Jose Garcia Gallardo v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13364
Non-Argument Calendar
____________________
JOSE PABLO GARCIA GALLARDO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-732-760
____________________
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2 Opinion of the Court 22-13364
Before J ORDAN , BRANCH, and ANDERSON , Circuit Judges.
PER CURIAM:
Jose Pablo Garcia Gallardo (“Garcia Gallardo”) appeals the
Board of Immigration Appeals’ (“BIA”) order affirming the Immi-
gration Judge’s (“IJ”) decision not to adjudicate his application for
a waiver of inadmissibility that he submitted with his application
for a U visa as a derivative of his wife’s application. He argues: that
the BIA erred in finding that the IJ correctly determined that he did
not have to adjudicate the waiver request; that the BIA erred by
failing to remand his case to the IJ after he filed his derivative U visa
application for the first time before the BIA; and that the IJ and BIA
abused their discretion by requiring him to show prima facie eligi-
bility for a U visa in conjunction with his application for a waiver
of inadmissibility without giving him an opportunity to do so.
When the BIA issues its own decision, we only review that
decision, except to the extent the BIA expressly adopts the IJ’s opin-
ion or reasoning. Murugan v. U.S. Att’y Gen., 10 F.4th 1185, 1192
(11th Cir. 2021). We review de novo questions of law and our sub-
ject matter jurisdiction. Ponce Flores v. U.S. Att’y Gen., 64 F.4th 1208,
1217 (11th Cir. 2023). We review issues concerning statutory in-
terpretation of the Immigration and Nationality Act (“INA”) de
novo, deferring to the BIA’s interpretation under Chevron U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), if the statute
is ambiguous or silent and the BIA’s interpretation is reasonable.
Meridor v. U.S. Att’y Gen., 891 F.3d 1302, 1305-06 (11th Cir. 2018). If
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22-13364 Opinion of the Court 3
the BIA has issued a single judge order that relies on its own prec-
edent or ours, we will afford Chevron deference if applicable. Hin-
capie-Zapata v. U.S. Att’y Gen., 977 F.3d 1197, 1200 (11th Cir. 2020).
When a petitioner files a motion to remand to the BIA and
“seeks to introduce evidence that has not previously been pre-
sented, it is generally treated as a motion to reopen.” Chacku v. U.S.
Att’y Gen., 555 F.3d 1281, 1286 (11th Cir. 2008). We will then re-
view the BIA’s denial of that motion to reopen for an abuse of dis-
cretion. Id.
We give significant discretion to the BIA to deny a motion
to reopen, “even where the movant has made a prima facie case that
reopening would otherwise be appropriate.” Bing Quan Lin v. U.S.
Att’y Gen., 881 F.3d 860, 873 (11th Cir. 2018). “Reopening may be
warranted only where the movant presents evidence that is new,
material, and unavailable when the removal order was entered.”
Id. at 872. The BIA may deny a motion to reopen where the mo-
vant fails to produce evidence that was material and previously un-
available. Id. at 874.
Our jurisdiction to review orders of removal is limited by
the INA, which provides that no court has jurisdiction to review
any final order of removal against a non-citizen who is removable
for committing a controlled substance offense. INA § 242(a)(2)(C),
8 U.S.C. § 1252(a)(2)(C). We also lack jurisdiction to review discre-
tionary decisions of the Attorney General or Secretary of the De-
partment of Homeland Security. INA 242(a)(2)(B)(ii), 8 U.S.C. §
1252(a)(2)(B)(ii). Notwithstanding these jurisdictional bars, we
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4 Opinion of the Court 22-13364
retain jurisdiction to consider constitutional claims and questions
of law. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). We have
stated that we have jurisdiction under INA § 242(a)(2)(D), 8 U.S.C.
§ 1252(a)(2)(D), to review questions of law that are “the application
of a legal standard to undisputed or established facts.” Patel v. U.S.
Att’y Gen., 971 F.3d 1258, 1275 (11th Cir. 2020) (en banc) (quotation
marks omitted). However, abuse of discretion arguments cloaked
in constitutional or legal language, as well as challenges to the evi-
dentiary basis for a factual finding, are not sufficient to invoke our
jurisdiction. Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 (11th Cir.
2007).
An otherwise inadmissible foreign national “who is in pos-
session of appropriate documents or is granted a waiver thereof
and is seeking admission, may be admitted into the United States
temporarily as a nonimmigrant in the discretion of the Attorney
General.” INA § 212(d)(3)(A), 8 U.S.C. § 1182(d)(3)(A). In discuss-
ing this statute, we have explained that “[t]he ‘Attorney General’
includes his delegates, including, as is relevant here, IJs under cer-
tain circumstances.” Meridor, 891 F.3d at 1305-06. Further, “the
Secretary of Homeland Security, in the [Secretary’s] discretion,
may waive the application of subsection (a),” which describes
noncitizens who are inadmissible to the United States, for nonciti-
zens applying for a U visa “if the Secretary of Homeland Security
considers it to be in the public or national interest to do so.” INA
§ 212(d)(14), 8 U.S.C. § 1182(d)(14); see also Meridor, 891 F.3d at 1306
n.6 (noting that this section reads “in the Attorney General’s discre-
tion” but is likely a scrivener’s error and should read “in the
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22-13364 Opinion of the Court 5
Secretary of Homeland Security’s discretion,” as the official version
of the Code recognizes).
