Exhaustion, Intervening Precedent, and Motions to Reconsider: The Eleventh Circuit’s Limits on BIA Duties in Pigueiras v. U.S. Attorney General

I. Introduction

The consolidated petitions in Lazaro Pigueiras v. U.S. Attorney General present a common and practically important problem in immigration litigation: what happens when circuit law changes in favor of the noncitizen after the immigration judge’s decision but before the Board of Immigration Appeals (“BIA”) rules, and the noncitizen does not timely invoke that new precedent before the BIA?

The Eleventh Circuit’s unpublished, per curiam opinion (Dec. 8, 2025) addresses this problem against the backdrop of strict jurisdictional limits in “criminal alien” cases, the administrative-exhaustion requirement, and the narrow function of motions to reconsider. While the decision is “Not for Publication” and thus not binding precedent under Eleventh Circuit rules, it crystallizes and applies several important principles:

• The criminal-alien bar and discretionary-decision bar sharply limit judicial review, leaving only “questions of law” and constitutional claims for the court to consider.
• Arguments based on intervening precedent (here, Said v. U.S. Attorney General) must be timely raised to the BIA; the BIA has no obligation to sua sponte apply new circuit law to issues the noncitizen did not put in play.
• A motion to reconsider cannot be used to introduce legal arguments that could have been presented earlier but were not; BIA precedent requires such motions to be denied.
• The BIA satisfies the “reasoned consideration” requirement so long as it addresses the issues actually presented and explains its reasoning in a reviewable way; it is not required to anticipate or invent additional arguments for the litigant.

These themes converge to foreclose relief for Lazaro Pigueiras, a noncitizen found inadmissible and removable based on a Florida controlled-substance conviction who sought a waiver under 8 U.S.C. § 1182(h)(1) and later invoked Said to challenge his removability and waiver eligibility.

II. Factual and Procedural Background

Although the opinion is concise and omits many factual details, the core procedural history and issues can be reconstructed as follows:

A. The Underlying Removal Proceedings

Lazaro Pigueiras is a noncitizen who was found inadmissible and removable based on a Florida controlled-substance conviction. The removal charge rests on 8 U.S.C. § 1182(a)(2)(A)(i)(II), which renders inadmissible a noncitizen:

who is convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of … a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) …

Because of this conviction, the immigration judge (IJ) found him inadmissible under § 1182(a)(2)(A)(i)(II) and subject to removal. In response, Pigueiras sought a waiver of inadmissibility under 8 U.S.C. § 1182(h)(1). Section 1182(h) authorizes the Attorney General, in her discretion, to waive certain criminal grounds of inadmissibility.

The IJ denied the requested waiver. Though the opinion does not detail the IJ’s reasons, it is clear that:

• The IJ treated the Florida offense as a qualifying “controlled substance” conviction.
• The IJ concluded that the requirements of § 1182(h) (whether under the “15-year” rehabilitation clause in § 1182(h)(1)(A) or the “extreme hardship” clause in § 1182(h)(1)(B)) were not sufficiently met.

B. Appeal to the BIA and the Limited Issues Raised

On appeal to the BIA, Pigueiras raised only two issues:

1. That the defective Notice to Appear (NTA) allegedly deprived the immigration court of jurisdiction.
2. That the IJ erred in finding his oldest son would not experience “extreme hardship” (an issue tied to discretionary relief and hardship-based waivers).

Critically, he did not challenge:

• His removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), i.e., the characterization of his Florida conviction as a qualifying “controlled substance” offense; or
• His eligibility for a waiver under § 1182(h)(1)(A) on any new or legal grounds arising from intervening circuit authority.

The BIA addressed only the issues properly raised in his brief and affirmed the IJ’s decision in an October 2023 order.

