                                                      FILED: July 21, 2011

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 10-1431


REYNALDO SORCIA,

                  Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,


                  Respondent.




                                  O R D E R


    The   court    amends   its    opinion    filed    July   1,   2011,   by

changing the date on page 6, line 13, to March 18, 2010.



                                        For the Court


                                               /s/ Patricia S. Connor

                                                        Clerk
                        PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


REYNALDO SORCIA,                        
                          Petitioner,
                v.
                                            No. 10-1431
ERIC H. H OLDER, JR., Attorney
General,
                       Respondent.
                                        
              On Petition for Review of an
       Order of the Board of Immigration Appeals.

                 Argued: March 23, 2011

                     Decided: July 1, 2011

     Before MOTZ and WYNN, Circuit Judges, and
    Ronald Lee GILMAN, Senior Circuit Judge of the
   United States Court of Appeals for the Sixth Circuit,
                  sitting by designation.



Dismissed by published opinion. Judge Wynn wrote the opin-
ion, in which Judge Motz and Senior Judge Gilman joined.
2                      SORCIA v. H OLDER
                         COUNSEL

ARGUED: H. Glenn Fogle, Jr., THE FOGLE LAW FIRM,
LLC, Atlanta, Georgia, for Petitioner. Michael Christopher
Heyse, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent. ON BRIEF: Tony West,
Assistant Attorney General, Civil Division, Mary Jane Can-
daux, Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Respondent.


                          OPINION

WYNN, Circuit Judge:

   It is axiomatic that a court lacking subject matter jurisdic-
tion over an appeal must dismiss the case. Petitioner Reynaldo
Sorcia ("Sorcia") asks this Court to review the decision of the
Board of Immigration Appeals ("BIA") to deny (1) his peti-
tion for cancellation of removal and (2) his motion to reopen
removal proceedings so that he could pursue cancellation of
removal after an adjustment of status for which he had an
application pending. However, because Sorcia raises no con-
stitutional claims or questions of law, we lack jurisdiction to
review the discretionary denial of cancellation of removal. 8
U.S.C. § 1252(a)(2)(B). Further, because the BIA based its
denial of Sorcia’s motion to reopen on a determination that
Sorcia did not merit the discretionary relief of cancellation of
removal, we also lack jurisdiction to review the denial of the
motion. See Obioha v. Gonzales, 431 F.3d 400, 406 (4th Cir.
2005). Accordingly, the appeal is dismissed.

                               I.

  Sorcia is a citizen of Mexico. He became a temporary resi-
dent of the United States on November 16, 1988 and a lawful
                          SORCIA v. H OLDER                            3
permanent resident on December 1, 1990. On February 5,
2007, he was placed in removal proceedings following the fil-
ing of a Notice to Appear with the Immigration Court. 1 He
was charged with removability pursuant to 8 U.S.C.
1227(a)(2)(E)(i), which states that "[a]ny alien who at any
time after admission is convicted of a crime of domestic vio-
lence . . . is deportable."

   Sorcia appeared before an Immigration Judge ("IJ") in
Atlanta, Georgia, and admitted that he had been convicted of
three offenses: (1) misdemeanor domestic violence on Febru-
ary 10, 1997; (2) misdemeanor assault and battery on April
14, 1997; and (3) misdemeanor domestic violence on Novem-
ber 3, 2003. In light of the domestic violence convictions,
Sorcia conceded his removability, and the IJ found by clear
and convincing evidence that Sorcia was removable.

   Thereafter, Sorcia petitioned the IJ for cancellation of
removal. Because Sorcia had not been convicted of an aggra-
vated felony and had resided in the United States for more
than 16 years after becoming a lawful permanent resident, he
was statutorily eligible for cancellation of removal. Under 8
U.S.C. § 1229b(a),

      [t]he Attorney General may cancel removal in the
      case of an alien who is inadmissible or deportable
      from the United States if the alien-

      (1) has been an alien lawfully admitted for perma-
      nent residence for not less than 5 years,

      (2) has resided in the United States continuously for
      7 years after having been admitted in any status, and
  1
   "Jurisdiction vests, and proceedings before an Immigration Judge com-
mence, when a charging document is filed with the Immigration Court by
the Service." 8 C.F.R. § 1003.14(a).
4                           SORCIA v. H OLDER
        (3) has not been convicted of any aggravated felony.

