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                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                  No. 13-13950
                              Non-Argument Calendar
                            ________________________

                             Agency No. A030-583-818

MORTLEY SHEPHERD,
a.k.a. Mortley Shepheard,

                                                                          Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                            ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                 (March 14, 2014)

Before CARNES, Chief Judge, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Mortley Shepherd, an 82-year-old national of Trinidad and Tobago, seeks

review of the Board of Immigration Appeals’ order denying his application for
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cancellation of removal under 8 U.S.C. § 1229b(a). Shepherd, who has an

American citizen wife with serious health issues and three American citizen

children, entered the United States as a lawful permanent resident in 1970. More

than three decades later, he was charged in Florida with sexually battering his ten-

year-old foster daughter. According to the probable cause affidavit underlying his

arrest, the victim told the police that Shepherd had touched her vagina on three

separate occasions, once with his hands and twice with his mouth. When

questioned by detectives, Shepherd denied having raped or molested his foster

daughter. But when asked if he had licked her vagina, he gave a series of oblique

and equivocal responses, first stating that he could not recall, then asking what

would happen if he had done so by accident, and finally asserting “not to [his]

knowledge.”

      In 2004 Shepherd entered a guilty plea to an amended state information

charging him with two counts of child abuse. He later withdrew that plea and

entered a new guilty plea to the same two counts of child abuse, but with the

stipulation that his convictions did not constitute sexual abuse of a minor. In

December 2005, the Florida trial court entered an order finding Shepherd guilty of

two counts of child abuse and expressly stating that he had not been convicted of

“a crime of sexual abuse of a minor as defined under Florida Statute.”




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      Shepherd was ordered removed from the United States for having been

convicted of child abuse, see 8 U.S.C. § 1227(a)(2)(E)(i), and he sought

cancellation of removal under 8 U.S.C. § 1229b(a), which grants immigration

courts discretion to award such relief where a lawful permanent resident meets

certain eligibility requirements and the balance of equities weighs in his favor. See

8 U.S.C. § 1229b(a); Matter of C-V-T-, 22 I. & N. Dec. 7, 10–11 (BIA 1998). In

exercising that discretion, immigration courts “must balance the adverse factors

evidencing the alien’s undesirability as a permanent resident,” including “the

nature and underlying circumstances of the grounds of exclusion or deportation,”

with the “social and humane considerations presented in his (or her) behalf to

determine whether the granting of relief appears in the best interest of this

country.” Matter of C-V-T-, 22 I. & N. Dec. at 11 (quotation marks and ellipsis

omitted).

      The immigration judge denied Shepherd’s application for cancellation of

removal, finding that the positive equities — Shepherd’s advanced age, longtime

residency in the United States, employment history, home ownership, family ties in

the country, and the potential hardship to his ailing wife — were outweighed by his

criminal conviction for child abuse and “the nature and underlying circumstances

of that conviction,” which the IJ determined to have involved Shepherd touching

his foster daughter’s vagina. The IJ reached that conclusion based on the probable


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cause affidavit underlying Shepherd’s arrest and Shepherd’s own testimony during

the removal proceedings that “one time [he] touch[ed] her vagina” and knew it

“was wrong.”

      The BIA affirmed the denial of Shepherd’s application, concluding that the

IJ had “properly weighed and balanced the factors relevant to the exercise of

discretion in this case” and that Shepherd’s conviction for child abuse, including

the facts underlying the offense, was “a very serious negative factor” that

outweighed the positive equities. Although the BIA acknowledged that Shepherd’s

state court judgment clarified that he had not been convicted of sexually abusing a

minor under Florida law, it found that the IJ properly considered the facts reflected

in the probable cause affidavit and Shepherd’s own admission that he touched his

foster daughter’s vagina.

                                          I.

      Shepherd challenges the BIA’s denial of his application for cancellation of

removal on three grounds. First, he contends that the BIA violated his due process

rights by failing to “give proper consideration to his claims” and failing to “provide

a well-reasoned opinion” supporting its decision. Second, he maintains that the

BIA clearly erred in finding that his child abuse conviction involved an offense “of

a sexual nature,” where the state court judgment clarified that his conviction did

not constitute sexual abuse of a minor under Florida law. Shepherd suggests that


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in reaching that conclusion, the BIA improperly “went beyond the evidence” and

the state court judgment by considering the allegations set forth in the probable

cause affidavit underlying his Florida arrest. Finally, he contends that the BIA’s

finding that the positive equities in his case were outweighed by his convictions for

child abuse was clearly erroneous and unsupported by the evidence.

