                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                           April 27, 2016
                       _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
NORMA GURROLA ONTIVEROS,

      Petitioner,

v.                                                         No. 15-9529
                                                       (Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,

      Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before GORSUCH, MATHESON, and MORITZ, Circuit Judges.
                 _________________________________

      Norma Gurrola Ontiveros petitions for review of the Board of Immigration

Appeals’ denial of her application for relief from removal. She challenges the BIA’s

affirmance of an immigration judge’s holding that she failed to demonstrate she was

not married at common law on June 8, 1992—a determination which, as we explain

below, makes Petitioner ineligible for adjustment of status.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Because Petitioner is a criminal alien, we have jurisdiction to review her

contentions only to the extent that she raises “constitutional claims or questions of

law.” 8 U.S.C. § 1252(a)(2)(D). We dismiss her petition for lack of jurisdiction

because Petitioner’s claims either aren’t reviewable under § 1252(a)(2)(D) or she

failed to exhaust them before the BIA, see id. § 1252(d)(1).

I.     Background

       Petitioner, a native and citizen of Mexico, entered the United States without

inspection in 1986. She was convicted in Colorado state court in 1997 of criminal

attempt to commit trafficking in food stamps. In 2010, the Department of Homeland

Security served Petitioner with a notice to appear seeking her removal1 as an alien

(1) present in the United States without being admitted or paroled and (2) convicted

of a crime involving moral turpitude. See 8 U.S.C. §§ 1182(a)(6)(A)(i),

(a)(2)(A)(i)(I). Having admitted the factual allegations in the notice to appear and

conceded removability, she sought relief from removal. She applied for adjustment

of status to lawful permanent resident under 8 U.S.C. § 1255, based upon a visa

petition filed on her behalf in 2009 by one of her daughters, who is a United States

citizen.2



       1
        Petitioner had previously applied to United States Citizenship and
Immigration Services for adjustment of status and a waiver of inadmissibility. After
USCIS denied her application, DHS commenced these removal proceedings.
      2
        Petitioner also applied for a waiver of her inadmissibility resulting from her
Colorado conviction. See 8 U.S.C. § 1182(h) (permitting the Attorney General to
waive inadmissibility for aliens convicted of crimes of moral turpitude).

                                           2
      An alien ordinarily must have been “inspected and admitted or paroled into the

United States” to adjust her status under § 1255. Id. § 1255(a). Because Petitioner

entered the United States without inspection, she relies on an exception to this

requirement, claiming eligibility as an alien who, among other conditions, is the

beneficiary of a visa petition that was filed with the Attorney General on or before

April 30, 2001. See id. § 1255(i)(1)(B)(i). A qualifying visa petition serves to

“grandfather” the alien beneficiary’s ability to apply for adjustment of status, but it

must have been properly filed on or before the statutory deadline and “approvable

when filed.” 8 C.F.R. § 1245.10(a)(1)(i)(A). “Approvable when filed” means that

the visa petition was “properly filed, meritorious in fact, and non-frivolous” on the

filing date and under the circumstances existing at that time. Id. § 1245.10(a)(3).

      To support her status as a grandfathered alien, Petitioner points to a visa

petition that her mother, a lawful permanent resident, filed on her behalf in June

1992. The parties agree that Petitioner was eligible as the beneficiary of that petition

if she was the unmarried daughter of a lawful permanent resident. See 8 U.S.C.

§ 1153(a)(2)(B) (providing a visa category for unmarried sons and daughters of

lawful permanent residents). Thus, her mother’s visa petition was approvable when

filed if Petitioner was unmarried in June 1992.

      At a hearing before the IJ, the Petitioner sought to show she was unmarried in

June 1992. DHS, on the other hand, presented evidence indicating Petitioner and

Jose Alfredo Gomez were common-law married under Colorado law at that time. In

reviewing the evidence, the IJ pointed to Petitioner’s statements and submissions to

                                            3
the government regarding the existence and length of her marriage to Gomez, as well

as their six children’s use of Gomez’s surname. Ultimately, the IJ found that

Petitioner had “created an ambiguous situation” and consequently hadn’t met her

burden to show she was unmarried in June 1992. Admin. R. at 67. Because she

couldn’t satisfy all of the eligibility requirements for adjustment of status under

§ 1255, the IJ ordered Petitioner removed.