Nonetheless, even where statutory eligibility is established, an
IJ retains discretion to grant or deny an application for cancel-
lation of removal, and the applicant must establish that he
warrants the relief sought. In re C-V-T, 22 I. & N. Dec. 7
(BIA 1998).

   "[T]here is no inflexible standard for determining who
should be granted discretionary relief, and each case must be
judged on its own merits." Id. at 11 (citing In re L-, 3 I. & N.
Dec. 767, 770 (BIA 1949)). In applying his discretion, the IJ
must "balance the adverse factors evidencing an alien’s unde-
sirability as a permanent resident with the social and humane
considerations presented in his behalf to determine whether
the granting of section 212(c) relief appears in the best inter-
est of this country." In re Marin, 16 I. & N. Dec. 581, 584
(BIA 1978), abrogated on other grounds by In re Edwards,
20 I. & N. Dec. 191 (BIA 1990); see also In re C-V-T, 22 I.
& N. Dec. at 11 (finding the Marin balancing test appropriate
when considering requests for cancellation of removal under
8 U.S.C. § 1229b(a)).2

  The IJ noted that Sorcia’s twenty-year residency in the
United States constituted a "significant positive equity"

    "Among the factors deemed adverse to a respondent’s application have
    2

been . . . the existence of a criminal record and, if so, its nature, recency,
and seriousness, and the presence of other evidence indicative of a respon-
dent’s bad character or undesirability as a permanent resident of this coun-
try." Marin, 16 I. & N. Dec. at 584. "Favorable considerations have been
found to include such factors as family ties within the United States, resi-
dence of long duration in this country (particularly when the inception of
residence occurred while the respondent was of young age), evidence of
hardship to the respondent and family if deportation occurs, service in this
country’s Armed Forces, a history of employment, the existence of prop-
erty or business ties, evidence of value and service to the community,
proof of a genuine rehabilitation if a criminal record exists, and other evi-
dence attesting to a respondent’s good character (e.g., affidavits from fam-
ily, friends, and responsible community representatives)." Id. at 584-85.
                       SORCIA v. H OLDER                         5
weighing in favor of cancellation of removal. The IJ also
found that Sorcia’s family ties to citizens of the United States
and/or lawful permanent residents constituted a "positive fac-
tor." Moreover, the IJ found that Sorcia’s history of steady
employment weighed in his favor.

   However, Sorcia’s criminal history weighed against him.
The court observed that Sorcia’s past criminal actions all
involved violence and had twice involved the use of firearms.
Further, Sorcia had attempted to minimize his responsibility
for his offenses. Also, given that Sorcia’s convictions
occurred over a period of years, the IJ opined that they dem-
onstrated a "propensity to resort to violence." The court addi-
tionally noted that Sorcia had failed to pursue treatment for
anger management to address this "propensity."

   The IJ also considered "collaterally" the fact that Sorcia
had been charged with committing a lewd act on a minor,
despite the fact that this charge had not been prosecuted. The
IJ further considered as "an additional significant negative
factor" that Sorcia engaged in tax fraud. The court concluded
that:

    [A]n individual who was given the grace of this
    nation by making him a lawful permanent resident
    and [has responded] by repeatedly engaging in vio-
    lent activities that endanger both his family and other
    individuals in this nation and has filed demonstrably
    fraudulent tax returns is not deserving of a favorable
    exercise of the Court’s discretion . . . .

The IJ accordingly denied Sorcia’s request for cancellation of
removal by order of February 4, 2009. Sorcia appealed to the
BIA.

   The BIA issued a decision dismissing Sorcia’s appeal. Like
the IJ, the BIA opined that Sorcia’s length of residence in the
United States, family ties in this country, and steady employ-
6                      SORCIA v. H OLDER
ment history all weighed in his favor. After considering the
equitable factors weighing in Sorcia’s favor, the BIA opined
that Sorcia’s "criminal history and lack of rehabilitation out-
weigh the favorable factors in this case." The BIA concluded
that Sorcia’s criminal history indicated an increased likeli-
hood that he would "have future encounters with the criminal
justice system and an adverse impact on the safety of his fam-
ily and community." Notably, the BIA expressly disavowed
reliance on either the charge of committing a lewd act on a
minor or Sorcia’s questionable tax history. Reasoning that it
would not be in the best interests of the United States to grant
Sorcia cancellation of removal, the BIA dismissed his appeal
on March 18, 2010. In the same decision, the BIA denied Sor-
cia’s motion to reopen his removal proceedings.

