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                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13752
                         Non-Argument Calendar
                       ________________________

                        Agency No. A070-642-655



ARNOLDO RAFAEL RUIZ OCHOA,

                                                                       Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                              (March 4, 2014)

Before TJOFLAT, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Arnoldo Ruiz Ochoa petitions for review of the Board of Immigration

Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”) decision that

he was ineligible for a waiver of inadmissibility under the Immigration and

Nationality Act (“INA”) § 212(h), 8 U.S.C. § 1182(h), and was thus ineligible for

an adjustment of status under INA § 245(i), 8 U.S.C. § 1255(i). The IJ found Ruiz

Ochoa removable pursuant to INA § 212(a)(2)(A)(i)(I), 8 U.S.C.

§ 1182(a)(2)(A)(i)(I), for being an alien who was convicted of acts which

constituted the essential elements of a crimes involving moral turpitude. In

petitioning this court for review, Ruiz Ochoa argues that the BIA, in determining

whether he warranted a § 212(h) waiver as a matter of discretion, employed an

incorrect legal standard by failing to articulate any “metric” for comparing and

weighing the positive and negative factors.

      We review de novo questions about our subject matter jurisdiction. See Ruiz

v. Gonzales, 

, 765 (11th Cir. 2007). We also review questions of law

de novo. De Sandoval v. U.S. Att’y Gen., 

, 1278 (11th Cir. 2006).

In pertinent part, INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), provides that

“no court shall have jurisdiction to review . . . any judgment regarding the granting

of relief under” certain immigration statutes, including 8 U.S.C. § 1182(h), which

provides for waivers of inadmissibility. INA § 242(a)(2)(B)(i), 8 U.S.C.

§ 1252(a)(2)(B)(i). This court does have jurisdiction, though, to review


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“constitutional claims or questions of law raised upon a petition for review.” INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). Ruiz Ochoa claims that the BIA

applied an incorrect legal standard in evaluating whether he should be granted a

waiver of inadmissibility; the standard was incorrect, he says, because the BIA

failed to set forth a “metric” for weighing the factors relevant to a determination

under INA § 212(h), 8 U.S.C. § 1182(h). This presents a question of law; hence,

we have jurisdiction to entertain Ruiz Ochoa’s petition.

      Section 212(a)(2) of the INA provides that individuals who have committed

crimes of moral turpitude are inadmissible. INA § 212(a)(2)(A)(i)(I), 8 U.S.C.

§ 1182(a)(2)(A)(i)(I). Section 212(h)(1)(B) of the INA gives the Attorney General

discretion to waive the application of § 212(a)(2)(A)(i)(I) in the case of an

immigrant who is the spouse or parent of a U.S. citizen if the immigrant establishes

that the denial of his admission will result in extreme hardship to the citizen. INA

§ 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B).

      “[T]he immigration judge is not bound by an inflexible test in determining

whether to grant a . . . waiver as a matter of discretion.” Cobourne v. I.N.S., 

, 1566 (11th Cir. 1986) (referring to the now-repealed INA § 212(c), 8

U.S.C. § 1182(c), which addressed a waiver of inadmissibility for lawful

permanent residents returning to the United States after temporarily traveling

abroad) (citing Matter of Marin, 16 I. & N. Dec. 581, 584 (BIA 1978), abrogated


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on other grounds by Matter of Edwards, 20 I. &. N. Dec. 191 (BIA 1990)

(identifying the various positive and negative factors that should be balanced in

determining whether an alien is eligible for a § 212(c) waiver)); see also Matter of

Mendez-Moralez, 21 I. & N. Dec. at 299-300 (applying the Marin factors to an

application for a § 212(h) waiver). Instead, the IJ, and thus the BIA, “must balance

the adverse factors evidencing an alien’s undesirability as a permanent resident

with the social and humane considerations presented in his behalf to determine

whether” granting a waiver is in the best interests of the United States. 

(quotation omitted).

      The BIA did not err by failing to articulate a metric for considering whether

Ruiz Ochoa warranted a § 212(h) waiver. The BIA, like the IJ, balanced balanced

the adverse factors against the positive equities Ruiz Ochoa presented in

determining whether discretionary relief is warranted. See 

(citing Matter of Marin, 16 I. & N. Dec. at 584). In its decision, the BIA

cited to its precedential authority and identified the positive and negative factors to

be weighed in determining whether Ruiz Ochoa was entitled to the relief he

sought. The BIA recognized Ruiz Ochoa’s “positive equities.” BIA decision at 2.

He had “a long residence in this country,” “strong family ties to this country,

including his United States citizen wife, and three United States citizen children.”




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a “devoted father,” “regularly paid his taxes and own[ed] a business.” 

would result in significant hardship to [his] wife and children.” 

other side of the ledger, the BIA found that Ruiz Ochoa’s case

presented “some significant negative factors, including [his] lengthy and troubling

criminal history.” 

arrested in 1996 for involvement with a forged

check. 

course of 10 years, he [had] been arrested four times and

convicted three times for driving under the influence of alcohol . . . the fourth

result[ing] in a conviction for reckless driving and the revocation of his driver’s

license.” 

He had two arrests for “family violence involving his wife.”

“These arrests resulted in a conviction for battery and a conviction for interference

with a 911 emergency call.” 

agreed with the IJ that his “use of

physical force against his wife constitute[d] a significant negative factor.” 

concluded its balancing by saying that it was a “close case.” It

nonetheless agreed with the IJ “that the positive factors presented [were]

insufficient to overcome the negative discretionary factors,” 

that

Ruiz Ochoa failed to establish eligibility for a section 212(h) waiver as a matter of

discretion. See Matter of Mendez-Moralez, 21 I. & N. Dec. at 299-301.1 We are

not persuaded by Ruiz Ochoa’s argument that BIA applied an incorrect standard in

reaching this decision. His petition for review is therefore denied.

       1
         Because Ruiz Ochoa was not eligible for a waiver, the BIA did not address whether he
merited adjustment of status in the exercise of discretion.
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PETITION DENIED.




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