C. The Significance of Said v. U.S. Attorney General

Between the IJ’s decision and the BIA’s October 2023 affirmance, the Eleventh Circuit issued a published decision in Said v. U.S. Attorney General, 28 F.4th 1328 (11th Cir. 2022). In Said, the court held that a conviction under Florida Statute § 893.13(6)(a) for possession of marijuana could involve conduct that does not necessarily match the federal definition of a “controlled substance” under 21 U.S.C. § 802. Because of this mismatch, the conviction in Said could not automatically be used as a disqualifying “controlled substance” offense for cancellation-of-removal purposes—particularly, it did not trigger the “stop-time” rule for accrual of continuous residency.

The key takeaway from Said is that Florida’s definition of what counts as a “controlled substance” can be broader than the federal definition, so not every Florida drug conviction is categorically a “controlled substance” offense under the Immigration and Nationality Act (INA).

For Pigueiras, this raised an important potential argument: if his Florida conviction likewise involved a substance that is not necessarily a “federally controlled substance” as defined in 21 U.S.C. § 802, Said might mean that:

• He was not actually inadmissible under § 1182(a)(2)(A)(i)(II); and therefore
• He might be eligible for different or additional relief, including the 15-year rehabilitation waiver in § 1182(h)(1)(A).

However, he did not timely press this argument in his initial briefing to the BIA.

D. Motion to Reconsider Before the BIA

After the BIA’s October 2023 decision, Pigueiras filed a motion to reconsider. In that motion, he:

• Explicitly invoked Said, arguing it undermined the legal basis for the finding that he was inadmissible under § 1182(a)(2)(A)(i)(II).
• Contended that, if Said is applied, his Florida conviction might not qualify as a “controlled substance” offense under the INA.
• Argued that this would affect his eligibility for a waiver of inadmissibility under § 1182(h)(1)(A).
• Asserted that the BIA should have considered Said sua sponte when it decided his appeal in October 2023.

The BIA denied the motion to reconsider, reasoning that:

• A motion to reconsider must identify an error of law or fact in the BIA’s prior decision;
• The prior decision had not addressed the Said-based arguments because they had not been raised in the appeal brief; and
• Under BIA precedent, motions to reconsider cannot be used to make legal arguments that could have been raised earlier.

E. Petitions for Review in the Eleventh Circuit

Pigueiras filed two petitions for review, which the Eleventh Circuit consolidated:

1. A petition challenging the BIA’s October 2023 decision affirming the IJ’s denial of his § 1182(h) waiver and the underlying removal order.
2. A petition challenging the BIA’s denial of his motion to reconsider.

He framed his arguments on review primarily as legal challenges:

• That the BIA erred by failing to apply Said to his removability and to his eligibility for a § 1182(h)(1)(A) waiver;
• That the BIA had an affirmative obligation, under its regulations, to issue a decision consistent with Eleventh Circuit precedent;
• That the BIA failed to follow its own precedents on motions to reconsider;
• And that the BIA failed to provide “reasoned consideration” in denying his motion to reconsider.

The Eleventh Circuit denied both petitions.

III. Summary of the Opinion

The Eleventh Circuit’s decision proceeds in two major steps: (1) defining the scope of its own jurisdiction, and (2) addressing the remaining legal questions that survive jurisdictional limits and exhaustion requirements.

A. Jurisdictional Limits

The court first holds that it lacks jurisdiction to review:

• The final order of removal to the extent it rests on the controlled-substance ground of inadmissibility, because of the “criminal alien” bar in 8 U.S.C. § 1252(a)(2)(C); and
• The discretionary aspects of the BIA’s denial of a waiver under 8 U.S.C. § 1182(h), because of the “discretionary decision” bar in 8 U.S.C. § 1252(a)(2)(B)(i).

However, by virtue of 8 U.S.C. § 1252(a)(2)(D), the court retains jurisdiction to consider “constitutional claims or questions of law.” This becomes the narrow window through which the court reviews:

• Whether the BIA applied the correct legal standards;
• Whether the BIA had a legal obligation to apply Said sua sponte;
• Whether the BIA followed its own precedents on reconsideration; and
• Whether the BIA’s decision reflects “reasoned consideration.”

