          United States Court of Appeals
                      For the First Circuit

No. 13-1264

                          EVELYN LOPEZ,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., Attorney General,

                           Respondent.


                 PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS


                              Before

                        Lynch, Chief Judge,
                Stahl and Kayatta, Circuit Judges.


     Allan M. Tow on brief for petitioner.
     Melissa Neiman-Kelting, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, U.S. Department of Justice,
Stuart F. Delery, Assistant Attorney General, Civil Division, and
M. Jocelyn Lopez Wright, Senior Litigation Counsel, Office of
Immigration Litigation, on brief for respondent.



                         January 17, 2014
          LYNCH, Chief Judge. Evelyn Lopez petitions for review of

a January 30, 2013 Board of Immigration Appeals ("BIA") decision,

adopting a June 14, 2011 decision by an Immigration Judge ("IJ"),

ordering removal. It also denied her requests for waivers based on

"extreme hardship," 8 U.S.C. § 1186a(c)(4)(A), and "good faith,"

id. § 1886a(c)(4)(B), of the joint-filing requirement for removal

of conditions on permanent residency, id. § 1186a(c)(1)(A), both

because she had failed to establish either "good faith" or "extreme

hardship" and because the petition was denied in any event, in an

exercise of the IJ's discretion, due to concerns with petitioner's

moral character.   That exercise of discretion dooms her petition.

          Because Lopez raises no colorable legal or constitutional

claims and review is barred, the petition is dismissed for want of

jurisdiction.   Id. § 1252(a)(2)(B).

                                I.

          Petitioner Evelyn Lopez was admitted or paroled into the

United States on March 3, 1995, having previously entered the

country in 1993 before returning to the Dominican Republic.

Petitioner is the mother of two children.    Her daughter was born

and has continued to live in the Dominican Republic.      Her son,

Edgar Rodriguez, is a United States citizen, born August 21, 1995.

In May 1996, she married Andres Lopez, a United States citizen.

Evelyn Lopez adjusted her status to that of a permanent resident on




                                -2-
a conditional basis in January 1997, but that status was terminated

two years later.

              On February 16, 1999, Evelyn Lopez and Andres Lopez filed

a joint Form I-751 Petition to Remove Conditions on Residence

("Form I-751" or "petition").         The petition was denied on May 15,

2004, after Andres Lopez failed to appear for the interview.               See

8 U.S.C. § 1186a(c)(2)(A)(ii). The Department of Homeland Security

("DHS") issued Evelyn Lopez a Notice to Appear ("NTA") later that

day, charging her with removability based on the termination of her

conditional permanent resident status.             Id. § 1227(a)(1)(D)(i).

The couple divorced shortly thereafter.

              Petitioner admitted the factual allegations in the NTA

and conceded removability through written pleadings in October

2004. In March 2005, with removal proceedings ongoing, Lopez filed

a    second   Form   I-751   with   the   United   States    Citizenship    and

Immigration Services ("USCIS"), a branch of DHS, requesting a

discretionary waiver of the applicable joint-filing requirement,

see id. § 1186a(c)(1)(A) (requiring that "the alien spouse and the

petitioning spouse (if not deceased) jointly . . . submit to the

Secretary of Homeland Security . . . a petition" requesting removal

of    conditions     on   permanent   residency),     on    the   ground   that

termination of her permanent resident status and removal would

cause "extreme hardship," id. § 1886a(c)(4)(A), in part on the

basis of her son's educational needs. USCIS denied the petition on


                                      -3-
September 11, 2006, noting, inter alia, that petitioner had over

$1,000,000     in    assets,   which    would    facilitate      her     obtaining

educational assistance for her son should he return with her to the

Dominican Republic.

             Petitioner filed a third Form I-751 with USCIS on June

12, 2007, this time requesting a discretionary waiver on the ground

that her marriage had been entered into "good faith" and was

terminated through divorce.            Id. § 1886a(c)(4)(B).             After an

interview, USCIS denied Lopez's third petition on June 12, 2009,

reasoning     that   she   had    provided      contradictory     or     otherwise

unreliable evidence of cohabitation and inadequate evidence of

shared financial assets.           Petitioner requested review by the

immigration court of both USCIS denials.             See 8 C.F.R. § 216.5(f).

