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

                                  TENTH CIRCUIT                             September 12, 2012

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
LUIS ALONSO RIVERA-ORTIZ,

             Petitioner,
                                                              No. 11-9530
v.                                                        (Petition for Review)

ERIC H. HOLDER, JR., United States
Attorney General,

             Respondent.



                             ORDER AND JUDGMENT*


Before LUCERO, HARTZ, and O'BRIEN, Circuit Judges.


                                            I

      In June 1994, Luis Alonso Rivera-Ortiz, a lawful permanent resident, pled guilty

to both sexual abuse of a child and forcible sexual abuse under Utah law for the sexual

abuse of his stepdaughter. By all accounts, he is a model of reformation. The state


      *
         Oral argument would not materially assist the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). We have decided this case on the briefs.
        This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
district court sentenced him to a 1-15 year term of imprisonment, but stayed the sentence

pending the satisfactory completion of 90 days in jail. Because of good behavior, he was

released after 60 days. He complied fully with a ten-year sex-offender registration

requirement. He has not committed any new offenses in the 12 years that have passed

since his conviction. He has remarried the victim’s mother and reconciled with the

victim. The victim even testified that she now trusts him to babysit her own children.

       Nevertheless, in 2006, the Immigration and Nationalization Service (INS) began

proceedings to deport Rivera-Ortiz to his native El Salvador because his crimes of sexual

abuse qualified as aggravated felonies under the Immigration and Nationality Act. See 8

U.S.C. § 1227(a)(2)(A)(iii) (2006).

       In proceedings before an immigration judge (IJ), Rivera-Ortiz conceded his crime

was an aggravated felony subjecting him to removal. However, he sought discretionary

relief—a waiver of inadmissibility—from the IJ under former § 212(c) of the

Immigration and Nationalization Act, see 8 U.S.C. § 1182(c).1 The IJ acknowledged his

reformation, his family ties in the United States, and even his family’s reliance on his

employment income. Nevertheless, the IJ concluded the gravity of Rivera-Ortiz’s crime

outweighed these positive equities. The IJ was particularly motivated by the betrayal of

trust inherent in Rivera-Ortiz’s crime, given his role as the victim’s stepfather. The IJ

also concluded Rivera-Ortiz’s crime was particularly grave because he had “engaged in

       1
         Although § 212(c) (formerly 8 U.S.C. § 1182) was repealed in 1996, its
“broader relief . . . remain[s] available, on the same terms as before, to an alien whose
removal is based on a guilty plea entered before [its] repeal.” Judulang v. Holder, 132 S.
Ct. 476, 481 (2011) (citing INS v. St. Cyr, 533 U.S. 289 (2001)).


                                            -2-
an increasingly serious sexual relationship with his stepdaughter culminating in multiple

instances of intercourse.” (R. at 202.)

       Pertinent to this conclusion was a police report regarding the sexual abuse. At the

hearing before the IJ, Rivera-Ortiz objected to the accuracy and reliability the police

report. According to the report, he began abusing his stepdaughter when she was six

years old and he continued doing so until she reached 14. The abuse included weekly

intercourse and was accompanied by threats to kill the stepdaughter and her mother if the

abuse were revealed. Rivera-Ortiz has steadfastly denied these allegations, and, indeed,

his stepdaughter’s testimony confirmed his denials. As Rivera-Ortiz tells us, the abuse

never included intercourse and did not start until the stepdaughter was nine years old. He

also denies ever threatening to kill anyone.

       In response to Rivera-Ortiz’s objection, the IJ acknowledged the “degree” of the

“sexual contact” could be disputed. (R. at 203.) Yet, because of other testimony

corroborating the significant details of the police report, the IJ noted his decision to deny

discretionary relief would not change even if the police report had not been admitted.

       Rivera-Ortiz appealed from that denial to the Board of Immigration Appeals

(BIA). In his appeal, he argued the IJ erred in considering the police report to assess the

gravity of his crimes. The BIA did not explicitly address this argument in its order.

Rather, the BIA’s order framed the issue in more general terms as a review of the IJ’s

denial of discretionary relief. Acting through an individual member, the BIA dismissed

Rivera-Ortiz’s appeal in a “brief order affirming” pursuant to 8 C.F.R. § 1003.1(e)(5).

The BIA acknowledged the “substantial equities” in Rivera-Ortiz’s petition for

                                               -3-
discretionary relief, but concluded the IJ “properly weighed the positive factors in this

case against [Rivera-Ortiz’s] egregious criminal behavior.” (R. at 3.)

       In conjunction with his appeal, Rivera-Ortiz filed a “Motion to Submit Evidence

and Request Remand.” In the motion, he requested to present evidence not previously

available to the IJ about his “serious kidney disease.” (R. at 15.) He also reported filing

a state-court petition challenging his conviction on the ground that the immigration

consequences had not been adequately disclosed to him. The motion conceded, however,

that “the convictions have not yet been overturned.” (R. at 19.) The BIA denied the

motion. It reasoned the conviction “remained valid for immigration purposes,” and the

health-related evidence did not establish “that the grant of a section 212(c) waiver . . .

would be in the interests of the United States.” (R. at 3-4.)

                                              II

       Rivera-Ortiz now petitions this court for review of the BIA’s dismissal of his

appeal. He contends the BIA violated his due process rights when it failed to explicitly

discuss his argument that the IJ erred in considering the police report. In his view, had

the BIA duly considered the issue, it would have concluded the IJ erred in denying him

discretionary relief. Rivera-Ortiz’s argument rests on faulty factual and legal premises.