B. Exhaustion and Issues Not Reached by the BIA

The court acknowledges that the impact of Said on Florida controlled-substance convictions is a question of law. In particular, it would be a legal question whether—if Said applies—Pigueiras’s conviction is insufficient to support inadmissibility under § 1182(a)(2)(A)(i)(II) and whether that change would affect his eligibility for a § 1182(h)(1)(A) waiver.

Yet, the court refuses to reach that question for a procedural reason: it was never squarely presented to or decided by the BIA. The court emphasizes two related points:

1. Failure to exhaust in the initial BIA appeal. In his initial brief to the BIA, Pigueiras raised only the defective-NTA jurisdiction argument and the extreme-hardship finding for his son. He did not challenge removability or waiver eligibility under the logic of Said, even though Said had been decided by then. Under 8 U.S.C. § 1252(d)(1), a noncitizen must exhaust “all administrative remedies available … as of right,” which means he must present the “core issue” and supporting arguments to the BIA. Having failed to do so, these arguments were unexhausted in his first appeal.
2. Limited scope of a motion to reconsider. Although he raised Said-based arguments in his motion to reconsider, the BIA did not address those legal questions on the merits in that posture. Under 8 C.F.R. § 1003.2(b)(1), a motion to reconsider must point to an error of fact or law in the BIA’s prior decision. Because the BIA’s prior decision had not addressed the Said issue at all (it was not raised in the appeal), there was no “error” on that point for the BIA to reconsider.

Relying on Ponce Flores v. U.S. Attorney General, 64 F.4th 1208, 1222 n.7 (11th Cir. 2023), the court reiterates that it does not decide issues “not reached by the BIA.” Thus, the underlying merits of how Said would apply to Pigueiras’s Florida conviction remain unaddressed.

C. Rejection of the Petitioner’s Legal Challenges to the BIA

The court then considers the legal questions that are properly before it:

• Did the BIA commit legal error by failing to apply Said sua sponte at the appeal stage?
• Did the BIA fail to follow its own precedent in denying the motion to reconsider?
• Did the BIA fail to give “reasoned consideration” to the issues raised in the motion to reconsider?

On each point, the court rules against the petitioner:

1. No sua sponte duty to apply intervening precedent to unraised issues. Citing Indrawati v. U.S. Attorney General, 779 F.3d 1284 (11th Cir. 2015), the court holds that the BIA is not required to “divine and discuss any possible arguments” that a noncitizen might make. Under 8 C.F.R. § 1003.1(d)(1), the BIA must “resolve the questions before it,” not search out additional issues. Since removability and § 1182(h)(1)(A) eligibility under Said were not raised, the BIA did not err by failing to address them sua sponte.
2. No misapplication of BIA precedent on reconsideration. BIA precedent, particularly Matter of O-S-G-, 24 I. & N. Dec. 56 (BIA 2006), states that a motion to reconsider based on a legal argument that could have been raised earlier “will be denied.” The Eleventh Circuit agrees that Said-based arguments could have been raised in the initial appeal and that the BIA followed its own precedents in refusing to entertain them belatedly.
3. Reasoned consideration satisfied. The court finds that the BIA properly summarized the case’s procedural posture, the arguments raised in the motion to reconsider, and the governing legal standards. Under Eleventh Circuit precedent, that is sufficient to show that the BIA “heard and thought and not merely reacted.” Therefore, there was no failure of reasoned consideration.

The petitions for review are therefore denied in full.

IV. Detailed Legal Analysis

A. Jurisdictional Framework: Criminal-Alien and Discretionary-Decision Bars

The opinion begins with a meticulous jurisdictional analysis, anchored in three interrelated provisions of 8 U.S.C. § 1252:

1. Criminal-alien bar – § 1252(a)(2)(C).

Section 1252(a)(2)(C) strips federal courts of jurisdiction over:

any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) … including a violation relating to a controlled substance (as described in section 1182(a)(2)(A)(i)(II)).

