542 F. App'x 772
11th Cir.2013Background
- Cobos-Gonzalez, a Mexican citizen and lawful permanent resident, was convicted in 2008 of false imprisonment (Fla. Stat. § 787.02) and aggravated assault with a firearm (Fla. Stat. § 784.021) after pleading guilty; sentenced to three years. Police report says he forced a friend into a car at gunpoint, threatened him, and forced him to drive to another location.
- DHS charged Cobos with removability as an aggravated felon and as a person convicted of a crime of violence under the INA.
- Cobos applied for a waiver of inadmissibility under 8 U.S.C. § 1182(h) and adjustment of status; the IJ denied relief after applying heightened discretionary standards in 8 C.F.R. § 1212.7(d); the BIA affirmed.
- Cobos appealed to the Eleventh Circuit arguing: (1) § 1212.7(d) is unconstitutional as applied; (2) the agency conflated § 1212.7(d)’s “violent or dangerous” language with the statutory “crime of violence” definition; and (3) the IJ/BIA erred in weighing hardship evidence.
- The Eleventh Circuit reviewed jurisdictional limits: lacks jurisdiction to review discretionary relief denials but retains review over colorable constitutional claims and questions of law; distinguishes legal issues from factual abuse-of-discretion arguments.
Issues
| Issue | Cobos's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 1212.7(d) was unconstitutionally applied to raise statutory eligibility for § 1182(h) waivers | §1212.7(d) effectively added extra statutory requirements and thus violated separation of powers | Regulation is discretionary guidance; it does not alter statutory eligibility and was not applied to bar eligibility | Denied — Court retained jurisdiction for this claim but held the regulation was constitutional as applied; it did not modify statutory eligibility |
| Whether the agency conflated “violent or dangerous” in § 1212.7(d) with statutory “crime of violence” | Agency equated the regulation’s language with the statutory crime-of-violence standard, creating legal error | Agency properly applied §1212.7(d); BIA’s order did not reference the statutory crime-of-violence term and independently found the crimes violent/dangerous | Dismissed for lack of jurisdiction — claim not colorable given plain regulation language and BIA’s reasoning |
| Whether the BIA/IJ erred as a matter of law in weighing hardship evidence for § 1182(h) relief | The IJ/BIA failed to consider or misweighed multiple hardship factors, requiring reversal | The weighing of hardships is discretionary; BIA considered relevant factors and concluded hardships were not exceptional and extremely unusual | Dismissed for lack of jurisdiction — presented an abuse-of-discretion/factual-weighting claim, not a reviewable legal question |
| Jurisdiction: Whether the court may review these claims | Cobos urged review of constitutional and legal claims under §1252(a)(2)(D) | Government argued jurisdiction is barred for discretionary relief and convictions for CIMTs/affirmed felonies | Court: lacks jurisdiction over discretionary and factual-weighting claims; retains but rejects the one colorable constitutional claim on the merits |
Key Cases Cited
- Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341 (11th Cir. 2009) (review limited to BIA decision unless BIA adopts IJ’s opinion)
- Alvarado v. U.S. Att’y Gen., 610 F.3d 1311 (11th Cir. 2010) (standard for de novo determination of subject matter jurisdiction)
- Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191 (11th Cir. 2008) (distinguishing legal/constitutional questions from abuse-of-discretion factual claims)
- Arias v. U.S. Att’y Gen., 482 F.3d 1281 (11th Cir. 2007) (abuse-of-discretion claims couched in constitutional language not retained)
- Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315 (11th Cir. 2007) (application of undisputed facts to legal standard is a reviewable question of law)