      In her appeal to the BIA, Petitioner focused on Colorado precedent requiring

clear, consistent, and convincing evidence to prove a common-law marriage. Because

the IJ characterized the evidence here as ambiguous, Petitioner contended the

evidence could not have satisfied Colorado’s high evidentiary standard. Thus, she

reasoned that the IJ clearly erred in finding she was in a common-law marriage as of

June 1992.

      But the BIA disagreed with her premise, concluding that regardless of the

burden of proof required to establish a common-law marriage under Colorado law,

Petitioner bore the burden to establish her eligibility for relief in immigration

proceedings. After reciting the IJ’s factual findings, the BIA found no clear error in

the IJ’s “ultimate factual determination” that Petitioner was common-law married at

the time her mother filed the visa petition on her behalf in June 1992. Admin. R. at

6.

      Petitioner timely filed a petition for review from the BIA’s dismissal of her

appeal. Because a single member of the BIA affirmed the IJ’s denial of Petitioner’s

application for relief from removal in a brief order, we review the BIA’s order rather

                                             4
than the IJ’s decision. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.

2006). Before us, Petitioner asserts that the BIA erred by reviewing for clear error,

rather than de novo, the IJ’s legal conclusion that she was in a common-law marriage

in June 1992, and by failing to require that evidence of a Colorado common-law

marriage be clear, consistent, and convincing. She further argues that the BIA’s

findings are not supported by substantial evidence, and that the BIA misrepresented

the record and ignored evidence in violation of her due process right to be heard in a

meaningful manner. Finally, she contends that the BIA erred in concluding that she

failed to meet her burden of proof to show by a preponderance of the evidence that

she was eligible for adjustment of status.

II.   Jurisdiction

      “We have jurisdiction to determine our jurisdiction.” Diallo v. Gonzales,

447 F.3d 1274, 1281 (10th Cir. 2006) (internal quotation marks omitted). Our

jurisdiction over this petition for review is limited in two respects. First, because

Petitioner is a criminal alien, we can review only “constitutional claims or questions

of law.” 8 U.S.C. § 1252(a)(2)(D); see also id. § 1252(a)(2)(C) (otherwise

precluding review of final removal orders against aliens removable by reason of

having committed certain criminal offenses). Second, we lack jurisdiction to review

claims that Petitioner didn’t exhaust before the BIA. Akinwunmi v. INS, 194 F.3d

1340, 1341 (10th Cir. 1999) (per curiam).




                                             5
      A.     Constitutional Claims or Questions of Law

      As a preliminary matter, the Attorney General argues that Petitioner raises no

constitutional claim or question of law over which we have jurisdiction. In her reply

brief, Petitioner responds that she raises two questions of law. In Diallo, we

construed “questions of law,” as used in § 1252(a)(2)(D), to mean “a narrow category

of issues regarding statutory construction,” 447 F.3d at 1282 (internal quotation

marks omitted), rather than “all claims having a legal dimension,” id. at 1281.

Nevertheless, Petitioner maintains this rule isn’t “completely inflexible,” Pet. Reply

Br. at 5, and she asserts that we have jurisdiction over claims that “‘touch upon’”

matters of statutory construction, id. (quoting Lorenzo v. Mukasey, 508 F.3d 1278,

1282 (10th Cir. 2007)). And, according to Petitioner, the issue whether she was

married at common law in Colorado in June 1992 presents a legal question because it

requires application of the Colorado evidentiary standard to the relevant factual

findings. But while this issue may possess some legal dimension, it neither presents

nor touches upon matters of statutory construction. Therefore, we conclude this

claim doesn’t fall within the narrow parameters of a “question of law” reviewable

under § 1252(a)(2)(D).

      Petitioner also suggests that she presents a reviewable question of law with her

claim that the BIA failed to comply with its governing regulation by reviewing the

IJ’s legal determinations de novo under 8 C.F.R. § 1003.1(d)(3)(ii). She maintains

that the BIA erred in reviewing for clear error the IJ’s determination that she was in a

common-law marriage in June 1992. In support, Petitioner points out that in

                                           6
Lorenzo, we reviewed an alien’s claim that DHS failed to comply with a regulatory

procedure. See 508 F.3d at 1282-83. But we need not decide whether Petitioner’s

claim presents a question of law because, as we explain below, Petitioner didn’t

exhaust this claim before the BIA.

      Lastly, to the extent that Petitioner argues her constitutional claim presents a

reviewable claim under § 1252(a)(2)(D), we are not persuaded that her contentions

amount to a reviewable due process claim. “An alien in removal proceedings is

entitled only to the Fifth Amendment guarantee of fundamental fairness, or in other

words, only to procedural due process, which provides the opportunity to be heard at

a meaningful time and in a meaningful manner.” Alzainati v. Holder, 568 F.3d 844,

851 (10th Cir. 2009) (internal quotation marks and alteration omitted).