   On April 12, 2010, Sorcia petitioned this Court for review
of the BIA’s decision. The government filed a motion to dis-
miss, or in the alternative, transfer the petition. The govern-
ment sought dismissal on the grounds that venue was
improper in this Circuit under 8 U.S.C. § 1252(b). Alterna-
tively, the government requested this Court to transfer the
case to the Eleventh Circuit pursuant to 28 U.S.C. § 1631.
Before turning to the merits of Sorcia’s case, we address the
government’s motion.

                               II.

   The government’s motion to dismiss relied on 8 U.S.C.
§ 1252(b)(2), which states that a "petition for review [of an
order of removal] shall be filed with the court of appeals for
the judicial circuit in which the immigration judge completed
the proceedings." For reasons unique to the procedural history
of this case, the parties dispute where the IJ completed the
proceedings. Sorcia maintains that the proceedings were com-
pleted in Charlotte, North Carolina. The government argues
that the proceedings were completed in Atlanta, Georgia.
                              SORCIA v. H OLDER                                 7
   Even assuming that Sorcia chose incorrectly when he
appealed the BIA’s decision to this Court, that error would
not deprive this Court of subject matter jurisdiction. While we
have not previously addressed the issue, courts in other cir-
cuits have unanimously held that § 1252(b)(2) is a nonjuris-
dictional venue provision. See Avila v. U.S. Atty. Gen., 560
F.3d 1281, 1284 (11th Cir. 2009); Moreno-Bravo v. Gonzales,
463 F.3d 253, 262 (2d Cir. 2006); Georcely v. Ashcroft, 375
F.3d 45, 49 (1st Cir. 2004); Nwaokolo v. I.N.S., 314 F.3d 303,
306 n.2 (7th Cir. 2002) (per curiam); cf. Jama v. Gonzales,
431 F.3d 230, 233 (5th Cir. 2005) (per curiam) (refusing to
raise the nonjurisdictional venue issue sua sponte);        Bonho-
metre v. Gonzales, 414 F.3d 442, 446 n.5 (3d Cir. 2005).3 This
conclusion is not surprising, insofar as § 1252(b)(2) is titled
"Venue and forms." Also, the statute says nothing about "ju-
risdiction." See Moreno-Bravo, 463 F.3d at 259 ("In view of
the extraordinary attention Congress directed toward federal
jurisdiction over petitions for review in § 1252, . . . it is hard
for us to believe that the legislature would then neglect to
express a similarly clear intent—or any intent at all—to cir-
cumscribe jurisdiction . . . ."). Without hesitation, we join the
six circuits concluding that § 1252(b)(2) is a nonjurisdictional
venue provision. Accordingly, we decline the government’s
motion to dismiss this appeal based solely on Sorcia’s failure
to comply with § 1252(b)(2).4
  3
     Indeed, he government expressly conceded in its brief that
§ 1252(b)(2) is not jurisdictional.
   4
     As stated succinctly by the Seventh Circuit:
      Provisions specifying where a suit shall be filed, as distinct from
      specifying what kind of court or other tribunal it shall be filed in,
      are generally considered to be specifying venue rather than juris-
      diction. It would be usurpative for a federal court to assert juris-
      diction over a case that the Constitution or statute had consigned
      to a state court, or even for a federal district court to assert juris-
      diction over a case that should have been brought in a federal
      court of appeals . . . . But it is not usurpative for one federal court
      of appeals to assert jurisdiction . . . over a case that it would have
8                          SORCIA v. H OLDER
   In the alternative, the government requests that this case be
transferred to the Eleventh Circuit. The government cites a
statute providing:

     Whenever . . . an appeal, including a petition for
     review of administrative action, is noticed for or
     filed with such a court and that court finds that there
     is a want of jurisdiction, the court shall, if it is in the
     interest of justice, transfer such action or appeal to
     any other such court in which the action or appeal
     could have been brought at the time it was filed or
     noticed, and the action or appeal shall proceed as if
     it had been filed in or noticed for the court to which
     it is transferred on the date upon which it was actu-
     ally filed in or noticed for the court from which it is
     transferred.

