The Eleventh Circuit Court of Appeals has denied a petition for review filed by Lazaro Pigueiras, upholding the Board of Immigration Appeals’ (BIA) decision to deny his application for a waiver of inadmissibility. The core of Pigueiras’s appeal centered on the BIA’s refusal to reconsider his case in light of a recent, intervening legal precedent, *Said v. U.S. Att’y Gen.*, which altered how certain controlled substance convictions are viewed for immigration purposes.
The court ultimately found that, due to procedural hurdles—specifically, Pigueiras’s failure to raise the relevant arguments before the BIA initially—it lacked jurisdiction to review the main issues concerning his removability and waiver eligibility. Furthermore, the court determined the BIA did not abuse its discretion in denying his motion for reconsideration.
Jurisdictional Hurdles Block Core Arguments
Pigueiras was found removable based on a conviction for a controlled substance violation. This finding immediately triggered the “criminal alien bar,” which generally strips federal courts of jurisdiction to review final removal orders for aliens convicted of such offenses (8 U.S.C. § 1252(a)(2)(C)).
However, the court noted that this bar does not prevent review of pure questions of law or constitutional claims. Pigueiras’s primary legal argument stemmed from the *Said* decision, issued after his Immigration Judge (IJ) ruling. In *Said*, the Eleventh Circuit held that certain state-level marijuana possession convictions might not qualify as offenses involving a “federally controlled substance,” potentially impacting removability status and eligibility for a waiver under 8 U.S.C. § 1182(h)(1)(A).
The appellate court wrestled with whether it could address the impact of *Said* on Pigueiras’s case.
The judges explained that they generally cannot review issues the BIA itself did not address. In Pigueiras’s initial appeal to the BIA, he failed to raise the specific argument regarding his removability status under the *Said* standard. The BIA, therefore, only ruled on the issues presented: the jurisdiction of the Notice to Appear and the “extreme hardship” his son might face. Because the issue was unexhausted in the initial appeal, the BIA was not required to review it.
Similarly, when Pigueiras brought the *Said* argument up in his motion to reconsider, the BIA denied the motion without ruling on the merits of the *Said* implications. The BIA’s role in a motion for reconsideration is generally limited to reviewing its *own* prior decision for errors of fact or law. Since the BIA’s original decision did not discuss *Said*, the court found no error in the BIA declining to address the new legal question at that stage.
Reviewing Claims of Procedural Error
While the jurisdictional bars prevented the court from re-examining Pigueiras’s underlying eligibility for the § 1182(h)(1)(A) waiver, the court could review his contentions that the BIA made legal errors in handling his motion to reconsider. These claims—that the BIA failed to apply the correct legal standard and did not give reasoned consideration—are treated as questions of law, which remain reviewable.
Pigueiras argued the BIA had an affirmative duty to apply the new *Said* precedent *sua sponte* (on its own initiative) and that it failed to give him reasoned consideration when it denied reconsideration.
The Eleventh Circuit rejected this contention. Citing prior precedent, the court stated that the BIA is not required to “divine and discuss any possible arguments” a petitioner might make, especially those not raised in the initial appeal. Since the issues of removability and the waiver were not properly before the BIA in its initial ruling, it was reasonable for the BIA not to address the impact of the subsequent *Said* decision at that time.
Regarding the motion to reconsider, the court found the BIA followed its own rules. BIA precedent indicates that motions based on legal arguments that *could have been raised earlier* are usually denied. Pigueiras was essentially attempting to introduce new legal arguments after the fact, which the BIA is generally not obligated to entertain. Furthermore, the court found that the BIA *did* provide reasoned consideration when denying the motion to reconsider; it accurately summarized the case history, noted Pigueiras’s arguments, and cited the relevant regulations governing such motions.
In conclusion, the court found that the BIA’s handling of the case, while perhaps frustrating for the petitioner given the change in law, was procedurally sound according to established immigration jurisprudence regarding exhaustion and the scope of review for motions to reconsider.