      Petitioner argues that the BIA’s decision is not supported by substantial

evidence and that its “misrepresentations of the evidentiary record and failure to

address significant evidence favorable to [her] constitute a failure to hear her case in

a meaningful manner in violation of her due process rights.” Pet. Opening Br. at 37.

But “[a]n alien does not present a colorable constitutional claim capable of avoiding

the jurisdictional bar by arguing that the evidence was incorrectly weighed,

insufficiently considered, or supports a different outcome.” Kechkar v. Gonzales,

500 F.3d 1080, 1084 (10th Cir. 2007) (holding challenges to the agency’s factual

findings “cloaked in constitutional garb” are outside the scope of our judicial review

under § 1252(a)(2)(D)); see also Alzainati, 568 F.3d at 851-52 (noting an argument

that the IJ failed to explicitly consider certain evidence is properly viewed as a

                                            7
substantial-evidence argument, rather than a constitutional challenge).3 Similarly,

Petitioner’s weight-of-the-evidence arguments in this case don’t state a “colorable

constitutional claim” subject to our jurisdiction. Alzainati, 568 F.3d at 851.

      B.     Exhaustion of Remedies

      Even if Petitioner has raised a question of law in her petition, we lack

jurisdiction to review her contention because she failed to raise it before the BIA.

We can review a final order of removal only if “the alien has exhausted all

administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).

We lack jurisdiction to consider unexhausted claims. Akinwunmi, 194 F.3d at 1341.

One important purpose of this rule is “to give the agency the opportunity to correct

its own errors.” Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010).

      To exhaust some claims, a petitioner must bring them before the BIA in a

motion to reopen or reconsider. See Sidabutar v. Gonzales, 503 F.3d 1116, 1122

(10th Cir. 2007). In Sidabutar, we held that the petitioners failed to exhaust their

procedural challenges to the BIA’s allegedly de novo fact-finding. Id. We concluded

that these claims “should have been brought before the BIA in the first instance




      3
         Petitioner argues in her reply brief that she also challenges the BIA’s
wholesale failure to consider certain evidence, which if credited, would require
reversal of the BIA’s decision. She asserts that this error implicates due process.
See Alzainati, 568 F.3d at 851. But she didn’t raise this allegation of constitutional
error in her opening brief and we decline to consider it. See Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (declining to consider argument not raised in
opening brief).

                                           8
through a motion to reconsider or reopen,” and the petitioners’ failure to do so

deprived us of jurisdiction to review the claims. Id.

      Here, we ordered the parties to file supplemental briefs addressing whether

Petitioner exhausted her claim that the BIA failed to comply with 8 C.F.R.

§ 1003.1(d)(3)(ii) by reviewing the IJ’s legal determination de novo. Petitioner

responded that she raised that claim in her BIA appeal by identifying the applicable

standards of review under the regulations. She argues that the BIA acknowledged

those standards but nonetheless erred by reviewing a legal issue for clear error.4 We

are not persuaded that by reciting the standards of review in her BIA appeal brief,

Petitioner sufficiently exhausted the claim of error she raises in her petition: that the

BIA misapplied those standards in its decision. See Garcia-Carbajal, 625 F.3d at

1237 (“[A]n alien must present the same specific legal theory to the BIA before he or

she may advance it” in this court.).

      Moreover, our holding in Sidabutar required Petitioner to first raise this claim

with the BIA in a motion to reconsider or reopen. Petitioner attempts to distinguish

Sidabutar, noting that it addressed exhaustion in a circumstance where the BIA sua

sponte considered an issue not raised by the petitioner. But Sidabutar also reaffirmed

the principle that when an issue is neither raised by a petitioner nor considered sua

sponte by the BIA, the petitioner has failed to exhaust and we lack jurisdiction. See



      4
      Petitioner ignores that she argued in her BIA appeal brief that the IJ
“committed a clear error.” Admin. R. at 24.

                                            9
503 F.3d at 1122 (declining to review unraised claims of error that the BIA had not

substantively addressed sua sponte).

      Because Petitioner fails to raise any claim that is reviewable under

§ 1252(a)(2)(D) and that she exhausted before the BIA, we dismiss her petition for

review for lack of jurisdiction.

                                           Entered for the Court



                                           Nancy L. Moritz
                                           Circuit Judge




                                         10
