De Aruajo v. Gonzales

United States Court of Appeals
For the First Circuit
No. 05-1886
DOMINGOS JOAO LIBERAL DE ARAUJO,
Petitioner,
v.
ALBERTO R. GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lipez, Circuit Judges,
and Stafford,* Senior District Judge.
William E. Graves, Jr., with whom Kerry E. Doyle and Graves &
Doyle, on brief for petitioner.
Jeffrey M. Cohen, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, on brief for
respondent.
August 11, 2006
*
Of the Northern District of Florida, sitting by designation.
TORRUELLA, Circuit Judge. Petitioner Domingos Joao
Liberal De Araujo ("De Araujo") asks us to review a decision of the
Board of Immigration Appeals ("BIA") denying his motion to reopen
proceedings and finding that he did not qualify for discretionary
relief. De Araujo claims that the BIA denied him due process by
pre-judging his application for relief under former section 212(c)
of the Immigration and Nationality Act ("INA") and by refusing to
reopen his immigration proceedings to allow him an opportunity to
present evidence in support of his application for former section
212(c) relief. De Araujo also argues that he has not been
convicted of an aggravated felony because he has not committed a
crime of violence. We affirm the BIA's dismissal of De Araujo's
appeal of the aggravated felony issue for his failure to file a
brief with the BIA. Because we find that De Araujo's due process
rights were not violated and the BIA acted properly within its
discretion on his motion to reopen, we dismiss his remaining claims
for lack of jurisdiction.
I.
A. De Araujo's removal proceedings
De Araujo is a native and citizen of Portugal who was
lawfully admitted to the United States on September 4, 1973. He
was six years old at the time. On January 6, 1992, De Araujo was
convicted in Massachusetts state court of assault and battery with
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a dangerous weapon and was sentenced to a two-and-a-half-year term
of imprisonment. See Mass. Gen. Laws ch. 265, § 15.
On April 6, 2000, the Immigration and Naturalization
Service ("INS")1 issued De Araujo a Notice to Appear, charging him
with removability pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C.
§ 1227(a)(2)(A)(iii), for being an alien convicted of an aggravated
felony.2
De Araujo failed to appear at his scheduled hearing
before an Immigration Judge ("IJ") on January 4, 2001 and was
subsequently ordered removed in absentia. However, on April 1,
2001, De Araujo's Massachusetts assault and battery charge was
vacated. He then moved to reopen proceedings on April 2, and the
IJ granted the motion on July 6.
1
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
2
Under its definition of an "aggravated felony," the INA includes
"a crime of violence (as defined in section 16 of Title 18, but not
including a purely political offense) for which the term of
imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F).
In turn, 18 U.S.C. § 16 defines a "crime of violence" as--
(a) an offense that has as an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or
(b) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in
the course of committing the offense.
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On October 3, 2001, the INS amended the original charging
document to include two additional charges of removability. The
first additional charge alleged that De Araujo was removable on
account of a November 7, 1995 Connecticut state conviction for
assault on a Department of Corrections employee for which he
received an eighteen-month sentence of imprisonment. The INS
charged De Araujo with removability for the Connecticut assault
under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), for
being an alien convicted of an aggravated felony.
The second additional charge alleged that De Araujo was
removable because of a January 27, 2000 Massachusetts state
conviction for illegal possession of a controlled substance. It
appears that De Araujo was convicted on the same day for three
different drug charges which had occurred on different days.
Removability for the Massachusetts controlled substance violations
was charged under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)
(2)(A)(iii).3
3
The INS's amendment appears to mis-cite the relevant INA
provisions. The INS charged that De Araujo was subject to removal
under INA § 237(a)(2)(A)(ii) for having been convicted of an
aggravated felony. The appropriate statute for an aggravated
felony, however, is INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). The INS further charged that De Araujo was subject
to removal under INA § 237(a)(2)(A)(iii) for having been convicted
of a controlled substance offense, but the appropriate statute for
a controlled substance offense is INA § 237(a)(2)(B)(i), 8 U.S.C.
§ 1227(a)(2)(B)(i).
