novo. Alvarado v. U.S. Att’y Gen., 610 F.3d 1311,
1314 (11th Cir. 2010).
We do not have jurisdiction to review denials of discretionary relief,
including the Attorney General’s decision to grant or deny a waiver under 8 U.S.C.
§ 1182(h), and “any other decision or action of the Attorney General . . . the
authority for which is specified under this title to be in [his] discretion.” 8 U.S.C.
§ 1182(h)(2); 8 U.S.C. § 1252(a)(2)(B)(i)-(ii). We also lack jurisdiction to review
removal orders involving aliens who are convicted of crimes involving moral
turpitude (“CIMTs”) or aggravated felonies. 8 U.S.C. § 1252(a)(2)(C); 8 U.S.C. §
1227 (a)(2)(A), (C). However, these jurisdiction-stripping provisions do not
preclude us from reviewing constitutional claims or questions of law. 8 U.S.C. §
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1252(a)(2)(D). “Where a constitutional claim has no merit, however, we do not
have jurisdiction.” Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1333
(11th Cir. 2003); see Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1197
(11th Cir. 2008) (requiring an alien to raise a “substantial,” meaning nonfrivolous,
constitutional claim); Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 n.2 (11th Cir.
2007) (describing a “colorable” constitutional claim as one with “some possible
validity” (quotation omitted)).
Arguments that the agency applied incorrect legal standards present legal
questions under the meaning of 8 U.S.C. § 1252(a)(2)(D). See Alvarez Acosta,
524 F.3d at 1197. “Questions of law” also include challenges to the “application
of an undisputed fact pattern to a legal standard.” Jean-Pierre v. U.S. Att’y Gen.,
500 F.3d 1315, 1322 (11th Cir. 2007). An argument that the IJ or BIA failed to
properly weigh an alien’s factual scenario presents a “garden-variety abuse of
discretion argument -- which can be made by virtually every alien subject to a final
removal order -- [that] does not amount to a legal question.” Alvarez Acosta, 524
F.3d at 1196-97. Similarly, an alien’s argument that the IJ erred in balancing
positive and negative factors does not raise a question of law. See Garcia v. Att’y
Gen., 329 F.3d 1217, 1223 (11th Cir. 2003). We do not retain jurisdiction “over
abuse of discretion claims merely couched in constitutional language.” Arias, 482
F.3d at 1284.
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Aliens who commit CIMTs are inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I).
The Attorney General may, in his discretion, and “pursuant to such terms,
conditions and procedures as he may by regulation prescribe,” waive
inadmissibility of the CIMT if, among other requirements, “the alien’s denial of
admission would result in extreme hardship” to the alien’s U.S. citizen spouse or
child. 8 U.S.C. § 1182(h)(1)-(2).
By regulation, the Attorney General will ordinarily
not favorably exercise discretion under [8 U.S.C. § 1182(h)(2)] to consent to
an application . . . [for] adjustment of status, with respect to immigrant aliens
who are inadmissible under section [1182](a)(2) of the Act in cases
involving violent or dangerous crimes, except in extraordinary
circumstances, such as . . . cases in which an alien clearly demonstrates that
the denial of the application for adjustment of status . . . would result in
exceptional and unusual hardship. Moreover, depending on the gravity of
the alien’s underlying criminal offense, a showing of extraordinary
circumstances might still be insufficient to warrant a favorable exercise of
discretion . . . .
8 C.F.R. § 1212.7(d). “[A]n application for discretionary relief, including a waiver
under section [1182](h), may be denied in the exercise of discretion without
express rulings on the question of statutory eligibility.” In re Mendez-Moralez, 21
I. & N. Dec. 296, 301 (B.I.A. 1996).
First, we lack jurisdiction over Cobos’s claim that the IJ and BIA
unconstitutionally applied 8 C.F.R. § 1212.7(d) by conflating the “violent or
dangerous” standard in that regulation with the “crimes of violence” standard in 8
U.S.C. § 1101(a)(43)(F), because his argument is simply not colorable given the
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plain language of the rule. But even assuming this interpretation would constitute
constitutional error, the BIA’s order -- which is the order we must review,
Kazemzadeh, 577 F.3d at 1350 -- is in fact bereft of any reference to the term
“crime of violence.” The BIA recounted the specific factual circumstances of
Cobos’s convictions -- and expressly considered Cobos’s assertions that he was
intoxicated and did not actually intend to kill or injure the victim -- and concluded
that the crimes were “violent or dangerous” under 8 C.F.R. § 1212.7(d), or indeed
under any reasonable standard. Thus, Cobos raises no colorable constitutional
claim that the BIA erred by concluding that Cobos’s crimes were of the “violent or
dangerous” variety, and we lack jurisdiction to consider it.
We also lack jurisdiction over Cobos’s arguments relating to how the IJ and
BIA evaluated the hardship evidence. Although Cobos says that the IJ and BIA
erred as a matter of law, his contentions amount to an argument that the IJ and BIA
abused their discretion. The BIA considered the hardships Cobos would face away
from his family in Mexico, his family’s hardship in the United States with and
without Cobos, his family’s living situation and his children’s medical needs, and
his son’s behavioral issues; the ten allegedly overlooked factors identified by
Cobos on appeal are of a similar nature. Cobos’s argument against the BIA’s
ultimate conclusion that the serious hardships facing the Cobos family were not
exceptional and extremely unusual is essentially an argument against the way in
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which the BIA weighed the evidence. See Alvarez Acosta, 524 F.3d at 1196-97.
As a result, we lack jurisdiction to address the BIA’s determination that Cobos did
not show exceptional and extremely unusual hardship so as to merit a favorable
exercise of discretion.
However, we do retain jurisdiction over Cobos’s singular colorable
constitutional claim: that 8 C.F.R. § 1212.7(d), as applied to him, is
unconstitutional because it modifies the showing necessary to be statutorily
eligible for a waiver under 8 U.S.C. § 1182(h). Regardless, the claim is without
merit. Here, 8 C.F.R. § 1212.7(d), as applied, was not contrary to the statutory
eligibility standard for the § 1182(h) waiver because the BIA did not apply the
regulation to modify Cobos’s statutory eligibility for a waiver or categorically bar
him from receiving one. Under 8 U.S.C. § 1182(h), the Attorney General may use
his discretion to waive inadmissibility only if certain circumstances, including
extreme hardship to a family member, are present. The statute does not guarantee
that an alien who statutorily qualifies for a waiver of inadmissibility will receive
one, and in fact specifically contemplates that the grant of a waiver is still a
discretionary determination by the Attorney General. As for 8 C.F.R. § 1212.7(d),
it was not applied so as to categorically bar Cobos from a § 1182(h) waiver of
inadmissibility in violation of the separation of powers doctrine. The BIA did not
find Cobos ineligible for a 8 U.S.C. § 1182(h)(2) waiver, only that he was not
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entitled to receive one in the exercise of its discretion. Accordingly, the regulation
is not unconstitutional as applied to Cobos, and we deny his petition as to this
claim.
DENY PETITION IN PART AND DISMISS IN PART.
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