           Case: 13-10896   Date Filed: 08/26/2013   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10896
                        Non-Argument Calendar
                      ________________________

                       Agency No. A094-000-638



NAU VELAZQUEZ-MACEDO,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                            (August 26, 2013)

Before DUBINA, WILSON, and EDMONDSON, Circuit Judges.

PER CURIAM:
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      Nau Velazquez-Macedo, a native and citizen of Mexico, seeks review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion for

reconsideration of its decision affirming the Immigration Judge’s (“IJ”) order that

Velazquez-Macedo was statutorily ineligible for cancellation of removal. During

his merits hearing, Velazquez-Macedo testified that he had sent his non-U.S.

citizen son $3,000 to pay an alien smuggler to assist his son in entering the United

States illegally. The IJ concluded that Velazquez-Macedo was statutorily

ineligible for cancellation of removal because he could not demonstrate good

moral character, as his admission to sending his son money to pay a smuggler

constituted alien smuggling, as defined at Immigration and Nationality Act

(“INA”) § 212(a)(6)(E), 8 U.S.C. § 1182(a)(6)(E). The BIA affirmed and

Velazquez-Macedo filed a motion to reconsider with the BIA, which the BIA

denied.

      On appeal, Velazquez-Macedo argues that the BIA abused its discretion in

denying his motion for reconsideration because the BIA failed to interpret properly

the good moral character provision of the INA. He specifically argues that the

statute precludes a finding of good moral character only if the alien is convicted of,

or admits to committing, an alien smuggling offense, and that the IJ and BIA

merely inferred that Velazquez-Macedo committed an alien smuggling offense.

He further contends that the BIA erred in concluding that the family-unity waiver


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to inadmissibility based on alien smuggling does not apply to cancellation of

removal.

        “We review the BIA’s denial of a motion for reconsideration for abuse of

discretion.” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007). A

motion to reconsider shall specify “the errors of fact or law” in the previous order

and “shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). A motion

to reconsider that merely restates the arguments that the BIA previously rejected

provides no reason for the BIA to change its prior decision. See Calle, 504 F.3d at

1329.

        We review questions of law de novo, including the BIA’s statutory

interpretations. De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1278 (11th Cir.

2006). “It is well established that ‘when the statute’s language is plain, the sole

function of the courts -- at least where the disposition required by the text is not

absurd -- is to enforce it according to its terms.’” Lamie v. U.S. Trustee, 540 U.S.

526, 534, 124 S.Ct. 1023, 1030, 157 L.Ed.2d 1024 (2004).

        For certain nonpermanent residents, the Attorney General may cancel the

removal of an alien who is inadmissible or deportable from the United States if (1)

the alien has been physically present in the United States for a continuous period of

not less than ten years prior to the application; (2) he has been a person of good

moral character for those ten years; (3) he has not been convicted of certain crimes;


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and (4) the alien’s removal would present an extreme hardship to the alien’s

spouse, parent, or child who is a U.S. citizen or lawful permanent resident. INA

§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1).

      An alien shall not be regarded as one of good moral character if, during the

period for which good moral character is required, the alien was “a member of one

or more of the classes of persons, whether inadmissible or not, described in [INA

§ 212(a)(6)(E)] if the offense described therein, for which such person was

convicted or of which he admits the commission, was committed during such

period.” INA § 101(f)(3), 8 U.S.C. § 1101(f)(3). Section 212(a)(6)(E) of the INA

provides for the inadmissibility of alien smugglers. INA § 212(a)(6)(E), 8 U.S.C.

§ 1182(a)(6)(E). Clause (i) of § 212(a)(6)(E) states that “[a]ny alien who at any

time knowingly has encouraged, induced, assisted, abetted, or aided any other alien

to enter or try to enter the United States in violation of law is inadmissible.” INA

§ 212(a)(6)(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i) (emphasis added).