Because the agency found that Pigueiras was removable on the basis of a controlled-substance offense under § 1182(a)(2)(A)(i)(II), the court concludes that this bar applies. Importantly, in Patel v. U.S. Attorney General, 334 F.3d 1259, 1262 (11th Cir. 2003), the court held that this jurisdictional bar also applies to review of motions to reopen filed by noncitizens removable on specified criminal grounds. The same logic extends to motions to reconsider.

2. Discretionary-decision bar – § 1252(a)(2)(B)(i).

Section 1252(a)(2)(B)(i) provides that no court shall have jurisdiction to review:

any judgment regarding the granting of relief under section … 1229b [cancellation of removal] [or] 1182(h) …

Thus, decisions granting or denying a waiver under § 1182(h)(1) are typically nonreviewable discretionary judgments, except to the extent a noncitizen raises legal or constitutional claims.

3. Restored jurisdiction for legal and constitutional questions – § 1252(a)(2)(D).

Section 1252(a)(2)(D) clarifies that the above jurisdictional bars do not preclude review of:

constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.

This “savings clause” preserves the court’s power to decide:

• Pure legal issues (e.g., whether the agency applied the correct legal standard); and
• Constitutional claims (e.g., due process challenges).

Here, the Eleventh Circuit uses § 1252(a)(2)(D) to entertain legal questions about exhaustion, the BIA’s obligations under its regulations, the scope of reconsideration, and whether the BIA’s reasoning was adequate. But it disclaims jurisdiction over:

• Fact-bound challenges to the underlying removal order; and
• The discretionary weighing of factors under § 1182(h).

B. The Role of Said v. U.S. Attorney General

In Said, the Eleventh Circuit addressed whether a conviction under Florida Statute § 893.13(6)(a) for possession of marijuana categorically qualifies as a “controlled substance” offense referencing the federal schedules in 21 U.S.C. § 802. The court concluded it does not necessarily do so, because the state definition covers some substances that are not federally listed.

In Pigueiras, the panel explicitly recognizes that:

It is a question of law whether, if under the rule in Said, Pigueiras’s controlled substance violation would not constitute a basis for removability under 8 U.S.C. § 1182(a)(2)(A)(i)(II), making Pigueiras eligible for an 8 U.S.C. § 1182(h)(1)(A) waiver.

So, the court does not dismiss the substantive merits of his Said-based theory as frivolous. Instead, it sidesteps that substantive question by emphasizing procedural default and the limits of its reviewing role:

• The BIA never addressed how Said might apply to his conviction; and
• Appellate courts in the Eleventh Circuit do not decide issues “not reached by the BIA.”

Ponce Flores is cited for this principle: the courts of appeals are tribunals of review, not first-instance decisionmakers. Their role is to review what the agency actually decided, not to resolve new issues raised for the first time in the court of appeals.

C. Administrative Exhaustion and Issues “Not Reached by the BIA”

The court grounds its analysis in 8 U.S.C. § 1252(d)(1), which provides that a court may review a final order of removal only if:

the alien has exhausted all administrative remedies available to the alien as of right.

Two Eleventh Circuit cases—Jeune v. U.S. Attorney General, 810 F.3d 792 (11th Cir. 2016), and Indrawati—shape the court’s application of this provision:

• To exhaust a claim, a petitioner must raise the “core issue” before the BIA and “set out any discrete arguments” relied upon in support of that claim.
• A petitioner need not use precise legal jargon, but must give the BIA enough information to identify and correct any alleged errors.

In Pigueiras, the panel notes that:

• His initial BIA briefing did not put the legality of his removal ground under § 1182(a)(2)(A)(i)(II) at issue; and
• Nor did it argue that he was eligible for a § 1182(h)(1)(A) waiver under a different legal framework such as Said.