             On November 5, 2009, Evelyn Lopez pled guilty to theft by

unauthorized    taking,    N.H.    Rev.      Stat.   Ann.   §   637:3,    after   a

shoplifting arrest in November 2007. Lopez received a twelve-month

suspended sentence, a $500 fine, and 50 hours of community service.

The state court later reduced petitioner's suspended sentence to

364 days.

             The IJ conducted an individual hearing on the denial of

the Form I-751s, first on March 14, 2011, and again on April 25 of

that year.     There, Evelyn Lopez testified as to her "good faith"

waiver request that she first met Andres Lopez in December 1993 at

a friend's house in New York.          She said that the two did not have


                                       -4-
a relationship at the time because she was still in a relationship

with her son's father, Luis Emilio Rodriguez.          Petitioner claimed

that Luis Rodriguez -- who, she later learned, was married to

someone else -- left her because of the pregnancy.                Petitioner

explained that she and Andres Lopez met again at a party in 1995

while she was still pregnant.             The two began dating shortly

thereafter, she said, deciding to marry after a courtship of four

months.

          Petitioner testified that, once married, she and Andres

Lopez moved together to 117 Jamaica Ave. in New York in May 1996.

She first said that she first moved in with Andres Lopez in 1994 or

1995, but then, contradicting herself, said that the two did not

live together until 1996.   Petitioner claimed that after about two

years at 117 Jamaica Ave., she and Andres Lopez moved to 8788

Jamaica Ave., where the couple remained for one year.               Neither

lease was in the record.    In December 1997, she said, she moved to

Massachusetts after accepting a new job, but this contradicted her

written   statement,   in   which    she     said    that   she   moved     to

Massachusetts   in   December   1998.       When    confronted    with    this

discrepancy, petitioner said that whoever prepared the written

statement had made a mistake.        Petitioner testified that Andres

Lopez moved with her to Massachusetts and that his name was on the

lease at her first Massachusetts address, but put no lease in the

record.   Petitioner said that Andres Lopez returned to New York


                                    -5-
shortly   after    moving,      but    that     he    would    travel    by     bus   to

Massachusetts     to    see    her    every    week    for    four     years.      This

contradicted      her   written       testimony      that     Andres    Lopez     never

relocated from New York.             Petitioner said that she saved travel

receipts, but that she could not produce them because the receipts

were destroyed by flooding resulting from a storm.

             Petitioner testified that she and Andres Lopez filed

taxes jointly from 1996 until 2001, by which point the relationship

had broken down.1       The federal tax returns she produced for 1997,

1998, and 1999 were missing the signature page.                  The Massachusetts

tax returns for 1998 and 1999 were also unsigned.

             Gloryvee Santana testified on petitioner's behalf, saying

Evelyn and Andres Lopez seemed like a "normal couple."                          Santana

claimed to have attended several birthday parties and a wedding

with the two.      She also said she did not think that Andres Lopez

had   ever    lived     in    Massachusetts,         contradicting      petitioner's

testimony.

             As to "extreme hardship," petitioner provided evidence

that her son, a public high school student, was enrolled in special

classes due to his diagnosed learning disability, and that he

cannot speak Spanish very well.                Initially, petitioner said she



      1
        Petitioner testified that she did not initiate divorce
proceedings until 2004 and that those proceedings were finalized in
2006. A divorce decree dated January 31, 2005 was entered into the
administrative record.

                                         -6-
would not be able to bring her son with her to the Dominican

Republic due to lack of resources.            On cross-examination, she said

he would have to come with her.

              When questioned about the substantial assets documented

in the September 11, 2006 USCIS denial, petitioner testified that

she   lost    all   of   her    investments   due   to   foreclosures    on   her

properties, that she had no property or bank accounts in the

Dominican Republic, and that she had no property in the United

States.      Petitioner provided no evidence establishing the loss of

value of her investments.

              Petitioner also provided testimony about her arrest and

conviction, which was contradicted in part by the official record,

as noted by the IJ.