      In certain circumstances, the rule in § 212(a)(6)(E)(i) may be waived by the

family-unity waiver, which is set forth in INA § 212(d)(11). That section contains

the language:

      The Attorney General may, in his discretion for humanitarian
      purposes, to assure family unity, or when it is otherwise in the public
      interest, waive application of clause (i) of subsection (a)(6)(E) in the
      case of any alien lawfully admitted for permanent residence who
      temporarily proceeded abroad voluntarily and not under an order of
      removal, and who is otherwise admissible to the United States as a
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      returning resident . . . and in the case of an alien seeking admission or
      adjustment of status as an immediate relative or [family-sponsored]
      immigrant . . . if the alien has encouraged, induced, assisted, abetted,
      or aided only an individual who at the time of such action was the
      alien’s spouse, parent, son, or daughter (and no other individual) to
      enter the United States in violation of law.

INA § 212(d)(11), 8 U.S.C. § 1182(d)(11) (emphasis added).

      The BIA did not abuse its discretion in denying Velazquez-Macedo’s motion

for reconsideration. See Calle, 504 F.3d at 1328. Velazquez-Macedo could have

raised his argument that he was never convicted of or admitted to the offense of

alien smuggling in his original appeal to the BIA, but he did not. In any event,

contrary to his contentions, the IJ found that Velazquez-Macedo admitted during

his merits hearing that he sent his son $3,000 in 2009, so that his son could pay a

smuggler to bring him into the United States illegally, and that this admission fell

within the purview of the alien smuggling provision of INA § 212(a)(6)(E).

      Under the plain language of INA § 212(a)(6)(E)(i), such conduct amounts to

having knowingly “encouraged, induced, assisted, abetted, or aided any other alien

to enter or try to enter the United States in violation of law.” INA

§ 212(a)(6)(E)(i), 8 U.S.C. § 1182(a)(6)(E)(i); see also Lamie v. U.S. Trustee, 540

U.S. at 534, 124 S.Ct. at 1030. Because Velazquez-Macedo’s conduct, which he

admitted at the merits hearing, qualifies as alien smuggling and occurred during the

requisite time for establishing good moral character, Velazquez-Macedo is barred

from showing that he had good moral character during the requisite time. See INA
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§ 101(f)(3), 8 U.S.C. § 1101(f)(3). Therefore, the BIA did not abuse its discretion

in denying Velazquez-Macedo’s motion for reconsideration because he is

statutorily ineligible for cancellation of removal. See INA § 240A(b)(1), 8 U.S.C.

§ 1229b(b)(1).

      For Velazquez-Macedo’s argument that the BIA erred in finding that he did

not qualify for the family-unity waiver, his argument is unavailing. First,

Velazquez-Macedo merely restated the same argument he raised in his original

appeal to the BIA, which the BIA had rejected; and therefore the BIA did not

abuse its discretion in denying Velazquez-Macedo’s motion to reconsider on this

ground. See Calle, 504 F.3d at 1329. Moreover, the BIA did not commit legal

error in concluding that the family-unity waiver did not apply to cancellation of

removal: under the plain language of the statute, an alien is only eligible for the

family-unity waiver if he is lawfully admitted for permanent residence or is

seeking admission or adjustment of status as an immediate relative. See INA

§ 212(d)(11), 8 U.S.C. § 1182(d)(11). Velazquez-Macedo was not eligible for the

waiver: he was not a lawful permanent resident, and he was not seeking admission




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or adjustment of status as an immediate relative. See INA § 212(d)(11), 8 U.S.C.

§ 1182(d)(11). *

       As such, Velazquez-Macedo failed to specify any errors of law or fact

committed by the BIA in its original decision. See Calle, 504 F.3d at 1328-29.

Therefore, the BIA did not abuse its discretion in denying his motion for

reconsideration, and we deny his petition for review.

       PETITION DENIED.




       *
          Velazquez-Macedo also argues that even if he is guilty of alien smuggling, he is not
statutorily ineligible for cancellation of removal because alien smuggling is not a crime
involving moral turpitude (“CIMT”). This argument is meritless because INA § 101(f)(3), 8
U.S.C. § 1101(f)(3), states that an alien cannot establish good moral character if he is an alien
smuggler or has committed a CIMT (among other reasons). In this case, Velazquez-Macedo was
found to lack good moral character because of the alien smuggling exclusion, not the CIMT
exclusion, and thus the CIMT exclusion is not at issue.


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