            Case: 16-16635   Date Filed: 10/13/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16635
                         Non-Argument Calendar
                       ________________________

                        Agency No. A037-178-693



EDUARDO A. JULIEN,

                                                                       Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                             (October 13, 2017)

Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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       Eduardo Julien seeks review of the Board of Immigration Appeals’ (BIA)

final order affirming the Immigration Judge’s (IJ) denial of his application for a

waiver of inadmissibility. Julien asserts the IJ misstated and misapplied the

holding from the BIA’s decision in Matter of Buscemi, 19 I&N Dec. 628 (BIA

1988), and the IJ wrongly balanced the equities in his case. Julien also contends

substantial evidence did not support the IJ’s adverse credibility finding. After

review, we dismiss in part and deny in part.

                                       I. DISCUSSION

A. Jurisdiction

       Under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review any final

removal order against an alien who is removable by reason of having committed,

among other things, an aggravated felony, as defined by 8 U.S.C. § 1101(a)(43),

under 8 U.S.C. § 1227(a)(2)(A)(iii). Moreover, we also lack jurisdiction to review

decisions regarding removability that have been left to the discretion of the

Attorney General. 8 U.S.C. § 1252(a)(2)(B)(ii). A decision to grant or deny a

waiver of inadmissibility 1 is left to the discretion of the Attorney General. Arias v.

U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007).


       1
           Under former 8 U.S.C. § 1182(c), lawful permanent residents who were removable
due to certain criminal convictions were eligible for a discretionary waiver of inadmissibility.
See 8 U.S.C. § 1182(c). Although this statute was effectively repealed in 1990, it remains
available to aliens “whose convictions were obtained through plea agreements and who,
notwithstanding those convictions, would have been eligible for § [1182(c)] relief at the time of
their plea under the law then in effect.” INS v. St. Cyr, 533 U.S. 289, 296, 326 (2001).
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      If a statutory bar to review applies, we nonetheless retain jurisdiction to

consider constitutional challenges and questions of law arising out of the alien’s

removal proceedings. See 8 U.S.C. § 1252(a)(2)(D). An alien has no

constitutional right to discretionary relief or to be eligible for discretionary relief

from removal. See, e.g., Balogun v. U.S. Att’y Gen., 304 F.3d 1303, 1311 (11th

Cir. 2002). A petitioner must allege a colorable constitutional violation to

overcome the jurisdictional bar, otherwise, we do not have jurisdiction over

discretionary relief. Arias, 482 F.3d at 1284.

      We generally lack jurisdiction to review Julien’s order of removal because

he was ordered removed based on his conviction for an aggravated felony, as

defined in 8 U.S.C. § 1227(a)(2)(iii). See 8 U.S.C. § 1252(a)(2)(C). Thus, to the

extent Julien asserts the IJ did not properly weigh the facts in his case, he makes a

“garden-variety” abuse of discretion argument over which this Court lacks

jurisdiction. See Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196-97 (11th

Cir. 2008) (explaining a “garden-variety abuse of discretion argument” the IJ failed

to properly weigh the factual scenario the alien presented does not preset a legal

question). We dismiss Julien’s petition as to his abuse of discretion argument.

      We also lack jurisdiction to review the IJ’s credibility determination because

Julien is removable as an alien convicted of an aggravated felony, and 8 U.S.C.

§ 1252(a)(2)(C) strips courts of jurisdiction to review orders of removal as to such


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aliens. We have jurisdiction to review only constitutional claims and questions of

law, and as such, cannot review Julien’s argument challenging the IJ’s adverse

credibility conclusion, which is a factual determination. See Ruiz v. U.S. Att’y

Gen., 440 F.3d 1247, 1254-55 (11th Cir. 2006) (providing we review factual

determinations, which include credibility determinations, under the substantial

evidence test). Accordingly, we dismiss the petition in this respect.

B. Matter of Buscemi

      Julien also contends the IJ misstated and misapplied the holding in Matter of

Buscemi. This is a question of law over which we have jurisdiction. 8 U.S.C.

§ 1252(a)(2)(D).

      In Matter of Buscemi, the BIA held when deciding whether to grant a waiver

of inadmissibility, an IJ must consider all of the facts and circumstances involved,

and must balance the social and human considerations presented in an alien’s favor

against the adverse factors evidencing his flaws as a permanent resident. Matter of

Buscemi, 19 I&N Dec. 628, 633 (1988). The BIA further explained “as negative

factors grow more serious, it becomes incumbent upon the alien to introduce

additional offsetting favorable evidence, which in some cases may have to involve

unusual or outstanding equities.” Id. The BIA noted such a heightened showing is

required for where an alien has been convicted of a serious drug offense, or “may

be mandated because of a single serious crime.” Id. at 633-34. The BIA also


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noted even where an alien demonstrates unusual and outstanding equities exist,

such a showing does not compel the IJ to exercise that discretion in his favor. Id.

at 634.

      The IJ, in denying Julien’s request for waiver of inadmissibility, concluded

that, pursuant to Matter of Buscemi, he must establish unusual and outstanding

equities to outweigh his manslaughter conviction, which the IJ determined was a

violent crime and “a powerful adverse factor.” The IJ then provided a detailed

explanation of the facts, and explained why Julien had not presented equities

sufficient to outweigh his manslaughter conviction, and denied his request for

relief. While Julien is correct that Matter of Buscemi does not categorically require

that all waiver of inadmissibility applicants establish unusual or outstanding

equities, the BIA’s decision makes clear that should the IJ decide an alien’s prior

conviction is serious, then the alien can be made to establish unusual or

outstanding equities to warrant relief from removal. See Matter of Buscemi, 19

I&N Dec. at 633-34. The IJ specifically concluded Julien’s manslaughter

conviction was a very violent and serious offense, and thus, it was proper for the IJ

to require he demonstrate unusual and outstanding equities in support of his

request for a waiver of inadmissibility. See id. The IJ made no legal error in its

application of Matter of Buscemi. Accordingly, we deny the petition in this

respect.


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                         II. CONCLUSION

Accordingly, we dismiss in part, and deny in part.

Petition DISMISSED in part, and DENIED in part.




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