-4-
At a hearing before the IJ, De Araujo argued that he was
eligible for cancellation of removal under 8 U.S.C. § 1229b and for
relief under former section 212(c) of the INA, 8 U.S.C. § 1182(c)4
(repealed 1996). The IJ found that De Araujo's Connecticut
conviction for assault on a Department of Corrections employee
constituted a "crime of violence" pursuant to 18 U.S.C. § 16(b) and
therefore qualified as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F), which rendered him ineligible for cancellation of
removal under 8 U.S.C. § 1229b(a)(3).5 In addition, the IJ found
4
Under former section 212(c) of the INA, "aliens lawfully
admitted for permanent residence who temporarily proceed abroad
voluntarily and not under an order of deportation, and who are
returning to lawful unrelinquished domicile of 7 consecutive years,
may be admitted at the discretion of the Attorney General without
regard to certain specified grounds for exclusion." In re Edwards,
20 I. & N. Dec. 191, 194 (BIA 1990). Section 212(c) has been
interpreted to allow discretionary relief for lawful permanent
residents who have not proceeded abroad subsequent to the acts
which rendered them deportable. In re Silva, 16 I. & N. Dec. 26,
30 (BIA 1976). The exercise of discretion requires a balancing of
positive and negative factors in the alien's case to determine
whether relief is warranted. In re Edwards, 20 I. & N. at 195.
De Araujo argued that since his 1995 conviction predated the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546, which repealed
§ 212(c), he remained eligible for relief under former § 212(c).
See INS v. St. Cyr, 533 U.S. 289, 326 (2001) (holding that the
repeal of section 212(c) did not apply retroactively to an alien
who had pled guilty to an aggravated felony prior to the repeal).
Unlike 8 U.S.C. § 1229b, see infra note 5, former section 212 did
not contain the condition that a permanent resident seeking relief
would be statutorily ineligible if the alien was convicted of an
aggravated felony.
5
Under 8 U.S.C. § 1229b(a), the Attorney General may cancel
removal for certain permanent residents found to be inadmissible or
deportable from the United States if the alien–
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that De Araujo's multiple Massachusetts drug convictions rendered
him ineligible for relief under former section 212(c) because the
drug convictions occurred after the passage of IIRIRA and repeal of
section 212(c). The IJ ordered De Araujo removed to Portugal on
February 13, 2002. The IJ noted that De Araujo had a motion
pending to vacate his Massachusetts drug convictions and that, if
his motion was granted, he would become eligible for relief from
removal under former section 212(c).
B. De Araujo's appeal and motions to reopen proceedings with the
BIA
De Araujo filed a timely notice of appeal with the BIA
and on May 8, 2002 requested an extension of time to file his
appellate brief. The BIA granted De Araujo's motion and set a
deadline of June 21. According to De Araujo, his counsel sent the
brief via Federal Express on June 20. However, the brief did not
reach the BIA until June 24, and the BIA rejected the brief as
untimely.6 On July 8, De Araujo filed a motion to accept the late-
filed brief; however, that same day, the BIA dismissed the appeal
for failure to file a brief. De Araujo did not appeal the
(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
(2) has resided in the United States continuously for 7
years after having been admitted in any status, and
(3) has not been convicted of any aggravated felony.
6
Apparently, the wrong zip code had been provided for the BIA's
address, although counsel for De Araujo maintains that the correct
zip code was given to Federal Express.
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dismissal to this Court but instead filed a motion to reconsider
the dismissal with the BIA on July 26. The BIA denied De Araujo's
motion on December 23. On January 23, 2003, De Araujo filed a
motion to reopen his immigration proceedings with the BIA. The BIA
denied this motion on March 7, stating that this motion was "in
essence" a second motion to reconsider and therefore exceeded the
numerical limits on motions to reconsider set forth in 8 C.F.R.
§ 1003.2(b)(2).7
On or about November 17, 2003, De Araujo filed a motion
in Massachusetts state court to vacate his controlled substance
convictions. De Araujo submitted a short affidavit in support of
his motion to vacate, which indicated that he had been unable to
understand the nature and effect of his pleas of guilty because of
his problems with drug addiction.8
On November 19, a Massachusetts state court vacated De
Araujo's drug convictions. The following day, De Araujo filed a
request with the BIA to reopen proceedings sua sponte based on
changed circumstances in his case. De Araujo argued that he should
7
Only one motion to reconsider with the BIA is allotted to each
alien under 8 C.F.R. § 1003.2(b)(2).
