[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

Nos. 22-11065 & 22-12599

____________________

JESUS GABRIEL NAVARRO GUADARRAMA, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petitions for Review of a Decision of the

Board of Immigration Appeals

Agency Nos. A209-879-709 & A209-879-709

____________________

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2 Opinion of the Court 22-11065

Before NEWSOM, BRANCH, and LUCK, Circuit Judges.

NEWSOM, Circuit Judge:

Jesus Gabriel Navarro Guadarrama, a native and citizen of 

Mexico, petitions for our review of the Board of Immigration 

Appeals’ dismissal of the appeal of his application for adjustment of 

status and the Board’s subsequent denial of his motion to 

reconsider. Navarro Guadarrama contends that the Board erred by 

applying the incorrect legal standard—as articulated in its own 

precedent—to the discretionary consideration of his adjustment-ofstatus application. After careful consideration of the parties’ 

arguments and with the benefit of oral argument, we hold that we 

have jurisdiction to consider Navarro Guadarrama’s petitions for 

review but that the Board did not apply the wrong legal standard. 

Accordingly, we deny the petitions.

I

A

Navarro Guadarrama entered the United States in 1995 and 

was thereafter convicted of several crimes. As relevant here, he 

was convicted of violating Florida state law by (1) possessing 20

grams or less of marijuana in 2005, (2) possessing 20 grams or less 

of marijuana and drug paraphernalia in 2010, and (3) contributing 

to the delinquency of a child in 2018. 

The government initiated removal proceedings against 

Navarro Guadarrama on various grounds, including that he had 

been convicted of a controlled-substance offense under 8 U.S.C. 

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§ 1182(a). Navarro Guadarrama applied for adjustment of status 

pursuant to 8 U.S.C. § 1255(i), which permits an alien who is 

unlawfully in the United States to obtain relief from removal if he 

meets specified requirements. In conjunction with his adjustment 

application, Navarro Guadarrama sought a waiver of 

inadmissibility under 8 U.S.C. § 1182(h), which allows the Attorney 

General to waive inadmissibility in certain circumstances. Navarro 

Guadarrama’s marijuana-possession convictions required him to 

obtain the waiver. 

An immigration judge found that because Navarro 

Guadarrama had two marijuana-possession convictions, he was 

statutorily ineligible for a § 1182(h) waiver, which is available, as 

relevant here, only when an alien has a single offense for possession 

of 30 grams or less of marijuana. Navarro Guadarrama sought 

review of the IJ’s decision before the Board, which dismissed his 

appeal and held that his two marijuana-possession convictions 

rendered him ineligible for a waiver. 

B

After a Florida state court vacated his 2005 marijuanapossession conviction, Navarro Guadarrama moved to reopen his 

removal proceedings. The Board granted the motion and 

remanded the case to the IJ. Following a hearing, the IJ issued a 

written decision denying Navarro Guadarrama’s application for a 

§ 1182(h) waiver and for adjustment of status under § 1255(i). 

Although the IJ found that Navarro Guadarrama was 

statutorily eligible for a § 1182(h) waiver and that he had satisfied 

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the threshold requirements for adjustment of status, she concluded 

that he hadn’t established extreme hardship as required to obtain 

the waiver. The IJ further found that even if Navarro Guadarrama 

had established hardship, he wasn’t entitled to discretionary relief. 

The IJ afforded “favorable weight” to Navarro Guadarrama’s 

“strong family ties within the United States,” the significant length 

of time he had lived in the country, and his work history. The IJ 

explained, though, that Navarro Guadarrama had a number of 

adverse factors, including his criminal record and evidence of his 

bad character. The IJ emphasized his arrest for sexual battery, his 

conviction for contributing to the delinquency of a child, his 

multiple convictions for possession of marijuana and drug 

paraphernalia, the five years he spent as a fugitive in Georgia, and 

his failure to file tax returns. After “considering the totality of the 

circumstances,” the IJ determined that Navarro Guadarrama’s 

adverse factors “greatly outweigh[ed]” his positive equities and,

accordingly, that he had failed to demonstrate that he warranted a 

favorable exercise of discretion necessary to obtain a waiver. The 

IJ incorporated her discretion analysis into Navarro Guadarrama’s

adjustment-of-status evaluation and thus also denied the 

adjustment. 

Navarro Guadarrama sought review of the IJ’s decision

before the Board, which dismissed his appeal. The Board found 

that Navarro Guadarrama’s positive equities were “substantial,” 

including “his lengthy residence in the United States beginning at a 

young age; his close family ties . . . ; his employment history; and 

his community ties . . . .” Ultimately, however, the Board agreed 

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with the IJ’s determination that Navarro Guadarrama didn’t

warrant a favorable exercise of discretion. Summarizing Navarro 

Guadarrama’s adverse factors, including his criminal history, tax 

evasion, and living as a fugitive, the Board concluded:

We agree with the Immigration Judge that the 

negative factors in this case outweigh the 

respondent’s positive equities. Even considering the 

positive factors and the potential hardships of the 

respondent’s removal on himself and his family, we 

conclude that the respondent failed to carry his 

burden of proving that he merits adjustment of status 

in the exercise of discretion. We conclude the 

respondent is undesirable as a permanent resident 

and a grant of relief is not in the best interest of the 

United States. See Matter of Mendez-Morale[z], 21 I&N 

Dec. 296, 299-300 (BIA 1996).