28 U.S.C. § 1631 (emphasis added). However, as explained
above, the failure to comply with § 1252(b)(2) does not affect
our jurisdiction over Sorcia’s petition, so arguably § 1631 is
inapplicable to cure failures to comply with that venue provi-
sion. See Moreno-Bravo, 463 F.3d at 263 ("The case          sub
judice, of course, does not involve § 1631 because we do in
fact have jurisdiction to consider the merits, being concerned
only with venue and convenience."). Some courts have
reached the opposite conclusion, however, essentially reason-
ing that "jurisdiction" as used in § 1631 was not meant to
have a strictly technical meaning, and could also address
transfer for lack of venue. Rodriguez-Roman v. INS, 98 F.3d
416, 424 (9th Cir. 1996) ("[F]or purposes of the transfer stat-
ute, a court lacks jurisdiction if venue does not lie.").

    been authorized to adjudicate if only the effects of the order
    sought to be reviewed had been felt in one part of the country
    rather than another.
State of New York v. Envtl. Prot. Agency, 133 F.3d 987, 990 (7th Cir.
1998).
                        SORCIA v. H OLDER                        9
   We hold that § 1631, which speaks exclusively of jurisdic-
tion, does not mandate transfer where venue is lacking. How-
ever, this does not mean that we lack authority to transfer
cases when we have jurisdiction but lack venue. Although the
authority to transfer a case under § 1631 exists only when the
transferring court lacks jurisdiction, courts have inherent
power to transfer cases over which they have jurisdiction but
not venue. See Dornbusch v. C.I.R., 860 F.2d 611, 611-14
(5th Cir. 1988) (per curiam); Alexander v. C.I.R., 825 F.2d
499, 501 (D.C. Cir. 1987). In Dornbusch, the Fifth Circuit
analyzed cases decided prior to the enactment of § 1631 and
noted that no court "which expressly addressed the matter
held that it had no authority to transfer a case, over which it
had jurisdiction but lacked venue, to another court of appeals
having both jurisdiction and venue." 860 F.2d at 613-14 (col-
lecting cases). Likewise, we follow this reasoning and hold
that where we have jurisdiction but lack venue, we have
inherent authority to transfer a case to another circuit where
both venue and jurisdiction exist. However, we further con-
clude that in the exercise of such inherent authority it is
appropriate, as in the related § 1631 context, to consider
whether the "interest of justice" mandates transfer.           See
Moreno-Bravo v. Gonzales, 463 F.3d at 263. Here, we con-
clude that it would not be in the "interest of justice" to transfer
this case to the Eleventh Circuit for several reasons.

  First, Sorcia’s confusion regarding where the proceedings
were completed is understandable. After the proceedings
began in Atlanta, Sorcia moved to change venue to Charlotte.
The IJ denied the motion but later stated

    as you know, we’re opening a court in Charlotte on
    November the 4th. Given that we’ve already gotten
    into this, I’m going to keep this on my docket. I will
    leave it up to you whether you wish to appear in
    Court or whether you want to appear in Charlotte via
    televideo.
10                     SORCIA v. H OLDER
Notice was sent to Sorcia’s counsel indicating that a hearing
would take place on February 4, 2009, in Atlanta. On Decem-
ber 15, 2008, a letter was sent to Sorcia’s counsel indicating
that "the location of the hearing has been changed" to Char-
lotte. Sorcia’s counsel contacted the IJ in Atlanta, mentioning
the change of location letter and stating that he preferred "to
be present in Atlanta with my client and his family instead of
Charlotte." Sorcia’s counsel thus filed a second motion for
change of venue with the Charlotte Court. On January 12,
2009, the Atlanta Immigration Court received this second
change of venue motion and rejected it. On February 2, 2009,
the IJ in Atlanta issued an order stating "Counsel and respon-
dent may appear in Atlanta. DHS may appear either in person
or via televideo from Charlotte."