8
De Araujo's affidavit consisted of three sentences, stating
I am presently serving time for violation of my
probation. I entered guilty pleas in cases in 1999, and
1998 while I was addicted to both heroin and cocaine. I
was so addicted that when I entered my pleas of guilty,
that the only thing I remember was that I was not going
to jail.
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now be entitled to relief under former section 212(c) because his
drug convictions had been vacated. De Araujo acknowledged that,
under In re Pickering, 23 I. & N. Dec. 621 (BIA 2003), convictions
vacated solely to avoid immigration consequences remain convictions
for INA purposes. He also conceded that the state record was
unclear as to the factual reasons for the state court's decision to
vacate but argued that his affidavit regarding his addiction
suggested that his pleas were not made knowingly or intelligently,
and that the convictions were vacated in response to this
affidavit. De Araujo requested the BIA to invoke its discretionary
authority to reopen the case because of his "clear eligibility for
a 212(c) hearing."
On March 22, 2004, the BIA denied the request to reopen
proceedings sua sponte. The BIA found De Araujo's affidavit in
support of his motion to vacate the Massachusetts convictions to be
"extremely limited in nature" and stated that it would "need more
information before [it] [found] that [the] reason for vacating" was
sufficiently unrelated to the immigration consequences of his
conviction. The BIA further found that De Araujo was "undeserving
of a section 212(c) waiver in the exercise of discretion,"
indicating that even if it were to reopen De Araujo's case, it
would not grant his request for relief. It noted that De Araujo
had previously been convicted of four criminal offenses and, while
three of these had been vacated, none had been vacated because De
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Araujo was not guilty of the crimes committed. The BIA also noted
that, at the time he filed his request to the BIA to reopen
proceedings sua sponte, De Araujo was incarcerated for parole
violations. The BIA concluded that De Araujo's "criminal actions,
and apparent inability to comply with the terms of his probation do
not support the reopening of proceedings to apply for discretionary
relief which we do not believe he merits in the exercise of our
discretion."
C. De Araujo's petition for review
De Araujo filed a timely petition for review with this
Court, claiming (1) that the 1995 Connecticut conviction for
assault against a Department of Corrections employee did not
constitute an aggravated felony, and (2) that the BIA abused its
discretion in failing to reopen his removal proceedings and, in
doing so, violated his constitutional right to due process. De
Araujo v. Ashcroft, 399 F.3d 84, 88-89 (1st Cir. 2005) ("De Araujo
I"). On February 23, 2005, we dismissed the petition for lack of
jurisdiction over either claim. Id. at 89. With regard to the
first argument, we found that "[w]hether [De Araujo's] 1995
conviction . . . did or did not amount to an aggravated felony is
not an issue now open for review" because that order became final
on July 8, 2002, and De Araujo did not appeal that order to this
court within 30 days as required by 8 U.S.C. § 1252(b)(1). Id. at
88-89. We described the 30-day filing deadline as a "strict
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jurisdictional bar," which precluded us from considering his first
argument. Id. at 89. Regarding the second argument, we found that
we lacked jurisdiction to reach De Araujo's other claims on direct
review because he remained removable as an aggravated felon. Id.at 89 (citing INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C)); Emile
v. INS, 244 F.3d 183, 189 (1st Cir. 2001) ("Because [defendant] was
convicted of an aggravated felony, we have no authority to consider
on direct review any other claim once we conclude that he was
legitimately so classified."); Sousa v. INS, 226 F.3d 28, 34 (1st
Cir. 2000) ("[H]aving determined that [the petitioner] is removable
as an aggravated felon, our authority to act in this case with
respect to the removal proceeding, including incidental rulings on
discretionary relief, is at an end.").
D. De Araujo's petition for a writ of habeas corpus and transfer
On May 10, 2005, De Araujo filed a habeas petition in the
United States District Court for the District of Massachusetts.9
However, the passage of the REAL ID Act, § 106, Pub. L. No. 109-13,
119 Stat. 231, 311 (2005), stripped the district court of habeas
jurisdiction. The district court therefore transferred the case
9
Apparently, De Araujo filed yet another motion to reopen with
the BIA on August 30, 2005. He based this motion on 8 C.F.R.