Because the Board determined that Navarro Guadarrama didn’t 

merit discretionary relief, it didn’t reach the questions whether he 

needed a waiver or whether he met his burden regarding hardship. 

Navarro Guadarrama timely petitioned this Court to review the 

Board’s dismissal of his appeal. 

C

Not long thereafter, we held in Said v. U.S. Attorney General,

28 F.4th 1328 (11th Cir. 2022), that Florida’s definition of marijuana 

is broader than (and thus not a categorical match for) the federal 

definition. In light of Said, Navarro Guadarrama moved the Board 

to reconsider its decision in his removal proceedings. He argued 

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that he no longer needed a § 1182(h) waiver because, under Said,

his 2010 state-law marijuana-possession conviction didn’t count as

a controlled-substance offense under § 1182 that would render him 

inadmissible. In his motion, Navarro Guadarrama argued that the 

Board erred by applying the standard articulated in Matter of 

Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996), which applies to 

aliens who require waivers, rather than the standard from Matter 

of Arai, 31 I&N Dec. 494 (BIA 1970), which applies to those who 

don’t. Navarro Guadarrama contended that the Board conflated 

the standards from those two decisions and that the outcome of 

his proceedings would have been different had the proper standard 

been applied—because, he argued, Arai calls for a presumption that 

the favorable exercise of discretion is appropriate for adjustment of 

status, whereas Mendez-Moralez requires no such presumption.

The Board denied Navarro Guadarrama’s motion to 

reconsider. It reaffirmed its conclusion that Navarro Guadarrama 

didn’t warrant discretionary relief. The Board further explained 

that it didn’t err by citing Mendez-Moralez:

In citing to Matter of Mendez, the Board did not 

subject the respondent to a higher discretionary 

standard, as [Navarro Guadarrama] argues in his 

motion. Rather, the Board cited this case for the

overarching proposition that in evaluating whether a 

respondent warrants a favorable exercise of 

discretion, an adjudicator must ‘balance the adverse 

factors evidencing [a noncitizen’s] undesirability as a 

permanent resident with the social and humane 

considerations presented on his behalf to determine 

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whether a grant of relief in the exercise of discretion 

appears to be in the best interest of this country.’

Navarro Guadarrama timely petitioned this Court for 

review of the Board’s denial of his motion to reconsider. We

consolidated that petition with his pending petition for review of 

the Board’s dismissal of his appeal.

II

As a threshold matter, the government asserts that we lack 

jurisdiction over Navarro Guadarrama’s petition under 8 U.S.C. 

§ 1252(a)(2). That statute includes a jurisdiction-stripping 

provision that states, in relevant part, that “[n]otwithstanding any 

other provision of law . . . no court shall have jurisdiction to review 

. . . any judgment regarding the granting of relief under section . . .

1255 . . . of this title.” Id. § 1252(a)(2)(B)(i). Another provision of 

the same statute, though, expressly preserves our jurisdiction over 

“questions of law”: “Nothing in subparagraph (B) . . . which limits 

or eliminates judicial review, shall be construed as precluding 

review of constitutional claims or questions of law raised upon a 

petition for review . . . .” Id. § 1252(a)(2)(D). But to be clear, the

latter provision preserves our jurisdiction only over genuine

questions of law and colorable constitutional claims—a petitioner 

may not “dress up a claim . . . to invoke our jurisdiction.” Patel v. 

U.S. Att’y Gen., 971 F.3d 1258, 1272 (11th Cir. 2020) (en banc), aff’d 

sub nom. Patel v. Garland, 596 U.S. 328 (2022). 

The government concedes, as it must, that “[a]n argument 

that the agency applied the wrong legal standard in making a 

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determination constitutes a legal question” over which we have 

jurisdiction under § 1252(a)(2)(D). Jeune v. U.S. Att’y Gen., 810 F.3d 

792, 799 (11th Cir. 2016); see also Ruiz v. U.S. Att’y Gen., 73 F.4th 

852, 856 (11th Cir. 2023) (holding that “‘questions of law’ in 

§ 1252(a)(2)(D) should be read to ‘include[ ] the application of a 

legal standard to undisputed or established facts’” (quoting 

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020))); Farah v. U.S. 

Att’y Gen., 12 F.4th 1312, 1325 (11th Cir. 2021) (“[W]hether the 

Board applied the correct legal standard is a question of law.”). It 

contends, though, that to confer jurisdiction the petitioner’s 

argument “must have some possible validity,” Arias v. U.S. Att’y 

Gen., 482 F.3d 1281, 1284 n.2 (11th Cir. 2007), and it insists that 

Navarro Guadarrama’s argument doesn’t pass muster because he’s 

really just challenging the IJ’s and Board’s discretionary weighing

of evidence. That sort of contention, the government says, is a 

“garden-variety abuse of discretion argument” over which we lack

jurisdiction. Farah, 12 F.4th at 1326.

