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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 14-12850; 14-15825
Non-Argument Calendar
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Agency No. A029-348-440
WILLIAM TALAVERA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petitions for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 5, 2015)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
William Talavera, a native and citizen of Nicaragua, petitions for review of
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the denial of his application for an adjustment of status under the Nicaraguan
Adjustment and Central American Relief Act of 1997, Pub. L. No. 105–100, 111
Stat. 2160 (1997), and the denial of his motion to reopen. We deny the petition.
In 1988, Talavera entered the United States without inspection. Talavera
applied for an adjustment of status under the Nicaraguan Relief Act, but he
abandoned the application. In 2009, the Department notified Talavera that he was
removable for having entered the United States without admission or parole. See 8
U.S.C. § 1182(a)(6)(A)(i). The Department also charged Talavera as removable for
being convicted in a Florida court of felony battery, see Fla. Stat. § 784.041, a
crime of moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Talavera conceded
removability on both charges and renewed his application to adjust his status.
During his removal hearing, Talavera testified regarding his ten arrests for
offenses involving alcohol and violence and his convictions for reckless driving,
driving under the influence, disorderly intoxication, and resisting a police officer.
Talavera also testified that he pleaded guilty to felony battery based on his
involvement in a brawl during which he and his brothers beat and kicked a man,
damaging several of his teeth, and used a machete that severed a tendon in the
man’s hand, which required three surgeries to repair. In his written closing
argument, Talavera conceded that felony battery was a “violent or dangerous
crime[]” and that he could not obtain a waiver of inadmissibility in the absence of
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evidence that his removal would result in an “exceptional and extremely unusual
hardship.” See 8 C.F.R. § 1212.7(d).
An immigration judge denied Talavera’s application to adjust his status and
entered an order of removal. The immigration judge found that Talavera “conceded
that he ha[d] been convicted of a crime involving moral turpitude” and failed to
establish that his removal would result in an exceptional and extremely unusual
hardship to warrant a discretionary waiver of inadmissibility. See id. The
immigration judge also found that Talavera did not otherwise merit relief as a
matter of discretion because his favorable attributes did not outweigh his
“extensive criminal history” and the “seriousness of [his] conviction for felony
battery.” See 8 U.S.C. § 1182(h).
The Board dismissed Talavera’s appeal. The Board refused to “disturb” that
classification of Talavera’s offense because he had conceded that the offense
“satisf[ied] the violent or dangerous definition,” and in the alternative, the Board
“independently conclude[d] that the offense so qualifies” based on the factual
findings of the immigration judge. Because removal would cause Talavera, his
wife, and his mother “the type of harms typically associated with deportation,” the
Board determined that Talavera could not “satisfy the exceptional and extremely
unusual hardship standard . . . [and did] not merit a favorable exercise of discretion
with respect to his waiver application.”
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Talavera filed a motion to reopen his case, which the Board denied.
Talavera’s arguments that his prior conviction might no longer qualify as a crime
of moral turpitude due to a change in the law lacked merit, the Board ruled,
because he had conceded he was inadmissible and he failed to establish how recent
decisions affected his case. The Board also ruled that the evidence regarding the
birth of Talavera’s child, the anxiety suffered by his wife and mother while
awaiting his removal, and the inferior medical and mental health services in
Nicaragua failed to qualify as an exceptional and extremely unusual hardship to
warrant a waiver of inadmissibility.
We lack jurisdiction to review the denial of discretionary relief, including
the denial of a waiver of inadmissibility, 8 U.S.C. §§ 1182(h)(2), 1252(a)(2)(B),
and we lack jurisdiction to review an order of removal based on the commission of
a crime of moral turpitude, id. §§ 1227(a)(2)(A)(i), 1252(a)(2)(C). But we have
jurisdiction to review constitutional issues or questions of law. Id. § 1252(a)(2)(D).
“[A]bsent a cognizable excuse or exception, we [also] lack jurisdiction to consider
claims that have not been raised before the [Board].” Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (internal quotation marks and
citation omitted).
Two standards govern our review of Talavera’s petition. We review the
denial of a motion to reopen for an abuse of discretion. Zhang v. U.S. Att’y Gen.,
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572 F.3d 1316, 1319 (11th Cir. 2009). “This review is limited to determining
whether the [Board] exercised its discretion in an arbitrary or capricious manner.”
Id. We review de novo the conclusions of law by the Board. Kazemzadeh v. U.S.
Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009).
Talavera argues that the Attorney General exceeded his statutory authority
by issuing regulation 1212.7(d) because it imposed a heightened hardship standard
to be eligible for an adjustment of status, but this argument fails. Regulation
1212.7(d) did not affect Talavera’s statutory eligibility for a discretionary waiver.
See 8 U.S.C. § 1182(h). “[T]he Attorney General, in his discretion, and pursuant to
such terms, conditions and procedures as he may by regulations prescribe, [can]
consent[] to . . . [an] adjustment of status,” id. § 1182(h)(2), and could issue
regulation 1212.7(d) to provide guidance about how to weigh an alien’s criminal
offense against any hardships caused by his removal. Consistent with the
regulation, the Board balanced the seriousness of Talavera’s misconduct with the
resulting hardships to determine whether he merited a waiver of inadmissibility.
Talavera also argues that the Board endorsed the use of an elements-based
test to classify his prior conviction as a violent and dangerous felony and engaged
in impermissible fact-finding regarding the crime, but Talavarez misinterprets the
decision of the Board. The Board approved of “the immigration judge’s decision to
treat the conviction in [a] manner” consistent with Talavera’s admission that his
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prior conviction qualified as a violent or dangerous felony. And the Board relied
the “factual findings [of the immigration judge] regarding the incident . . . to
independently conclude that [Talavera’s] offense so qualifie[d].”
The Board did not abuse its discretion when it denied Talavera’s motion to
reopen. We cannot classify as arbitrary and capricious the finding that the
hardships faced by Talavera’s family were not exceptional and extremely unusual
when the Board gave reasoned consideration to Talavera’s new evidence. See
Zhang, 572 F.3d at 1319. Talavera argues that the Board required that a health
issue be “permanent” to satisfy the hardship standard, but the Board considered the
permanence of Talavera’s wife’s and mother’s impairments to determine whether
they could obtain adequate medical care in Nicaragua. Talavera also argues that the
“Board erred by holding [him] to the . . . concession by his trial counsel that his
conviction for felony battery constitutes a crime involving moral turpitude,” but
Talavera failed to exhaust this argument before the Board. See Amaya-Artunduaga,
463 F.3d at 1250. Even if we were to assume that Talavera could establish grounds
for allowing him to withdraw his concession, he fails to argue that the Board
abused its discretion by refusing to reopen his case on that basis.
We DENY Talavera’s petition.
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