§ 1003.44, which allows eligible aliens to file a special motion
seeking relief under former section 212(c) if the alien pled guilty
to certain crimes before April 1, 1997. The BIA denied this motion
pursuant to 8 C.F.R. § 1003.44(d), which states that aliens
previously denied section 212(c) relief by an IJ or the BIA on
discretionary grounds are not eligible for special reopening. De
Araujo has not appealed this denial.
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back to this Court, where we are to treat De Araujo's claims as
ones for direct review. See REAL ID Act, § 106(c).
II.
A. Jurisdiction over De Araujo's claims under the REAL ID Act
Under the REAL ID Act, a habeas petition to a district
court is transferred to a court of appeals "as if it had been filed
pursuant to a petition for review." REAL ID Act § 106(c); Ishak v.
Gonzáles, 422 F.3d 22, 27 (1st Cir. 2005). In this appeal, De
Araujo renews his claim that his Connecticut conviction is not an
aggravated felony and that is therefore not removable. De Araujo
also contends that the BIA denied him due process by pre-judging
his waiver and refusing to reopen his immigration proceedings to
allow him an opportunity to present evidence in support of his
application for relief under former section 212(c).
1. The aggravated felony
De Araujo's claims mirror those he previously made before
this Court in De Araujo I. In that case, we held that the IJ's
February 12, 2002 ruling that the 1995 Connecticut conviction
constituted an aggravated felony, which rendered De Araujo subject
to removal, became final on July 8, 2002 when the BIA dismissed his
appeal of the IJ's order. De Araujo I, 399 F.3d at 88. See 8
C.F.R. § 1241.1 ("An order of removal made by the immigration judge
at the conclusion of proceedings under section 240 of the Act shall
become final . . . [u]pon dismissal of an appeal by the Board of
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Immigration Appeals"). We noted the "strict jurisdictional
requirement" that, pursuant to 8 U.S.C. § 1252(b)(1), all petitions
for review addressed to this Court from BIA orders must be filed
not later than 30 days after the date of the final order of removal
and dismissed the claim as time-barred. De Araujo I, 399 F.3d at
88 (quoting Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003))
(internal citations and quotation marks omitted). However, under
the REAL ID Act, habeas petitions transferred to the court of
appeals are not subject to the 30-day time limit. See REAL ID Act
§ 106(c) ("The court of appeals shall treat the transferred case as
if it had been filed pursuant to a petition for review under such
section 242 [8 U.S.C. § 1252], except that subsection (b)(1) of
such section shall not apply."); see also Ishak, 422 F.3d at 27.
Thus the "strict jurisdictional requirement" does not apply here.
Moreover, De Araujo properly exhausted his administrative
remedies, giving us jurisdiction over his appeal. It is well-
settled law that a court of appeals may not review an order of
deportation or exclusion unless "the alien has exhausted all
administrative remedies available to the alien as of right." 8
U.S.C. § 1252(d)(1). This exhaustion requirement generally means
that the BIA must first review an IJ's determination of
deportability before a petitioner may present his appeal to us.
Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999) ("Usually
issues not raised before the BIA may not be raised for the first
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time on a petition for review.") (citing Ravindran v. INS, 976 F.2d
754, 761 (1st Cir. 1992)) (citation omitted). Here, De Araujo
filed a Notice of Appeal with the BIA and also stated that he would
file a timely brief, but failed to do so. The BIA therefore
dismissed the appeal. See 8 C.F.R. § 1003.1(d)(2)(i)(E). The BIA
also denied De Araujo's subsequent motion to reconsider the
dismissal of his appeal. It therefore never reviewed De Araujo's
argument regarding the aggravated felony. We were presented with
a similar situation in Athehortua-Vanegas v. INS, 876 F.2d 238 (1st
Cir. 1989). In Athehortua, the BIA summarily dismissed an appeal
where the petitioner filed a timely Notice of Appeal followed by an
untimely brief. We held that the petitioner had exhausted his
administrative remedies. Id. at 240 ("Petitioner did not overlook
the Board, or ignore it, or attempt to appeal directly to the
courts from the IJ's order. . . . [He] went to the BIA, albeit
unsuccessfully. He thereby exhausted the remedy."). Here, we
similarly find that De Araujo has exhausted his administrative
remedies.