We disagree. Navarro Guadarrama isn’t challenging the 

Board’s granular, case-by-case balancing of the positive and 

negative equities in his particular case. Rather, he contends that 

the Board applied the wrong framework altogether—MendezMoralez rather than Arai. Navarro Guadarrama asks us to hold that 

the Board applied the wrong legal standard in deciding his case. 

That is precisely the sort of question of law over which we have 

repeatedly held we have jurisdiction.

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III

On, then, to the merits. The question, again, is whether the 

Board applied the wrong legal standard in rejecting Navarro 

Guadarrama’s claim. And Navarro Guadarrama’s contention, 

again, is that the Board invoked its decision in Mendez-Moralez, 

which applies to aliens who need waivers of inadmissibility, rather 

than Arai, which applies to those who don’t. 

Let’s review, beginning with Arai. There, the Board

reviewed an alien’s application for adjustment of status under 

§ 1255. See 13 I&N Dec. at 494. The applicant didn’t require a 

§ 1182(h) waiver and had no adverse factors. Id. at 495. The Board

held that “[w]here adverse factors are present in a given application, 

it may be necessary for the applicant to offset these by a showing 

of unusual or even outstanding equities.” Id. at 496. “[F]avorable 

factors such as family ties, hardship, length of residence in the 

United States, etc.,” the Board said, “will be considered as 

countervailing factors meriting favorable exercise of administrative 

discretion.” Id. The Board further explained that “[i]n the absence 

of adverse factors, adjustment will ordinarily be granted, still as a 

matter of discretion.” Id.

In Mendez-Moralez, an alien applying for adjustment of status 

needed a waiver of inadmissibility due to his conviction for a crime 

involving moral turpitude. See 21 I&N Dec. at 297. There, the 

Board explained that for cases involving waivers, “the Immigration 

Judge must balance the adverse factors evidencing an alien’s 

undesirability as a permanent resident with the social and humane 

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considerations presented on his behalf to determine whether the 

grant of relief in the exercise of discretion appears to be in the best 

interests of this country.” Id. at 300. Notably for present purposes, 

the Board explained that the approach outlined in Arai “has no 

application to relief under section [1182(h)] of the Act,” where a 

“waiver of inadmissibility . . . necessarily involves at least one 

adverse consideration, specifically the criminal conviction or 

activity constituting the ground of exclusion sought to be waived.” 

Id. The Board thus held that in situations requiring a waiver, “there 

can be no presumption that relief is warranted in the exercise of 

discretion.” Id.

Navarro Guadarrama is quite right that Mendez-Moralez and 

Arai indicate that different legal standards apply in different 

circumstances. In a case like his, however—where all agree that 

significant adverse factors are present—the Mendez-Moralez and 

Arai analyses effectively merge. In Arai, the Board held that “[i]n 

the absence of adverse factors, adjustment will ordinarily be granted, 

still as a matter of discretion.” 13 I&N Dec. at 496 (emphasis 

added). That’s not Navarro Guadarrama’s case. Navarro 

Guadarrama was arrested for sexual battery, was convicted of 

contributing to the delinquency of a child and possessing 

marijuana, lived for five years as a fugitive in Georgia, and failed to 

file tax returns. Therefore, although under Arai adjustment of 

status will “ordinarily” be granted “[i]n the absence of adverse 

factors,” that presumption is inapplicable to Navarro 

Guadarrama’s case. 

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To be clear, the mere fact that in dismissing Navarro 

Guadarrama’s appeal the Board cited Mendez-Moralez rather than 

Arai does not conclusively demonstrate that it applied the wrong 

standard. In its decision on Navarro Guadarrama’s motion to 

reconsider, the Board explained that it cited Mendez-Moralez “for 

the overarching proposition” that the IJ must balance adverse 

factors with “the social and humane considerations presented on [a 

noncitizen’s] behalf” when evaluating whether he warrants a 

favorable exercise of discretion. And that “overarching 

proposition” is comparable to Arai’ssuggestion that adverse factors 

may offset “favorable factors such as family ties, hardship, length 

of residence in the United States, etc.” 13 I&N Dec. at 496. 

Accordingly, even if the Board cited the “wrong” case, there’s no 

indication that, in substance, it applied the wrong standard. Indeed, 

at oral argument Navarro Guadarrama’s lawyer candidly 

acknowledged that he would have a “big problem” if the Board had 

cited Arai rather than Mendez-Moralez—even if its substantive 

analysis had been substantially the same. See Oral Arg. at 9:34–9:42. 

That seems to us exactly right—absent the citation to MendezMoralez, there’s nothing to suggest that the Board applied the 

wrong standard.

* * *

Nothing in the Board’s analysis indicates that it applied a 

substantially incorrect standard in determining whether Navarro 

Guadarrama warranted discretionary relief. Accordingly, we 

DENY the petitions for review.

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