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

                                                 FILED
                                                                           March 23, 2009
                                     No. 08-60029
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

MODESTO RODOLFO HARVEY GUTIERREZ

                                                   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. A36 047 452


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Modesto Rodolfo Harvey Gutierrez (Harvey Gutierrez), a native and
citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA)
discretionary denial of his application for cancellation of removal and order of
removal.
       We lack jurisdiction to review the denial of cancellation of removal or the
final order of removal. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(C). To the extent



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 08-60029

Harvey Gutierrez’s petition seeks review of these determinations, the petition
is dismissed for lack of jurisdiction.
       However, we have jurisdiction to consider constitutional claims and
questions of law.    § 1252(a)(2)(D).    For the reasons stated below, Harvey
Gutierrez’s petition raising such claims and questions is denied.
       Harvey Gutierrez’s claim that he was denied a full and fair hearing with
the facts fully developed is belied by the record and is waived by his failure to
raise it below. See Zhang v. Gonzales, 432 F.3d 339, 346 (5th Cir. 2005).
       Harvey Gutierrez asserts that “the differential treatment of African
Caribbean[]s under current immigration policies violates the Equal Protection
Provision of the Due Process Clause” and that the BIA acted contrary to law and
in violation of due process by failing to consider his pending citizenship
application. These conclusional arguments are not adequately briefed and thus
are waived. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008).
We do not construe Harvey Gutierrez’s assertion, made without supporting
argument or citation to the record, that the BIA should have considered his
pending citizenship application as a nationality claim that would require this
court’s action under 8 U.S.C. § 1252(b)(5).
       Harvey Gutierrez has waived any challenge to the BIA’s rejection of his
late-filed brief by failing to brief the issue adequately and by stating that the
BIA “acted reasonably and within its discretion in denying [his] motion to
rebuttal government counsel claim.” See Chambers, 520 F.3d at 448 n.1. To the
extent he argues that the BIA failed to address a change-in-law argument,
Harvey Gutierrez fails to point to any such argument that he raised before the
BIA.
       Although he contends that “[t]he Immigration Courts acted contrary to law
by rendering a decision which failed to consider the hardship factors
cumu[la]tively,” Harvey Gutierrez does not identify any evidence of hardship
that the BIA failed to consider, cumulatively or otherwise. Thus, he has not

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shown legal error. To the extent he argues that the BIA erred in balancing the
adverse and favorable factors, that is a challenge to the discretionary decision,
and we lack jurisdiction to review such a challenge. See § 1252(a)(2)(B).
      Harvey Gutierrez also contends that the BIA violated procedural due
process and abused its discretion by failing to provide a reasoned explanation of
its decision. This argument is unsupported by the record. To the extent he
argues that he was not informed of, or given a hearing regarding, relief for which
he was eligible, this argument is also belied by the record.
      Harvey Gutierrez’s motion to incorporate by reference the arguments he
made in his brief to the BIA is denied. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
      PETITION DISMISSED IN PART AND DENIED IN PART; MOTION
DENIED.




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