    The February 4, 2009, hearing—the final hearing on the
merits—was conducted in Atlanta, with the government par-
ticipating via videoconference from Charlotte. Indeed, the IJ
stated "the Court [is] sitting in Atlanta." Yet, the transcript
heading for that hearing indicated the "place" as Charlotte,
North Carolina. Even the heading of the "Order of the Immi-
gration Judge" indicated the location of the Immigration
Court in Charlotte—though that conflicted with the statement
in the order explaining "if the proceedings should be appealed
. . . the oral decision will become the official opinion in this
case." The oral decision was undisputedly issued from
Atlanta. After viewing these facts as a composite, we con-
clude that Atlanta is the location where the proceedings were
completed. See Ramos v. Ashcroft, 371 F.3d 948, 949 (7th
Cir. 2004) (holding that even when teleconferencing takes
place, immigration proceedings are completed "where the
court is located and the order is issued"). Nevertheless, under
these convoluted circumstances, it is understandable that Sor-
cia was confused as to the place of completion.

   Further, because the matter has been thoroughly briefed
and orally argued before this Court, we are reluctant to force
the parties to relitigate in the Eleventh Circuit. Cf. Bonho-
                           SORCIA v. H OLDER                             11
metre, 414 F.3d at 446 n.5 ("[G]iven that this case has been
thoroughly briefed and argued before us, and given that Mr.
Bonhometre has waited a long time for the resolution of his
claims, we believe it would be a manifest injustice to now
transfer his case to another court for duplicative proceed-
ings."); accord Moreno-Bravo, 463 F.3d at 263. Moreover,
"‘whether or not the suit has any possible merit bears signifi-
cantly on whether the court should transfer,’ and if it does not,
the court should not waste the time of another court by trans-
ferring the matter." Id. at 263 (quoting Phillips v. Seiter, 173
F.3d 609, 610-11 (7th Cir. 1999)). The weakness of Sorcia’s
argument on the merits, discussed below, further counsels
against transferring his petition to the Eleventh Circuit.
   Finally, we are unpersuaded by the government’s assertion
that litigating this case in the Eleventh Circuit would be more
convenient. The government’s primary argument is that the
BIA cited an Eleventh Circuit case for a proposition in its
decision. Specifically, the BIA cited Naijar v. Ashcroft, 257
F.3d 1262 (11th Cir. 2001), to support the statement that a
motion to remand must include a demonstration of prima
facie eligibility for the relief sought. The government over-
looks the fact that a federal regulation, 8 C.F.R.
§ 1003.2(c)(1), and a decision by the Supreme Court of the
United States, INS v. Abudu, 495 U.S. 94, 104 (1988), were
cited by the BIA in support of the same proposition. Further,
that same proposition is supported by Fourth Circuit case law.
See Hussain v. Gonzales, 477 F.3d 153, 157 (4th Cir. 2007).
We therefore find the government’s argument regarding con-
venience unavailing.
   In sum, we deny the government’s motion to dismiss or
transfer this matter on the basis of improper venue. 5 We turn
now to the merits of Sorcia’s appeal.
   5
     The government warns that failing to transfer this case would render
the venue statute nugatory and invite forum shopping. This argument
overlooks the case-specific factors, and particularly Sorcia’s justifiable
confusion regarding where these proceedings were completed, underpin-
ning our decision to keep this case in this Circuit. Nothing in our approach
should be construed as an indication to future petitioners whose cases
were completed elsewhere that we will exercise our discretion to hear their
cases.
12                       SORCIA v. H OLDER
                                 III.

                                 A.

   Sorcia first argues that the IJ "did not properly weigh [Sor-
cia’s] favorable and adverse equities" before denying the
requested cancellation of removal. Brief of Petitioner at 10.
The government argues that we do not have jurisdiction to
review this discretionary decision. We agree.

     The government correctly points to a statute stating that:

       Notwithstanding any other provision of law (statu-
       tory or nonstatutory), including section 2241 of Title
       28, or any other habeas corpus provision, and sec-
       tions 1361 and 1651 of such title, and except as pro-
       vided in subparagraph (D), and regardless of whether
       the judgment, decision, or action is made in removal
       proceedings, no court shall have jurisdiction to
       review—

           (i) any judgment regarding the granting of
           relief under section . . . 1229b . . . of this
           title.