              On June 14, 2011, the IJ denied petitioner's Form I-751

waiver requests.         We summarize the holdings.         As to petitioner's

theft   conviction,       because    the   state    court    had    reduced   her

conviction to 364 days, the crime of conviction was not for an

"aggravated felony."           8 U.S.C. § 1101(a)(43)(G).      This meant she

could apply for the discretionary waiver relief.                   But the "good

faith" waiver was denied because she did not show that she and

Andres Lopez had an "intent to establish a life together" at the

time they were married.          See Rodriguez v. I.N.S., 204 F.3d 25, 27

(1st Cir. 2000) (adopting and applying "intent to establish a life

together" standard in reviewing BIA's determination that petitioner


                                       -7-
failed to establish that he had married in good faith).                The IJ

further concluded that petitioner had not shown that the hardship

she and her son would suffer if she were removed qualified as

"extreme."     Further, the IJ commented that the record did not

support the claim she had lost her considerable assets, and she

could use those assets to alleviate any burdens.

             Last,   the   IJ   noted    that   both   waivers   requested   by

petitioner were discretionary.            8 U.S.C. § 1186a(c)(4).       In an

exercise of discretion, the IJ separately denied petitioner's

requests, citing "moral character concerns that arise due to the

[petitioner]'s theft conviction and lack of candor regarding the

conviction."

                                        II.

             "[W]hen the BIA adopts the decision of the IJ, we review

the IJ's decision directly."            Kinisu v. Holder, 721 F.3d 29, 34

(1st Cir. 2013). Before we do that, we must satisfy ourselves that

we have jurisdiction.       See Calderón-Serra v. Wilmington Trust Co.,

715 F.3d 14, 17 (1st Cir. 2013).                 But we do not here have

jurisdiction, due to restrictions Congress has placed on judicial

review.

             The Immigration and Nationality Act, 8 U.S.C. §§ 1101 et

seq., provides:

             [N]o court shall have jurisdiction to review
             . . . any . . . decision or action of the
             Attorney General or the Secretary of Homeland
             Security the authority for which is specified

                                        -8-
          under this subchapter to be in the discretion
          of the Attorney General or the Secretary of
          Homeland Security, other than the granting of
          relief under section 1158(a) of this title.

Id. § 1252(a)(2)(B); cf. Ortega v. Holder, 736 F.3d 637, 640 (1st

Cir. 2013) ("Purely discretionary decisions or determinations by

the BIA . . . fall beyond the review of the appellate courts.").2

The statute in turn commits to the discretion of the Secretary of

Homeland Security whether to grant a waiver on the basis of "good

faith" or "extreme hardship."   8 U.S.C. § 1186a(c)(4).

          The IJ separately denied petitioner's requests for a

waiver in an exercise of discretion, expressing concern with

petitioner's criminal record and evident lack of candor regarding

her conviction.   Petitioner makes no effort to explain why this is

not the end of the matter.      Instead, petitioner simply insists

that, properly weighted, the evidence in the record establishes

"good faith" and "extreme hardship."

          The statute explains that no provision barring 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."      Id. § 1252(a)(2)(D).

Petitioner, however, raises no such "claims" or "questions" here.3


     2
       8 U.S.C. § 1158(a) pertains to applications for asylum and
is not relevant here.
     3
        In her petition, Lopez argues that the BIA and the IJ
failed to "consider with adequate weight" the evidence presented
that the marriage was entered into in "good faith," 8 U.S.C.

                                -9-
Instead, she "relitigates whether the factors relevant to . . .

discretionary relief were appropriately weighed by the IJ and BIA,"

and that is not a colorable legal or constitutional claim.

Urizar-Carrascoza v. Holder, 727 F.3d 27, 32 (1st Cir. 2013);

accord De Araujo v. Gonzales, 457 F.3d 146, 155 (1st Cir. 2006);

Elysee v. Gonzales, 437 F.3d 221, 223-24 (1st Cir. 2006).      The

statute's jurisdictional bar applies here.4

                               III.

          Evelyn Lopez's petition for review is dismissed for lack

of jurisdiction.




§ 1886a(c)(4)(A), and that return to the Dominican Republic would
cause "extreme hardship," id. § 1886a(c)(4)(A). More specifically,
petitioner complains that the IJ and the BIA erred by "assigning an
inordinate amount of weight" to her arrest and conviction and
"insufficient weight" to, inter alia, the difficulty her son would
have adjusting if he were to join petitioner in the Dominican
Republic.
     4
        To the extent Lopez's brief attempts to make arguments not
presented to the Board, including those by analogy to forms of
relief she did not request, we are barred from considering them
because they were not presented to the agency. Rebenko v. Holder,
693 F.3d 87, 93 (1st Cir. 2012).

                               -10-
