Fray Jimenez-Garcia v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A088-237-928. Copies to all parties and the agency. [999804225]. [15-1765]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1765

FRAY LUBIAN JIMENEZ-GARCIA,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

February 23, 2016

Decided:

April 26, 2016

Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.

Petition dismissed by unpublished per curiam opinion.

Efrain Alsina, Orlando, Florida, for Petitioner.
Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Leslie
McKay, Assistant Director, Christopher Buchanan, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Fray
Colombia,

Lubian

Jimenez-Garcia,

petitions

for

review

a

of

native

an

order

and
of

citizen
the

of

Board

of

Immigration Appeals dismissing his appeal from the immigration
judge’s denial of his application for cancellation of removal.
See 8 U.S.C. § 1229b(b)(1) (2012).

For the reasons set forth

below, we dismiss the petition for review.
Under 8 U.S.C. § 1252(a)(2)(B)(i) (2012), entitled “Denials
of discretionary relief,” “no court shall have jurisdiction to
review

any

judgment

regarding

section . . . 1229b,”
cancellation

of

the
is

which

removal.

granting
the

Here,

the

of

relief

section

Board

under

governing

agreed

with

the

immigration judge’s secondary finding that the facts in JimenezGarcia’s

case

did

not

warrant

a

favorable

exercise

of

discretion.

See In re C–V–T-, 22 I. & N. Dec. 7 (B.I.A. 1998)

(discussing

evaluative

applicant

warrants

Jimenez-Garcia,

in

process

a
his

for

favorable
brief

filed

determining

exercise
in

this

of

whether

an

discretion).

court,

asserts

a

particularized and layered challenge to this conclusion.
Because
suggests,

a

denial

of

discretionary

discovery

in

nature,

relief
we

lack

is,

as

its

jurisdiction

name
to

review it absent the assertion of a colorable constitutional
claim or question of law.

See Obioha v. Gonzales, 431 F.3d 400,

405 (4th Cir. 2005) (“It is quite clear that the gatekeeper
2

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provision

[of

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§ 1252(a)(2)(B)(i)]

bars

our

jurisdiction

to

review a decision of the [Board] to actually deny a petition for
cancellation of removal.”).

An appellate court, in assessing

its jurisdiction, must:
[D]etermine, regardless of the rhetoric employed in
the petition, whether it merely quarrels over the
correctness of the factual findings or justification
for the discretionary choices, in which case the court
would lack jurisdiction, or whether it instead raises
a “constitutional claim” or “question of law,” in
which case the court could exercise jurisdiction to
review those particular issues.
Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d
Cir. 2006).
We have reviewed Jimenez-Garcia’s claims of error and agree
with the Attorney General that Jimenez-Garcia fails to raise a
colorable

constitutional

or

discretionary determination.

legal

challenge

to

an

entirely

See Gomis v. Holder, 571 F.3d 353,

358 (4th Cir. 2009) (“[A]bsent a colorable constitutional claim
or question of law, our review of the issue is not authorized by
§ 1252(a)(2)(D).”

(emphasis added)).

Despite being couched in

terms of the propriety of the immigration judge’s analytical
process and failure to abide by Board precedent, Jimenez-Garcia
asks this court to reassess his evidence and to conclude that he
does warrant a favorable exercise of discretion.
not do.

This we will

See Sorcia v. Holder, 643 F.3d 117, 124-26 (4th Cir.

2011) (rejecting petitioner’s contention that his arguments—that

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the immigration judge misapplied the law and ruled contrary to
established

precedent

in

weighing

the

discretionary

factors

relevant to cancellation of removal—qualified as issues of law);
Saintha

v.

Mukasey,

516

F.3d

243,

251

(4th

Cir.

2008)

(explaining that this court “decline[s] to stretch reason to
locate questions of law in what [it] ha[s] properly analyzed as
a factual determination”).
Accordingly, we dismiss the petition for review for lack of
jurisdiction.

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

this

court

and

argument

would

not

aid

the

decisional

process.

PETITION DISMISSED

4