Instead, the BIA addressed:

1. Whether the defective NTA deprived the IJ of jurisdiction; and
2. Whether the IJ erred in assessing “extreme hardship” to his oldest son.

Because removability and § 1182(h)(1)(A) eligibility under Said were never raised, they were not addressed by the BIA. Under Ponce Flores and similar authority, the Eleventh Circuit will not decide those questions “in the first instance.” That is, the exhaustion requirement and the hierarchical structure of review limit the court to issues the BIA actually decided.

Although the Supreme Court in Santos-Zacaria v. Garland, 598 U.S. 411 (2023), clarified that § 1252(d)(1)’s exhaustion requirement is a claim-processing rule rather than a jurisdictional one, the Eleventh Circuit still treats it as mandatory when properly invoked. Pigueiras reflects that post-Santos-Zacaria understanding: the court cites Jeune and Indrawati for the exhaustion standard, acknowledges partial overruling by Santos-Zacaria, and then applies those standards to deny relief because the claims were unexhausted before the BIA.

D. Motions to Reconsider: Narrow Scope and the Bar on New Arguments

The decision next examines the function of motions to reconsider in immigration proceedings. Under 8 C.F.R. § 1003.2(b)(1):

A motion to reconsider shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision.

Thus, a motion to reconsider is not:

• A second appeal raising new issues; or
• A device for introducing legal arguments that were available but not asserted earlier.

The BIA’s leading precedent on this point is Matter of O-S-G-, 24 I. & N. Dec. 56 (BIA 2006), which the Eleventh Circuit quotes approvingly:

A motion to reconsider based on a legal argument that could have been raised earlier in the proceedings will be denied.

In other words, reconsideration is designed to correct identifiable errors in the BIA’s own just-issued decision, not to reopen the entire case to new lines of attack. The Eleventh Circuit endorses the BIA’s reasoning that because:

• The October 2023 BIA decision had not addressed Said or any challenge to removability or § 1182(h)(1)(A) eligibility; and
• Nothing in that decision misapplied the law as to issues actually raised on appeal;

there was no error to “reconsider” on those points. The petitioner was trying to use reconsideration to inject “pure legal arguments that could have been raised previously and are not based on the BIA’s first decision.” That is precisely what O-S-G- forbids.

The court also distinguishes the cases invoked by the petitioner:

• Matter of Medrano, 20 I. & N. Dec. 216 (BIA 1990). The petitioner relied on the dissent in Medrano, which suggested that the BIA can, in some circumstances, consider new legal arguments on reconsideration. But the dissent is not binding, and even it only argued that the BIA may consider such issues, not that it must.
• In re Ramos, 23 I. & N. Dec. 336 (BIA 2002). There, the BIA granted reconsideration because the government highlighted an “aspect of the case [that] was overlooked”—a piece of information already in the record. The Eleventh Circuit agrees that this is a different situation; Ramos involved overlooked facts already tied to the issues the BIA actually decided, whereas Pigueiras involves wholly new legal arguments that could have been raised earlier.

The court thus holds that the BIA correctly applied its own precedents in denying reconsideration.

E. No Sua Sponte Duty to Apply Intervening Precedent

A central feature of the case is the petitioner’s argument that the BIA had an “affirmative obligation” to apply Said even though he did not raise it in his appeal brief. He relies on 8 C.F.R. § 1003.1(d)(1), which provides that the BIA:

shall resolve the questions before it in a manner that is timely, impartial, and consistent with the Act and regulations.

The Eleventh Circuit rejects this expansive reading of the regulation. It interprets the phrase “questions before it” to mean those issues properly presented in the party’s brief, not every conceivable legal theory that might favor the noncitizen.

To buttress this interpretation, the court invokes Indrawati, where it held:

The BIA’s failure to divine and discuss any possible arguments [the petitioner] might make at a future point does not reflect a lack of reasoned consideration.