       As a factual matter, Rivera-Ortiz mistakenly equates the BIA’s lack of discussion

of his argument as a lack of consideration. The BIA resolved his arguments in a

disposition by brief order as contemplated under 8 C.F.R. § 1003.1(e)(5). See Uanreroro

v. Gonzales, 443 F.3d 1197, 1203-04 (10th Cir. 2006). In such a case, the BIA’s

disposition becomes the final order of removal subject to our review. Id. Nevertheless,

                                             -4-
dispositions by brief order may adopt the IJ’s reasoning. Uanreroro, 443 F.3d at 1204;

see Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007) (we may affirm “on

grounds raised in the IJ decision [if] they are relied upon by the BIA in its affirmance”).

Here, the BIA agreed with the IJ’s resolution of the case without supplying its own

findings or analysis. By choosing to adopt the IJ’s findings and analysis, including the

IJ’s rejection of his arguments related to the police report, the BIA duly considered the

issue.2

          As a legal matter, Rivera-Ortiz received all the process he was constitutionally due

when he received his notice and opportunity to be heard before the IJ. There is no

constitutional due-process right to appeal from the IJ’s decision. See Tsegay v. Ashcroft,

386 F.3d 1347, 1353 (10th Cir. 2004). The BIA’s order therefore complied with the

requirements of constitutional due process.

                                               III

          Rivera-Ortiz’s challenges to the IJ’s decision to deny discretionary relief are

beyond our jurisdiction. Our jurisdiction to review a denial of discretionary relief is

limited to “constitutional claims or questions of law.” 28 U.S.C. § 1252(a)(2); see also

Ballesteros v. Ashcroft, 452 F.3d 1153, 1156 (10th Cir. 2006). We review those claims

and questions de novo. Rivera Barrientos v. Holder, 658 F.3d 1222, 1226 (10th Cir.

2011).


          2
          When the BIA takes this approach, we can directly review—to the extent review
is not otherwise precluded—those aspects of the IJ’s analysis incorporated in the BIA’s
order. See Uanreroro, 443 F.3d at 1204; Sidabutar, 503 F.3d at 1123.


                                               -5-
       Rivera-Ortiz argues the IJ applied an impermissible “categorical legal bar” against

discretionary relief, as evinced by the IJ’s statement: “What the Court finds particularly

troubling in these types of cases is the position of trust that [Rivera-Ortiz] found himself

in.” (R. at 166 (emphasis added).) Even if the IJ had done so, however, Rivera-Ortiz

cites no statutes, rules, or cases prohibiting the IJ from taking a categorical approach to

discretionary relief. Thus, in the absence of some statute or regulation prohibiting the IJ

from using a categorical approach, we have neither jurisdiction to review the IJ’s exercise

of discretion nor any legal basis to declare this practice improper. See 8 U.S.C.

§ 1252(a)(2)(B) & (D) (stripping the courts of jurisdiction to review a denial of

discretionary relief except as to “constitutional claims [and] questions of law”). Section

1252(a)(2) also forecloses any inquiry into whether, as Rivera-Ortiz argues, the IJ abused

his discretion in denying relief or relied on clearly erroneous factfinding.3


       3
          Even if we were to review the IJ’s factfinding, we would conclude it is amply
supported by the evidence in the record. The police report the government introduced as
an exhibit stated Rivera-Ortiz had “began having intercourse with her at age 9” and that
“the victim stated intercourse happened on a weekly basis.” (R. at 574.) In addition,
Rivera-Ortiz’s wife testified that Rivera-Ortiz was “having sex with her” daughter. (R. at
360.) Similarly, Rivera-Ortiz admitted the abuse included sexual intercourse in the
following exchange between the IJ and Rivera-Ortiz at the hearing:

       Q. [By the IJ]: Okay. So it -- you testified earlier that the abuse began
       when you just began to inappropriate [sic] touch her, fondle her?
       A. [By Rivera-Ortiz]: Yes.
       Q. How many weeks after the abuse did it start to become intercourse?
       A. I don't remember. I think it could be, it could be years, Your Honor.
       Q. So you -- when did you -- at what age did you first have intercourse
       with [the victim]?
       A. I think -- I believe she was 10, 11, if I remember right.
       Q. Now, when you touched her, did you -- before you had intercourse,
       would you ask her to do things to you?

                                            -6-
                                           IV

      Section 1252(a)(2) likewise forecloses review of the BIA’s denial of Rivera-

Ortiz’s motion to reopen and remand his case to the IJ for new evidence about his

medical condition and his state-court conviction. The regulation governing motions to

reopen does not specify any conditions under which it must be granted. Matter of

Coelho, 20 I.&N. Dec. 464, 471 (B.I.A. 1992) (citing INS v. Wang, 450 U.S. 139, 143 n.5

(1981)). Thus, the regulation leaves the decision to the BIA’s discretion, which moves it

outside our jurisdiction to review. See 8 U.S.C. § 1252(a)(2).

      The petition for review is DENIED. Petitioner’s motion to proceed in forma

pauperis is GRANTED.

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




      A. No.
      Q. You just touched her?
      A. Yes.
      Q. And so for how many times total, if you were to estimate, did you have
      intercourse with your stepdaughter?
      A. I, I don't really recall the number, more than 20, I think. I wouldn't
      recall the number on that one.

(R. at 317-18.) While there is also evidence showing the abuse did not include sexual
intercourse, the evidence in support of the IJ’s decision provided the “substantial
evidence” necessary to sustain the IJ’s factfinding. See Rivera Barrientos v. Holder, 658
F.3d 1222, 1226 (10th Cir. 2011).


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