8 U.S.C. § 1252(a)(2)(B). Subparagraph (D) clarifies that
"[n]othing in subparagraph (B) . . . shall be construed as pre-
cluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section." 8 U.S.C.
§ 1252(a)(2)(D). Since cancellation of removal is placed in
the IJ’s discretion under 8 U.S.C. § 1229b, this Court has
jurisdiction over Sorcia’s appeal only if it concerns "constitu-
tional claims or questions of law." Id.; see also Jean v. Gon-
zales, 435 F.3d 475, 479-80 (4th Cir. 2006) (holding that the
court has no jurisdiction over any aspects of denial of relief
under § 1229b except constitutional claims or questions of
law).
                       SORCIA v. H OLDER                     13
   Sorcia does not argue that his appeal presents constitutional
claims. Nor, despite his contention to the contrary, does he
raise a question of law. Instead, throughout his brief, Sorcia
contends that the BIA should have given more weight to the
positive factors and less weight to the negative factors affect-
ing the exercise of the IJ’s discretion. For instance, Sorcia
argues that "[t]he IJ misapplied the law in failing to give the
outstanding equity of Petitioner’s length of residence in the
United States the appropriate weight compared to the rela-
tively minor factors." Brief of Petitioner at 6-7. Sorcia also
maintains that the IJ gave insufficient weight to Sorcia’s fam-
ily ties and steady employment.

   However, a challenge to the weight attributed to certain
factors relevant to immigration determinations does not pre-
sent a question of law. Higuit v. Gonzales, 433 F.3d 417, 419-
20 (4th Cir. 2006). In Higuit, the petitioner challenged an IJ’s
denial of adjustment of his alien status, another form of dis-
cretionary relief addressed in 8 U.S.C. § 1252(a)(2)(B). Id. at
419. Petitioner argued "that he ha[d] raised a question of law
because the IJ determined that the persecution carried out in
the Philippines outweighed his commendable conduct in the
United States." Id. at 420. On appeal, we concluded that we
lacked jurisdiction, stating,

    [t]his does not present a question of law. In making
    the discretionary adjustment of status determination,
    the IJ balanced Higuit’s positive and negative attri-
    butes and did not rule in Higuit’s favor. . . . Were
    Higuit correct that he has presented a question of
    law, almost every decision denying discretionary
    relief would henceforth be subject to judicial review.
    We are not free to convert every immigration case
    into a question of law and thereby undermine Con-
    gress’s decision to grant limited jurisdiction over
    matters committed in the first instance to the sound
    discretion of the Executive.
14                      SORCIA v. H OLDER
Id. at 420. In Jean, we considered perhaps a more closely
analogous decision by the BIA: refusal to grant a waiver of
inadmissibility. Id., 435 F.3d at 480-81. The court noted

     Jean argues only that the immigration judge drew the
     wrong factual conclusions from the evidence and
     then determined these conclusions outweighed any
     factors supporting a favorable exercise of discretion.
     In turn, Jean contends the BIA perpetuated this error
     by adopting the immigration judge’s inaccurate view
     of the evidence. These are discretionary decisions,
     however, that we have no jurisdiction to review.

Id. at 480. Here, as in Higuit and Jean, because Sorcia chal-
lenges only the weight given to certain factors by the IJ, we
conclude that we lack jurisdiction to review this assignment
of error.

   Nonetheless, Sorcia further attempts to cast these chal-
lenges as questions of law by saying that the BIA was acting
contrary to its precedent. He contends that "where cases have
the same or similar facts as precedent cases, it follows that the
BIA should apply the same standards." Brief of Petitioner at
18. In support of his position, Sorcia cites Hernandez v. Ash-
croft, 345 F.3d 824 (9th Cir. 2003). In that case, the Ninth
Circuit held that where previous cases stated that the nonvia-
bility of a marriage was not a basis for rejecting a petition, the
BIA’s decision to rule on that basis was contrary to law, not
a discretionary determination. Id. at 847.

   Hernandez is distinguishable from the case before us. Here,
Sorcia’s argument is not that the BIA considered improper
factors, but that it gave the improper amount of weight to the
proper factors. For the reasons explained above, we lack juris-
diction to consider that question. Cf. Argueta v. Holder, 617
F.3d 109, 112 (2d Cir. 2010) ("[A]ll but one of Argueta’s
claims lie beyond our jurisdiction because they are directed to
                           SORCIA v. H OLDER                            15
the manner in which the IJ balanced the equities in denying
his application for discretionary relief . . . .").