The foregoing considerations notwithstanding, however, we
will not address the merits of De Araujo's argument. As discussed
above, the BIA summarily dismissed De Araujo's appeal for failure
to file a brief. In his current appeal, De Araujo does not address
this decision but instead goes straight to the merits of his
aggravated felony argument. De Araujo's only hint at a challenge
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to the summary dismissal occurs in the last paragraph of his brief
where he states that we have jurisdiction to review his claim
because he raised the aggravated felony issue in his "detailed
notice of appeal." He does not argue that raising an issue in his
Notice of Appeal could be enough to withstand a summary dismissal
for failure to file a brief, nor does he ever actually claim that
the BIA erred in dismissing his appeal for failure to file a brief.
We have repeatedly held that "issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) ("It is not enough merely to mention a possible argument
in the most skeletal way, leaving the court to do counsel's work,
create the ossature for the argument, and put flesh on its
bones."); see also Stoll v. Principi, 449 F.3d 263, 267 (1st Cir.
2006) (holding that where a petitioner has not proffered an
argument along certain lines, any such claim has been abandoned).
De Araujo's conclusory statements, without further development, do
not rise to the level of a cognizable appellate argument. Inasmuch
as our review is limited to the BIA's final order (here, summary
dismissal under 8 C.F.R. 1003.1(d)(2)(i)(E)), De Araujo has not
adequately challenged the summary dismissal to preserve the issue,
and we go no further.
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2. Relief under former section 212(c)
De Araujo also contended in De Araujo I that the BIA
deprived him of his constitutional right to due process by refusing
to reopen proceedings because he was not granted a fair opportunity
to establish his eligibility for relief from removal under former
section 212(c) or to present his case to an IJ. Id. We determined
that because we lacked jurisdiction to review De Araujo's claim
that his assault conviction was not an aggravated felony, "he
remains removable on that ground, and we lack jurisdiction to reach
his other claims on direct review." Id. (citing INA § 242(a)
(2)(C), 8 U.S.C. § 1252(a)(2)(C)). Therefore, under pre-REAL ID
Act law, we did not entertain De Araujo's other claims, which he
could instead have presented as a habeas petition in the district
court. However, the REAL ID Act made the courts of appeals the
sole arbiters of final orders of removal or exclusion for both
criminal and non-criminal aliens. See 8 U.S.C. § 1252(b)(2),
amended by REAL ID Act § 106, Pub. L. No. 109-13, 119 Stat. at 310-
11; Ishak, 422 F.3d at 28.
Although relief from removal under former section 212(c)
is a form of discretionary relief over which we generally have no
appellate jurisdiction, the REAL ID Act carved out a narrow
exception to permit the courts of appeals to consider
"constitutional claims" or "questions of law" notwithstanding most
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other jurisdictional bars of the INA.10 See Pub. L. No. 109-13,
§ 106(a)(1)(A)(iii), 119 Stat. 310 (codified at 8 U.S.C. § 1252(a)(2)(D)); Elysee v. Gonzáles, 437 F.3d 221, 223 (1st Cir. 2006)
(citing Mehilli v. Gonzáles, 433 F.3d 86, 92 (1st Cir. 2005)).
"Under the terms of this limited jurisdictional grant,
discretionary or factual determinations continue to fall outside
the jurisdiction of the courts of appeals, and BIA findings as to
timeliness and changed circumstances are usually factual
determinations." Mehilli, 433 F.3d at 93 (internal citations and
quotation marks omitted). A constitutional claim "would at least
have to be colorable" before a court will exercise jurisdiction to
review such a claim or question. Id. at 93-94. In other words, a
"petitioner may not create the jurisdiction that Congress chose to
remove simply by cloaking an . . . argument in constitutional garb
. . . . To be colorable in this context . . . the claim must have
some possible validity." Id. (quoting Torres Aguilar v. INS, 246
10
Under 8 U.S.C. § 1252(a)(2)(B)(i), "except as provided in
subparagraph (D) . . . no court shall have jurisdiction to review
. . . any judgment regarding the granting of [discretionary] relief
to removable aliens under section 212(h), 212(i), 240A, 240 B, or
245 [8 U.S.C.S. §§ 1182(h), 1182(i), 1229b, 1229c, or 1255].
Subparagraph (D) was added by the REAL ID Act to read:
Nothing in subparagraph (B) or (C), or in any other
provision of [the Immigration and Nationality Act](other
than this section) 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 filed with an appropriate court of
appeals in accordance with this section.
