                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 13-1045
                                     ___________

                      BELISARIO SONTAY PELICO, Petitioner

                                          VS.

       ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent
                ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A072-444-403)
                 Immigration Judge: Honorable Charles M. Honeyman
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 25, 2013

       Before:   JORDAN, GREENAWAY, JR., and SCIRICA , Circuit Judges

                             (Opinion filed: July 26, 2013)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Belisario Sontay Pelico (“Pelico”), proceeding pro se, petitions for review of the

decision of the Board of Immigration Appeals (“BIA”) upholding the Immigration




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Judge‟s (“IJ”) denial of Pelico‟s application for cancellation of removal. For the reasons

that follow, we will dismiss the petition.

                                              I.

       Because we write primarily for the parties, we discuss the background of this case

only briefly. Pelico, a native and citizen of Guatemala, entered the United States in 1991.

In 2008, he was placed in removal proceedings and charged with being removable as an

alien who is present in the United States without having been admitted or paroled. See 8

U.S.C. § 1182(a)(6)(A)(i). After conceding his removability, Pelico applied for

cancellation of removal pursuant to 8 U.S.C. § 1229b(b).1

       In March 2011, the IJ issued a written decision denying Pelico‟s application. In

doing so, the IJ concluded that Pelico was statutorily ineligible for cancellation of

removal because he had not established, pursuant to § 1229b(b)(1)(D), that his removal

would result in “exceptional and extremely unusual hardship” to his qualifying relatives.

Pelico subsequently appealed the IJ‟s decision to the BIA. In December 2012, the BIA

dismissed the appeal, agreeing with the IJ‟s resolution of Pelico‟s application.

       Pelico now seeks review of the agency‟s decision.




1
  Pelico requested voluntary departure as an alternative form of relief. Although the IJ
granted that request, the BIA declined to reinstate that relief when it dismissed his appeal.
Because Pelico‟s brief does not challenge that aspect of the BIA‟s decision, we deem the
issue waived. See Laborers‟ Int‟l Union of N. Am., AFL-CIO v. Foster Wheeler Corp.,
26 F.3d 375, 398 (3d Cir. 1994).

                                              2
                                             II.

       Our jurisdiction over the agency‟s denial of applications for cancellation of

removal is limited. Indeed, “[w]e lack jurisdiction to review discretionary decisions

made pursuant to 8 U.S.C. § 1229b, including „exceptional and extremely unusual‟

hardship determinations.” Patel v. Att‟y Gen., 619 F.3d 230, 232 (3d Cir. 2010) (citing

8 U.S.C. § 1252(a)(2)(B)(i); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.

2003)). Although we retain jurisdiction to review constitutional claims or questions of

law, Patel, 619 F.3d at 232; see 8 U.S.C. § 1252(a)(2)(D), that review “is narrowly

circumscribed in that it is limited to colorable claims or questions of law.” Pareja v.

Att‟y Gen., 615 F.3d 180, 186 (3d Cir. 2010) (emphasis added) (internal quotation marks

and citation omitted). “To determine whether a claim is colorable, we ask whether „it is

immaterial and made solely for the purpose of obtaining jurisdiction or is wholly

insubstantial and frivolous.‟” Id. (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 513

n.10 (2006)). In this case, Pelico purports to raise both due process claims and questions

of law. We consider them in turn.

       Cancellation of removal is a form of discretionary relief. See Mendez-Reyes v.

Att‟y Gen., 428 F.3d 187, 189 (3d Cir. 2005). Although an alien facing removal does not

have a due process interest in being considered for discretionary relief, see United States

v. Torres, 383 F.3d 92, 104-05 (3d Cir. 2004), due process does require that his removal

proceedings afford him “„the opportunity to be heard at a meaningful time and in a

meaningful manner.‟” Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (quoting
                                             3
Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). This includes the right to “factfinding

based on a record produced before the decisionmaker and disclosed to him,” the right “to

make arguments on his . . . own behalf,” and “the right to an individualized determination

of his . . . interests.” Id. (internal quotation marks and citations omitted). In this case,

however, none of Pelico‟s purported due process claims makes a colorable showing that

the agency infringed upon any of those rights. Accordingly, we lack jurisdiction to

consider those claims.2

       Pelico‟s purported questions of law fare no better. His various challenges to the

agency‟s factual findings, as well as his claim that the agency failed to “factor[]” certain

evidence into its decision, do not present a legal question, let alone a colorable one. See

Jarbough v. Att‟y Gen., 483 F.3d 184, 189 (3d Cir. 2007). Furthermore, his claim that

the agency failed to apply the proper legal standard in adjudicating his application is

undeveloped and belied by the record, and thus not colorable. As a result, we lack

jurisdiction over these claims as well.



2
  One of those claims contends that the BIA, in reviewing the IJ‟s “exceptional and
extremely unusual hardship” determination, should have, sua sponte, taken administrative
notice of an earthquake that occurred in Guatemala about one month before the BIA
issued its decision. As the Government points out in its brief, Pelico, who was
represented by counsel in the proceedings before the agency, could have moved the BIA
to remand his case to the IJ for factfinding regarding the impact of that earthquake on his
application for cancellation of removal. See 8 C.F.R. § 1003.1(d)(3)(iv). Alternatively,
Pelico could have moved the BIA to reopen the case after the BIA issued its decision.
See 8 C.F.R. § 1003.2(c). Instead, Pelico chose to do nothing, and the narrow scope of
our jurisdiction in cases like this one prohibits us from weighing in on the issue. As a
result, we need not reach Pelico‟s request that we take judicial notice of that earthquake.
                                               4
       Because none of Pelico‟s claims presents a colorable constitutional claim or

question of law, we must dismiss his petition for review for lack of jurisdiction.




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