Case: 18-10998   Date Filed: 10/25/2018   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10998
                        Non-Argument Calendar
                      ________________________

                       Agency No. A089-407-931



YVES MARBENIG SALAS-MONSALVE,

                                                                      Petitioner,


                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                            (October 25, 2018)

Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Yves Marbenig Salas-Monsalve petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision affirming the immigration judge’s (“IJ”)

order denying Salas a waiver of removability under 8 U.S.C. § 1227(a)(1) as a

matter of discretion. The government moves to dismiss the petition for lack of

jurisdiction. For the reasons explained below, we grant the government’s motion.

                                        I.

      Salas, a native and citizen of Venezuela, was admitted to the United States in

July 2000 as a non-immigrant visitor. In October 2007, she used a fraudulent

Cuban birth certificate to obtain status as a lawful permanent resident under the

Cuban Adjustment Act. Several years later, immigration officials discovered that

she was not a Cuban citizen and instituted removal proceedings. She was charged

with being removable because at the time of adjustment of status she was

inadmissible for having sought to obtain status by fraud or misrepresentation. See

8 U.S.C. §§ 1182(a)(6)(C)(i), § 1227(a)(1)(A). Salas conceded removability and

applied to have the grounds of inadmissibility waived under 8 U.S.C.

§ 1227(a)(1)(H).

      The IJ denied Salas a fraud waiver under § 1227(a)(1)(H) and ordered her

removed. While the IJ found that she was statutorily eligible for a fraud waiver,

the IJ denied relief as a matter of discretion after weighing the equities of her

situation pursuant to the BIA’s decision in Matter of Tijam, 22 I. & N. Dec. 408,


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412–13 (BIA 1998). The IJ found that, while Salas’s case presented “several

substantial equities,” including long-term, productive, and law-abiding residence in

the United States, the positive equities were outweighed by her knowing

participation in “an ongoing scheme of fraud and misrepresentation.” Specifically,

the IJ explained, she played a role in her husband’s sham marriage to another

person to obtain immigration status and then submitted the fraudulent Cuban birth

certificate on which her status as a lawful permanent resident was based. The BIA

affirmed the IJ’s decision, agreeing that Salas’s “involvement in multiple

fraudulent schemes to obtain immigration benefits outweighs the equities that she

has presented.”

          Salas now petitions this Court for review. She raises two main issues:

(1) whether the BIA applied the proper standard in denying her application for a

fraud waiver; and (2) whether the BIA’s consideration of certain factors, including

hardship to her or her family, in exercising its discretion to grant or deny a fraud

waiver is “ultra vires to 8 U.S.C. § 1227(a)(1)(H)” and contrary to legislative

intent.     The government has moved to dismiss Salas’s petition for lack of

jurisdiction, arguing that the first issue is a challenge to a purely discretionary

decision we cannot review and that the second issue is unexhausted. We agree

with the government on both points and therefore grant the motion to dismiss.




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                                         II.

      We first consider Salas’s claim that the BIA applied an improper standard in

denying a fraud waiver under 8 U.S.C. § 1227(a)(1)(H) as a matter of discretion.

      We review our own subject-matter jurisdiction de novo. Ali v. U.S. Att’y

Gen., 

, 808 (11th Cir. 2006). By statute, we lack jurisdiction to

review any decision that is committed to the discretion of the Attorney General. 8

U.S.C. § 1252(a)(2)(B)(ii). We may, however, review constitutional claims or

questions of law raised in a challenge to such a decision.               8 U.S.C. §

1252(a)(2)(D).    The constitutional claim or question of law must be “non-

frivolous,” and it cannot simply be a “garden-variety abuse of discretion argument”

framed as a question of law to evade jurisdictional bars. See Alvarez Acosta v. U.S.

Att’y Gen., 

, 1196–97 (11th Cir. 2008).

      Under the fraud-waiver provision, § 1227(a)(1)(H), the Attorney General

may waive removal based on grounds of inadmissibility resulting from fraud or

misrepresentation, provided the applicant meets certain statutory requirements. 8

U.S.C. § 1227(a)(1)(H). Section 1227(a)(1)(H) expressly commits the power to

grant eligible applicants a fraud waiver to “the discretion of the Attorney General.”

power to grant a fraud waiver is discretionary, we have held that

“decisions under 8 U.S.C. § 1227(a)(1)(H) unambiguously fall within the

jurisdiction-stripping provision of § 1252(a)(2)(B)(ii).” Alhuay v. U.S. Att’y Gen.,


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, 549 (11th Cir. 2011) (quotation marks omitted) (alteration adopted).