Applying this principle in Pigueiras:

• The BIA was not required to delve into potential implications of Said for removability or § 1182(h)(1)(A) eligibility when the petitioner never put those issues before it.
• Even though the law had changed in the petitioner’s potential favor, it remained his responsibility (through counsel) to bring that change to the BIA’s attention in the initial appeal.

The court also emphasizes the BIA’s institutional role: it is an appellate tribunal constrained by “applicable law, regulations, and procedures, and by decisions of the Attorney General” (8 C.F.R. § 1003.1(d)(1)(i)), and it resolves “the questions before it,” not the entirety of immigration law as potentially applicable to each case.

F. Reasoned Consideration

Lastly, the petitioner claimed the BIA’s denial of his motion to reconsider failed the “reasoned consideration” standard. The Eleventh Circuit defines this standard (citing Jathursan v. U.S. Attorney General, 17 F.4th 1365 (11th Cir. 2021), and Bing Quan Lin v. U.S. Attorney General, 881 F.3d 860 (11th Cir. 2018)) as follows:

• The BIA must consider the issues raised and explain its decision in terms that permit meaningful judicial review.
• A decision shows “reasoned consideration” if it lists the relevant facts, refers to applicable statutes and regulations, and explains the basis of the ruling.
• The BIA is not required to discuss every piece of evidence or every possible argument; it must simply demonstrate it has “heard and thought and not merely reacted.”

The court concludes that the BIA satisfied this standard because:

• It accurately summarized the procedural history of the case;
• It restated the arguments made in the motion to reconsider;
• It cited and applied relevant law governing motions to reconsider, including 8 C.F.R. § 1003.2(b) and BIA precedent; and
• It explained why, under those standards, it would not reconsider or reopen the unraised Said-based issues.

This is sufficient detail for the Eleventh Circuit to “perceive that [the BIA] has heard and thought and not merely reacted,” which is the touchstone of reasoned consideration in this circuit.

G. Precedents Cited and Their Influence

A structured look at the major cases cited in the opinion helps illuminate the decision’s doctrinal roots:

1. Patel v. U.S. Attorney General, 334 F.3d 1259 (11th Cir. 2003)

Influence:

• Confirmed that the criminal-alien bar in § 1252(a)(2)(C) applies not only to direct review of final removal orders but also to motions to reopen (and, by extension, motions to reconsider).
• Underlies the court’s conclusion that it lacks jurisdiction over most aspects of Pigueiras’s petition, except for legal and constitutional questions preserved by § 1252(a)(2)(D).

2. Jeune v. U.S. Attorney General, 810 F.3d 792 (11th Cir. 2016)

Influence:

• Articulated the standard for exhaustion: petitioners must raise the “core issue” and discrete arguments before the BIA.
• Supports the conclusion that Pigueiras did not exhaust challenges to his removability or § 1182(h)(1)(A) eligibility based on Said in his initial BIA appeal.

3. Indrawati v. U.S. Attorney General, 779 F.3d 1284 (11th Cir. 2015)

Influence:

• Clarified that the BIA’s failure to predict and address unarticulated arguments does not constitute a failure of reasoned consideration.
• Provides the doctrinal foundation for rejecting the view that the BIA must sua sponte apply intervening circuit precedent to issues not raised by the petitioner.

4. Ponce Flores v. U.S. Attorney General, 64 F.4th 1208 (11th Cir. 2023)

Influence:

• Reiterated that the court of appeals will not consider issues not decided by the BIA.
• Justifies the Eleventh Circuit’s refusal to decide, in the first instance, whether Said invalidates the underlying controlled-substance basis for removal.

5. Matter of O-S-G-, 24 I. & N. Dec. 56 (BIA 2006)

Influence:

• Defines motions to reconsider as vehicles for pointing out errors in the BIA’s prior decision, not for raising new legal theories.
• Explicitly states that reconsideration will be denied if based on legal arguments that could have been raised earlier.
• Forms the central precedent that the Eleventh Circuit finds the BIA faithfully followed in denying reconsideration here.