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F.3d 1267, 1271 (9th Cir. 2001)). Therefore, we review De Araujo's
due process claims to determine whether they are indeed colorable
constitutional issues.
B. Analysis of De Araujo's due process claims
To state a due process claim, an alien must possess a
liberty or property interest. Board of Regents v. Roth, 408 U.S.
564, 569-71 (1972). The Supreme Court has long held that a
permanent resident alien is protected under the Fifth Amendment and
entitled to due process in the form of notice of the charges
against him and a deportation hearing. Kwong Hai Chew v. Colding,
344 U.S. 590, 596-98 (1953); Choeum v. INS, 129 F.2d 29, 38-40 (1st
Cir. 1997) ("It is well established that the Fifth Amendment
entitles aliens to due process of law in deportation proceedings.
At the core of these due process rights is the right to notice of
the nature of the charges and a meaningful opportunity to be
heard."). However, an alien does not have a constitutionally
protected interest in receiving discretionary relief from removal
or deportation. United States v. López-Ortiz, 313 F.3d 225, 231
(5th Cir. 2002). The Attorney General's suspension of deportation
is "an act of grace, which is accorded pursuant to his [or her]
unfettered discretion." INS v. Yueh-Shaio Yang, 519 U.S. 26, 30
(1996) (internal citations and quotations omitted). Further, a
constitutionally protected interest in receiving relief cannot
arise from relief that the Attorney General has unfettered
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discretion to award. See Fernández Pereira v. Gonzáles, 417 F.3d
38, 46 (1st Cir. 2005) ("Congress is not required to provide
aggravated felons with an avenue for discretionary relief from
deportation, and currently does not do so.").
Moreover, while an alien may raise as a constitutional or
legal claim arising from "the refusal of [an] agency to even
consider him" for discretionary relief, "he may not challenge the
agency's decision to exercise or not exercise its discretion to
grant relief." Saint Fort v. Ashcroft, 329 F.3d 191, 203 (1st Cir.
2003) (citing Carranza v. INS, 277 F.3d 65, 71 (1st Cir. 2002));
Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003) ("A right to
seek relief is analytically separate and distinct from a right to
the relief itself.").
Here, the BIA clearly considered De Araujo for
discretionary relief. The BIA received and read De Araujo's
request to reopen proceedings sua sponte, and after considering the
merits of De Araujo's motion, the BIA found that it did not support
the reopening of proceedings in the exercise of the BIA's
discretion. The BIA based its decision that De Araujo was
"undeserving of a section 212(c) waiver in the exercise of
discretion" on his four criminal convictions and "apparent
inability to comply with the terms of his probation." In addition,
the BIA considered but did not find sufficient evidence from De
Araujo's "extremely limited" affidavit that his convictions were
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not vacated simply to avoid immigration consequences, which would
render him ineligible to be considered for former section 212(c)
relief. 8 C.F.R. 1003.2(c)(1) ("A motion to reopen proceedings for
the purpose of submitting an application for relief must be
accompanied by . . . all supporting documentation."); see also In
re Pickering, 23 I. & N. Dec. at 625. On these facts, De Araujo
raises no colorable constitutional claim of a due process
violation.
Nor has De Araujo raised a question of law for our
review. We lack jurisdiction to review the BIA's discretionary
denial of section 212(c) relief in this case. See 8 U.S.C. § 1252(a)(2)(B); see also Elysee, 427 F.3d at 244 (holding that attacks
on the balancing of factors engaged in by the IJ before deciding
not to grant discretionary relief were not constitutional claims or
questions of law). Furthermore, "the decision of the BIA whether
to invoke its sua sponte authority is committed to its unfettered
discretion." Prado v. Reno, 198 F.3d 286, 292 (1st Cir. 1999).
Thus, "it is at least arguable that our review of this challenge
would in all events be barred because we lack authority to review
issues committed to the agency's unfettered discretion." Roberts
v. Gonzáles, 422 F.3d 33, 37 n.2 (1st Cir. 2005) (citing Heckler v.
Chaney, 470 U.S. 821, 821 (1985)). In any case, we find that we
are precluded from reviewing De Araujo's claims.
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III.
We affirm the summary dismissal of De Araujo's appeal by
the BIA, and dismiss his remaining claims for lack of jurisdiction.
Dismissed.
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