Accordingly, we lack jurisdiction to review the discretionary denial of Salas’s

application for a waiver of removability.

      Salas protests that she is not challenging the BIA’s exercise of discretion,

but we are not persuaded. She frames her challenge in part as a question of law:

whether the BIA “utilized the proper standard” to adjudicate her application for a

fraud waiver. See Frech v. U.S. Att’y Gen., 

, 1281 (11th Cir. 2007)

(whether the BIA applied the wrong legal standard is a question of law). But her

argument is largely indistinguishable from a “garden-variety abuse of discretion

argument.” See Alvarez 

–97. Her claim that Congress

enacted the “generous” fraud waiver for the sake of maintaining family unity is,

essentially, an argument that the BIA failed to properly weigh the importance of

maintaining family unity when exercising its discretion to deny the fraud waiver.

She also argues explicitly in another section of her brief that substantial equities

warrant a remand for the IJ to reconsider the adverse and favorable factors present

in her case.    These weighing decisions are matters of discretion which, as

explained above, we lack jurisdiction to review under § 1252(a)(2)(B)(ii). See

.

      Because we lack jurisdiction over the BIA’s discretionary decision to deny

Salas a fraud waiver, we grant the government’s motion to dismiss on this issue.


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                                        III.

      Salas next contends that the BIA’s consideration of certain factors in

exercising its discretion to grant or deny a fraud waiver is “ultra vires to 8 U.S.C.

§ 1227(a)(1)(H)” and contrary to legislative intent. Salas did not exhaust this

argument before the BIA, however, so we lack jurisdiction to review it.

      “We lack jurisdiction to consider a claim raised in a petition for review

unless the petitioner has exhausted [her] administrative remedies with respect

thereto.” Amaya-Artunduaga v. U.S. Att’y Gen., 

, 1250 (11th Cir.

2006) (citing 8 U.S.C. § 1252(d)(1)).          “A petitioner fails to exhaust her

administrative remedies with respect to a particular claim when she does not raise

that claim before the BIA.” Indrawati v. U.S. Att’y Gen., 

, 1297

(11th Cir. 2015). Although exhaustion does not require a petitioner to use specific

legal terminology or provide a well-developed argument, she must have presented

the core issue to the BIA.      

conclusory statements are

insufficient. 

petitioner fails to raise a claim in her appeal to the BIA, we

generally lack jurisdiction to consider the claim in a petition for review. Amaya-

.

      Here, we lack jurisdiction to consider Salas’s claim that the discretionary

factors the BIA used to evaluate whether she merited a fraud waiver, as set forth in

the BIA’s decision in Matter of Tijam, are “ultra vires to the language of 8 U.S.C.


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§ 1227(a)(1)(H).” Matter of Tijam states that “evidence of hardship to the alien or

her family if deportation occurs” is one of many “[f]avorable considerations”—

including family ties in the United States, long-term residence, and stable

employment—to evaluate when “balancing . . . an alien’s undesirability as a

permanent resident with the social and human considerations present to determine

whether a grant of relief is in the best interests of this country.” 22 I. & N. Dec. at

412–13. Contrary to Salas’s argument here, nothing in that decision requires an

applicant to establish hardship. See 

event, at no point in her brief to the BIA did Salas argue that the IJ

had improperly required her to show hardship, that Matter of Tijam improperly

adopted a hardship requirement, or that Matter of Tijam improperly imposes

additional requirements not contained in § 1227(a)(1)(H). Rather, her arguments

focused on the weight the IJ gave certain facts when evaluating the positive and

negative factors in her case. In the course of making those arguments, she did

reference the lack of a hardship requirement in § 1227(a)(1)(H), but this passing

reference was not sufficient to present “the core issue to the BIA” for purposes of

the exhaustion requirement. See 

. Because Salas

failed to exhaust her challenge regarding Matter of Tijam’s consistency with the

fraud-waiver statute, we lack jurisdiction to review it. See id.; Amaya-

.


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                                               IV.

      For the reasons explained above, we grant the government’s motion and

dismiss Salas’s petition for review for lack of jurisdiction.

      MOTION GRANTED; PETITION DISMISSED.




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