6. Matter of Medrano, 20 I. & N. Dec. 216 (BIA 1990)

Influence:

• The majority opinion supports the principle that arguments should be raised “at one time, rather than in piecemeal fashion.”
• The Eleventh Circuit notes that the petitioner’s reliance on the dissent in Medrano (suggesting the BIA may sometimes consider new arguments) is misplaced, as that dissent is not binding and does not impose any on the BIA.

7. In re Ramos, 23 I. & N. Dec. 336 (BIA 2002)

Influence:

• Involved a successful motion to reconsider where the government pointed to overlooked facts already present in the record.
• The Eleventh Circuit distinguishes Ramos on the ground that it concerned oversight of an existing factual issue, whereas Pigueiras involved entirely new, purely legal arguments based on precedent that could have been raised earlier.

8. Jathursan and Bing Quan Lin – Reasoned Consideration

Influence:

• These cases explain what “reasoned consideration” requires and what is sufficient for the BIA’s analysis to pass muster.
• The Eleventh Circuit uses them to support its conclusion that the BIA’s denial of reconsideration met that standard.

V. Complex Concepts Simplified

The opinion presupposes familiarity with several technical immigration-law concepts. The following simplified explanations may assist non-specialist readers.

1. Controlled-Substance Ground of Inadmissibility – § 1182(a)(2)(A)(i)(II)

Certain criminal convictions make a noncitizen “inadmissible”—barred from entering or remaining in the United States. One such ground is a conviction for violating any law “relating to a controlled substance,” where “controlled substance” is defined by federal law (21 U.S.C. § 802). State drug laws can be broader than federal law; when they are, not every conviction under the state law automatically counts as a “controlled substance” conviction for immigration purposes. Said is an example where the state and federal definitions did not fully overlap.

2. § 212(h) Waiver of Inadmissibility – 8 U.S.C. § 1182(h)

Section 212(h) authorizes the Attorney General to waive some criminal grounds of inadmissibility. Two major pathways are:

• § 1182(h)(1)(A) (“15-year” rehabilitation waiver). Available where:
  • The criminal conduct occurred more than 15 years before the application for a visa, admission, or adjustment of status;
  • The noncitizen has been rehabilitated; and
  • The noncitizen is not a danger to national security or public safety.
• § 1182(h)(1)(B) (“extreme hardship” waiver). Available where refusal of admission would result in “extreme hardship” to a qualifying U.S.-citizen or lawful-permanent-resident spouse, parent, son, or daughter.

Even when eligibility criteria are met, the grant of a § 212(h) waiver is entirely discretionary.

3. Criminal-Alien Bar – 8 U.S.C. § 1252(a)(2)(C)

This provision strips federal courts of jurisdiction to review final orders of removal if the noncitizen is removable for certain crimes, including controlled-substance offenses. However, questions of law and constitutional claims remain reviewable under § 1252(a)(2)(D).

4. Discretionary-Decision Bar – 8 U.S.C. § 1252(a)(2)(B)(i)

This provision prevents courts from reviewing “any judgment regarding the granting of” certain forms of relief, including cancellation of removal and § 212(h) waivers. Again, § 1252(a)(2)(D) restores jurisdiction only over legal and constitutional issues, not over the weighing of discretionary factors.

5. Exhaustion of Administrative Remedies – § 1252(d)(1)

Before a noncitizen can ask a federal court to review an immigration decision, he must first present his arguments to the BIA. This ensures the agency has a fair chance to correct its own errors and develop the record. Failure to raise an issue at the BIA level generally precludes review of that issue in the court of appeals.

