                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-1992


DANIEL EXCELLENT, a/k/a Danny Excellent,           a/k/a    David
Excellent, a/k/a Thomas Excellent,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   May 7, 2013                    Decided:       May 15, 2013


Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.


Petition dismissed in part and denied in part by unpublished per
curiam opinion.


Paul O’Dwyer, New York, New York, for Petitioner.     Stuart F.
Delery, Principal Deputy Assistant Attorney General, Stephen J.
Flynn, Assistant Director, Robert Michael Stalzer, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Daniel      Excellent,       a    native       and    citizen      of   Haiti,

petitions for review of an order of the Board of Immigration

Appeals   (“Board”)      dismissing          his    appeal    from     the    immigration

judge’s denial of Excellent’s request for protection under the

Convention Against Torture and denying his request to renew his

application      for    a      waiver    of        inadmissibility       under      former

§ 212(c) of the Immigration and Nationality Act.                             See 8 U.S.C.

§ 1182(c) (1994) (repealed 1996).                        For the reasons discussed

below, we dismiss the petition for review in part and deny the

petition in part.

            Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack

jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)

(2006), to review the final order of removal of an alien who is

removable      for   having      been     convicted         of    certain      enumerated

crimes,     including        controlled           substance      offenses.           Under

§ 1252(a)(2)(C),        we     retain     jurisdiction           “to   review       factual

determinations          that      trigger           the       jurisdiction-stripping

provision, such as whether [Excellent] [i]s an alien and whether

[]he has been convicted of [a controlled substance offense].”

Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).                              Once

we   confirm    these    two     factual      determinations,          under    8   U.S.C.

§ 1252(a)(2)(C),        (D),     we     can       only    consider     “constitutional



                                              2
claims or questions of law.”         § 1252(a)(2)(D); see Turkson v.

Holder, 667 F.3d 523, 527 (4th Cir. 2012).

             Because Excellent has conceded that he is a native and

citizen of Haiti and that he has been convicted of a controlled

substance offense, we lack jurisdiction over the petition for

review absent a colorable constitutional claim or question of

law.     8   U.S.C.   § 1252(a)(2)(C).    We   therefore   dismiss   the

petition for review in part.

             To the extent that Excellent raises claims that fall

under the jurisdictional exception set forth in § 1252(a)(2)(D),

we have thoroughly reviewed these claims and the administrative

record and we conclude that those claims lack        merit.   Excellent

cannot state a colorable due process claim “because he has no

property or liberty interest in the ‘right’ to discretionary

section 212(c) relief.”        Smith v. Ashcroft, 295 F.3d 425, 430

(4th Cir. 2002); see Dekoladenu v. Gonzales, 459 F.3d 500, 508

(4th Cir. 2006) (“No property or liberty interest can exist when

the    relief   sought   is   discretionary.”),   abrogated   on   other

grounds by Dada v. Mukasey, 554 U.S. 1 (2008).        Additionally, we

discern no error in the Board’s findings that its April 28, 2006

decision affirming the immigration judge’s denial of § 212(c)

relief was final, and that Excellent waived further review of

the issue.      See Jungming Li v. Holder, 656 F.3d 898, 904 n.1

(9th Cir. 2011) (explaining that nothing in Matter of M-D-, 24

                                    3
I. & N. Dec. 138, 141 (B.I.A. 2007), “suggests that a petitioner

could use the remand as a venue to challenge orders denying

relief that the [Board] has affirmed,” and clarifying that the

case   merely   recognizes   the   immigration    judge’s    authority     to

consider new evidence if it would support a motion to reopen the

proceedings).

           Accordingly,   we   dismiss   the   petition     for   review   in

part and deny the petition in part.              We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this Court and argument would

not aid the decisional process.

                                           PETITION DISMISSED IN PART
                                                   AND DENIED IN PART




                                    4
