     Case: 12-60936       Document: 00512357592         Page: 1     Date Filed: 08/29/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 29, 2013
                                     No. 12-60936
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

HOMERO GARCIA-REYES,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A070 290 810


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Homero Garcia-Reyes, a native and citizen of Mexico, has filed a petition
for review of the order of the Board of Immigration Appeals (BIA) dismissing his
appeal from the immigration judge’s (IJ) order of removal and discretionary
denial of cancellation of removal. The basis for Garcia-Reyes’s removal was his
guilty plea conviction in Texas for possession of more than 2,000 pounds of
marijuana.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-60936

      Garcia-Reyes first contends that the BIA violated his due process rights
by considering a draft report by the Texas Department of Public Safety which
indicated that he was observed unloading the marijuana underlying his
conviction.   According to Garcia-Reyes, that report was unreliable and
untrustworthy such that its admission as evidence violated his due process right
to a fundamentally fair hearing. We have jurisdiction to review constitutional
claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
      “The test for admissibility of evidence in a deportation proceeding is
whether the evidence is probative and whether its use is fundamentally fair so
as not to deprive the alien of due process of law.” Bustos-Torres v. INS, 898 F.2d
1053, 1055 (5th Cir. 1990). The disputed report satisfied this test, and Garcia-
Reyes’s petition for review is denied as to this issue.           To the extent
Garcia-Reyes’s complaints about the report attack the weight it was afforded by
the BIA and IJ, his arguments amount to a challenge to the ultimate decision to
deny discretionary relief, an issue we lack jurisdiction to review.           See
§ 1252(a)(2)(B)(i).
      In his second issue, Garcia-Reyes contends that the BIA committed three
legal errors in finding that he was not rehabilitated after his marijuana
conviction: (1) the BIA erroneously treated his assertions of factual innocence
regarding that conviction as the basis for finding that he was not rehabilitated;
(2) the BIA erred in finding that he had not presented substantial evidence of his
rehabilitation; and (3) the BIA failed to give proper deference to the decision of
the Board of Pardons and Paroles of the Texas Department of Criminal Justice
to grant Garcia-Reyes parole. While Garcia-Reyes frames his arguments as legal
challenges, we look past an alien’s characterization of an issue and determine
whether his arguments actually seek review of the discretionary decision to deny
cancellation of removal. See Falek v. Gonzales, 475 F.3d 285, 289 & n.2 (5th Cir.
2007); Delgado-Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir. 2006).
Garcia-Reyes’s arguments simply contest the weight given by the BIA and IJ to

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                                No. 12-60936

different pieces of evidence concerning the issue of rehabilitation.        His
arguments amount to an attempt to challenge the BIA’s and IJ’s balancing of the
factors relevant to the discretionary decision to deny cancellation of removal.
Accordingly, we lack jurisdiction to review his arguments, and his petition for
review is dismissed with respect to this issue for lack of jurisdiction. See
§ 1252(a)(2)(B)(i).
      DISMISSED IN PART FOR LACK OF JURISDICTION; DENIED IN
PART.




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