6. Motion to Reconsider vs. Motion to Reopen

• Motion to reconsider (8 C.F.R. § 1003.2(b)):
  • Asks the BIA to re-evaluate its decision based on alleged errors of law or fact in that decision.
  • Does not introduce new evidence; focuses on the correctness of the prior ruling.
• Motion to reopen (8 C.F.R. § 1003.2(c)):
  • Seeks to reopen proceedings to consider new, previously unavailable evidence.
  • Often tied to changed country conditions or newly discovered facts.

In Pigueiras, the motion at issue is a motion to reconsider, which is confined to alleged legal errors in the BIA’s prior decision, not a vehicle for new legal theories.

7. Reasoned Consideration

“Reasoned consideration” is a standard courts use to evaluate the adequacy of the BIA’s explanation. The BIA meets this standard if:

• It shows awareness of the key facts and arguments;
• Applies the correct legal framework; and
• Explains its ruling sufficiently for a reviewing court to understand what it did and why.

The BIA need not exhaustively address every conceivable angle; it must simply show it has engaged in a reasoned decision-making process.

VI. Impact and Practical Implications

A. For Noncitizens with Florida Drug Convictions After Said

Pigueiras illustrates a critical practical point: even when new precedent like Said potentially undermines the basis for removal, noncitizens cannot assume the BIA will apply it sua sponte. Counsel must:

• Monitor new circuit decisions while an appeal is pending before the BIA;
• Timely alert the BIA to those decisions by supplemental briefing or motions; and
• Expressly argue how those decisions affect removability and eligibility for relief.

Failure to do so may forfeit the benefit of new, favorable law, as happened in Pigueiras.

B. For Litigation Strategy: Exhaustion and Issue Preservation

The decision underscores the importance of comprehensive issue preservation:

• Arguments about the legal sufficiency of the removal ground (e.g., whether a state conviction matches the federal definition of a “controlled substance”) must be raised in the IJ and BIA proceedings.
• Arguments about eligibility for discretionary relief (e.g., availability of specific § 212(h) pathways) should also be framed as legal questions where appropriate and explicitly preserved.
• Relying on a motion to reconsider to introduce entirely new legal arguments (particularly ones based on precedent that existed earlier) is risky and, under O-S-G-, generally doomed.

C. Clarifying the Role of the BIA

The opinion confirms that:

• The BIA is an appellate body, not a roving error-corrector obligated to search for every potential legal advantage to the noncitizen.
• Its duty is to “resolve the questions before it” — those framed in the notice of appeal and briefs.
• It may, but need not, address new legal arguments presented in a motion to reconsider that could have been raised earlier.

D. For Judicial Review in Criminal-Alien Cases

Pigueiras also exemplifies how narrow judicial review is in criminal-alien cases:

• Facts and discretionary judgments are largely insulated from review.
• Only legal and constitutional questions are reviewable, and even then, only those that have been exhausted and decided by the BIA.
• Where a noncitizen fails to preserve key legal challenges at the agency level, courts will not step in to decide them.

VII. Conclusion

Pigueiras v. U.S. Attorney General does not announce a brand-new doctrine, but it forcefully applies and clarifies several important principles at the intersection of immigration law, administrative law, and appellate practice:

• The criminal-alien and discretionary-decision bars significantly limit judicial review, leaving only narrow room for legal and constitutional challenges.
• Exhaustion remains a strict and consequential requirement: issues not clearly presented to the BIA will not be addressed by the court of appeals.
• The BIA has no sua sponte duty to apply intervening precedent like Said to issues never raised by the noncitizen.
• Motions to reconsider cannot be used as vehicles for belatedly asserting legal theories that were available during the initial appeal.
• The “reasoned consideration” standard is satisfied when the BIA addresses the arguments actually presented and explains its decision in a manner suitable for review.

For practitioners, the case is a pointed reminder: in immigration litigation—especially in criminal-alien cases—timely, thorough issue preservation before the BIA is essential. Intervening favorable precedent will not rescue arguments that were never made, and motions to reconsider cannot be relied upon to reopen legal theories that should have been advanced from the outset.