   Sorcia also argues that the BIA erred as a matter of law
when it considered the charge of committing a lewd act
against a minor. But the BIA expressly stated, "we agree with
respondent that little weight should be afforded to his arrest
for lewd conduct, as the case was not prosecuted and the
police report entered into evidence was uncorroborated . . . ."
We note that the BIA cited the same case in its decision, Mat-
ter of Arreguin, 21 I. & N. Dec. 38 (BIA 1995), that Sorcia
cites to argue that the scope of the BIA’s inquiry was
improper.

   Moreover, Arreguin did not indicate that it was per se
improper to consider an arrest report. See id. Rather, the BIA
there stated that "we are hesitant to give substantial weight to
an arrest report, absent a conviction or corroborating evidence
of the allegations contained therein." Id. at 42. Therefore,
insofar as the BIA declined to give substantial weight to Sor-
cia’s charge, it was following, rather than contradicting, pre-
cedent.

   In sum, Sorcia asserts no constitutional claims or questions
of law regarding the denial of his petition for cancellation of
removal. As such, we lack jurisdiction to rule on this issue.

                                    B.

   Sorcia also challenges the denial of his motion to remand.             6



  6
   The BIA can remand when an alien seeks reconsideration of a decision
or when an alien seeks to have the proceedings reopened. "Although these
motions are often treated interchangeably, a request for reconsideration is
based upon ‘errors of fact or law in the prior Board decision,’ 8 C.F.R.
§ 1003.2(b)(1), whereas a request to reopen proceedings results from
changed circumstances and specifically contemplates that an alien will do
so ‘for the purpose of submitting an application for relief,’ 8 C.F.R.
16                          SORCIA v. H OLDER
The authority to reopen an immigration case derives from 8
C.F.R. § 1003.2 rather than any of the provisions enumerated
in the gatekeeping clause of 8 U.S.C. § 1252(a)(2)(B). How-
ever, we have previously stated that the jurisdictional bar of
8 U.S.C. § 1252(a)(2)(B) applies where "the basis for the dis-
cretionary decision [to deny a motion to remand] addresses
the merits of an enumerated provision." Obioha, 431 F.3d at
406. In contrast, if the decision on the motion to remand is
based on a procedural failure or a determination that the peti-
tioner is statutorily ineligible for relief, we have jurisdiction
to review the matter. Id. at 406-07.

   To determine whether we have jurisdiction to review the
BIA’s denial of Sorcia’s motion to remand, we must consider
the BIA’s basis for the denial. The BIA stated:

     While the evidence submitted establishes an alter-
     nate avenue for the respondent to obtain relief, the
     approval of the visa petition does not change the fact
     that he does not merit a favorable exercise of discre-
     tion. Accordingly, for the same reasons that he was
     denied cancellation [of removal], the respondent
     would be unlikely to prevail on an adjustment appli-
     cation. We will therefore deny the motion.

(J.A. 5.) Here, "because the BIA made a discretionary deci-
sion on the merits of an enumerated provision, the fact that it

§ 1003.2(c)(1)." Obioha, 431 F.3d at 408. Sorcia bases his motion on the
fact that he had filed for an immigrant visa (specifically an immigrant rela-
tive visa supported by his daughter, a U.S. citizen). In other words, citing
changed circumstances, Sorcia sought a remand to allow for adjustment of
his immigration status, a form of "relief." As such, Sorcia’s motion was
one to remand for the reopening of his case. See 8 C.F.R. § 1003.2. ("A
motion to reopen a decision rendered by an Immigration Judge . . . that
is filed while an appeal is pending before the Board, may be deemed a
motion to remand for further proceedings before the Immigration Judge
. . . from whose decision the appeal was taken. Such motion may be con-
solidated with, and considered by the Board in connection with, the appeal
to the Board.").
                      SORCIA v. H OLDER                     17
did so through denying a motion to reopen did not save appel-
late jurisdiction." Id. at 407. Therefore, we conclude that we
lack jurisdiction to review the BIA’s denial of Sorcia’s
motion to remand.

                             IV.

   In sum, because Sorcia presents no issues on appeal over
which we possess subject matter jurisdiction, his appeal must
be

                                                 DISMISSED.