      We begin, as we must, by considering our jurisdiction to entertain

Shepherd’s petition for review. See Keungne v. U.S. Att’y Gen., 561 F.3d 1281,

1283 (11th Cir. 2009). We generally lack jurisdiction to review the denial of

certain forms of discretionary relief, including cancellation of removal under 8

U.S.C. § 1229b(a). See 8 U.S.C. § 1252(a)(2)(B)(i). And though we retain

jurisdiction to review “constitutional claims or questions of law” raised in a

petition for review, id. § 1252(a)(2)(D), the scope of that jurisdiction extends only

to genuine questions of law and colorable constitutional claims, meaning those that

have “some possible validity.” Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 &

n.2 (11th Cir. 2007) (quotation marks omitted). Abuse of discretion arguments

masquerading as constitutional or legal claims, as well as challenges to the

evidentiary basis for a factual finding, are not sufficient to invoke our jurisdiction.

See id. at 1284 (“A petitioner may not create the jurisdiction that Congress chose

to remove simply by cloaking an abuse of discretion argument in constitutional

garb.”) (quotation marks omitted); see also Alvarez Acosta v. U.S. Att’y Gen., 524


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F.3d 1191, 1196–97 (11th Cir. 2008) (“[A] garden-variety abuse of discretion

argument . . . does not amount to a legal question under § 1252(a)(2)(D).”); Garcia

v. U.S. Att’y Gen., 329 F.3d 1217, 1222 (11th Cir. 2003) (explaining that we lack

jurisdiction to consider an argument that a factual finding “was not supported by

evidence in the record”).

      Despite his repeated invocations of due process, Shepherd has not alleged a

colorable constitutional claim because aliens do not “have a constitutionally

protected interest in discretionary forms of relief,” such as the grant of cancellation

of removal, sufficient to implicate due process guarantees. See Guzman-Munoz v.

U.S. Att’y Gen., 733 F.3d 1311, 1314 (11th Cir. 2013); see also Scheerer v. U.S.

Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) (“Because [the petitioner] has no

constitutionally protected interest either in the granting of his motions or in

adjustment of status, he cannot establish a due process violation based on the

BIA’s decisions.”). Moreover, his challenges to the BIA’s findings concerning the

underlying facts of his child abuse offense and to its conclusion that the negative

equities outweighed the positive ones do not raise legal questions sufficient to

invoke our jurisdiction. See Arias, 482 F.3d at 1284 (explaining that a claim that

the BIA erred in its “weighing of certain adverse and positive factors” is nothing

more than an abuse of discretion argument challenging the BIA’s “exercise of

discretion”); Garcia, 329 F.3d at 1222 (explaining that a challenge to a factual


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finding “is not reviewable by this Court as an exception to the jurisdictional bar”).

We therefore lack jurisdiction to consider those arguments.

      To the extent Shepherd contends that the BIA erred in looking beyond his

judgment of conviction to determine the facts underlying his child abuse offense,

that argument does raise a question of law over which we have jurisdiction. But it

is a meritless argument. In deciding whether an alien warrants a favorable exercise

of discretion, the BIA may consider evidence of criminal conduct or other

unbecoming behavior, regardless of whether that conduct led to or is reflected in a

criminal conviction. See Paredes-Urrestarazu v. INS, 36 F.3d 801, 810 (9th Cir.

1994) (holding that the BIA may “consider evidence of conduct that does not result

in a conviction” in deciding whether to grant discretionary relief based on the

balance of equities); Parcham v. INS, 769 F.2d 1001, 1005 (4th Cir. 1985)

(“Evidence of an alien’s conduct, without a conviction, may be considered in

denying the discretionary relief of voluntary departure.”); Matter of Thomas, 21 I.

& N. Dec. 20, 23 (BIA 1995) (“In examining the presence of adverse factors on an

application for discretionary relief, this Board has found it appropriate to consider

evidence of unfavorable conduct, including criminal conduct which has not

culminated in a final conviction . . . .”). And in deciding whether to grant

cancellation of removal, the BIA has held that immigration courts should consider,

among other things, “the nature and underlying circumstances of the grounds of


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exclusion or deportation,” the nature and seriousness of an alien’s criminal record,

and “the presence of other evidence indicative of [the alien’s] bad character or

undesirability as a permanent resident of this country.” Matter of C-V-T-, 22 I. &

N. Dec. at 11.

      For these reasons, Shepherd’s petition for review is dismissed in part and

denied in part.

      PETITION DISMISSED IN PART, DENIED IN PART.




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