            Case: 14-12850     Date Filed: 10/05/2015   Page: 1 of 6


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                           Nos. 14-12850; 14-15825
                           Non-Argument Calendar
                         ________________________

                          Agency No. A029-348-440



WILLIAM TALAVERA,

                                                                         Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                         ________________________

                    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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