“A U visa is a nonimmigrant visa that is available to nonciti-
zen victims of certain crimes to encourage noncitizens to come for-
ward and help law enforcement investigate and prosecute criminal
activity.” Meridor, 891 F.3d at 1304 n.1. Qualifying family members
such as spouses and children of the principal U visa applicant may
apply as a derivative of the principal’s application. INA
§ 101(a)(15)(U)(ii), 8 U.S.C. § 1101(a)(15)(U)(ii). Like the principal,
the qualifying family member must be admissible to the United
States to be eligible for a U visa, and if not, may file a Form I-192 to
waive inadmissibility. 8 C.F.R. § 214.14(c)(2)(iv), (f)(ii). The prin-
cipal U visa applicant will file a Form I-918, while the derivative
beneficiary will file a Form I-918, Supplement A. Id. §
214.14(c)(2)(i), (f)(2).
In Meridor, we held that “the plain language of section
1182(d)(3)(A) grants to the Attorney General authority to waive the
inadmissibility of an individual subject to removal applying for a
temporary nonimmigrant visa, and therefore permits the Attorney
General to waive the inadmissibility of U Visa applicants.” Meridor,
891 F.3d at 1307 (internal citations omitted).
“The word ‘may’ customarily connotes discretion.” Jama v.
Immigr. & Customs Enf’t, 543 U.S. 335, 346 (2005). “[T]he use of the
word ‘shall’ suggests that discretion may not be granted.” Brasil v.
Sec’y, Dep’t of Homeland Sec., 28 F.4th 1189, 1193 (11th Cir. 2022). In
Brasil, we found in analyzing a different section of the INA than the
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6 Opinion of the Court 22-13364
one at issue here that in contrast to the use of “shall,” the phrase
“the Attorney General may . . . waive” “indicate[s] a grant of dis-
cretion.” Id.
Here, because our precedent and the relevant statute indi-
cate that an IJ may adjudicate an application for a waiver of inad-
missibility in this situation but is not required to do so, the IJ did
not err in finding that it did not have to adjudicate Garcia Gal-
lardo’s waiver. The BIA’s interpretation here that INA § 212(d)(14),
8 U.S.C. § 1182(d)(14), does not mandate IJs to adjudicate waivers
was a reasonable interpretation of the statute in light of the stat-
ute’s use of the word “may” and its reliance on Meridor. Hincapie-
Zapata, 977 F.3d at 1200. Nothing in Meridor suggests that IJs must
adjudicate requests for inadmissibility waivers in this situation, as
this Court held that the INA “permits the Attorney General to
waive the inadmissibility of U visa applicants,” not that the INA
requires the Attorney General to do so. Meridor, 891 F.3d at 1307
(citing L.D.G. v. Holder, 744 F.3d 1022, 1030 (7th Cir. 2014)).1 The
statute also does not differentiate between whether an IJ can adju-
dicate an inadmissibility waiver before or after a final order of re-
moval has been issued as Garcia Gallardo argues.
1 Thus, we reject Garcia Gallardo’s argument that the IJ was required to adju-
dicate his application for a waiver of inadmissibility. It is not clear whether he
is also arguing that the IJ abused his discretion in declining to adjudicate his
waiver request. However, to the extent he is challenging a discretionary deci-
sion, this Court lacks jurisdiction and we dismiss the petition as to any such
discretionary decision.
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22-13364 Opinion of the Court 7
The BIA also did not abuse its discretion by not reopening
Garcia Gallardo’s proceedings after he filed his derivative U visa
application before the BIA for the first time. First, as discussed
above, the BIA correctly found that the IJ did not have to adjudicate
the inadmissibility waiver, even if he was prima facie eligible, so
there was no reason for it to look at the U visa application. Second,
Garcia Gallardo provided no context as to why he was filing his
derivative U visa application with his appeal to the BIA or why it
was previously unavailable to him while the case was still before
the IJ, as he filed it with USCIS more than a year before his Notice
to Appear was issued. Bing Quan Lin, 881 F.3d at 873. Although he
argues that he did not have a chance to present evidence of his
prima facie eligibility for a U visa, he does not explain why he did
not or could not have filed his derivative U visa application with
the IJ. Lastly and most importantly, Garcia Gallardo did not file
his wife’s U visa application that he was a derivative of before the
BIA or IJ, so neither court could have determined whether the prin-
cipal visa application was likely to be granted, and thus neither
court would be able to determine his eligibility for lawful status if
his inadmissibility were waived. Garcia Gallardo has not provided
any meaningful reason as to why remand or reopening would be
warranted. Bing Quan Lin, 881 F.3d at 873-74.
It is also unclear what legal basis Garcia Gallardo is relying
on to argue that the IJ and BIA abused their discretion in requiring
him to file his U visa application in support of his request for a
waiver of inadmissibility and requiring him to establish prima facie
eligibility for a U visa in support of that request. Instead, it appears
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8 Opinion of the Court 22-13364
this is just an abuse of discretion argument as to the agency’s deci-
sion not to adjudicate his inadmissibility waiver, which is not a le-
gal or constitutional argument that this Court has jurisdiction to
review. Arias, 482 F.3d at 1283. Because we lack jurisdiction to
rule on the agency’s discretionary decisions, we dismiss his petition
as to his argument that the BIA abused its discretion in requiring a
showing of prima facie eligibility for a U visa when deciding
whether to adjudicate his request for a waiver of inadmissibility.
PETITION DISMISSED IN PART AND DENIED IN
PART.
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