     Case: 14-60525      Document: 00512785718         Page: 1    Date Filed: 09/29/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                          September 29, 2014
                                      No. 14-60525
                                                                             Lyle W. Cayce
                                                                                  Clerk
LIBRADO ESPARZA ALFARO, also known as Librado Alfaro Esparza,

               Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

               Respondent




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A091 233 972


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Librado Esparza Alfaro (“Esparza”), a citizen of Mexico, petitions for
review of an order by the Board of Immigration Appeals affirming his removal
from the United States. The Government moves to dismiss Esparza’s petition
for lack of jurisdiction. For the following reasons, we grant the motion to
dismiss.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 14-60525
      In September 2010, Esparza pleaded guilty to and was convicted of
indecency with a child, a second-degree felony under Texas law. The
Department of Homeland Security commenced removal proceedings against
him in September 2012 on the grounds that his conviction of an aggravated
felony made him deportable. See 8 U.S.C. § 1227(a)(2)(A)(iii). While Esparza’s
removal proceedings were pending, his son, who is a U.S. citizen, petitioned for
him to be classified as an “immediate relative” so that he would be eligible to
apply for an immigrant visa. In January and February 2014, the Immigration
Judge (“IJ”) held hearings on Esparza’s application for adjustment of status
and his claim for derivative citizenship through his U.S. citizen mother. The
IJ found that Esparza’s claim for derivative citizenship lacked merit, and she
denied Esparza’s application for adjustment of status as a matter of discretion.
The IJ therefore ordered that Esparza be removed from the United States to
Mexico. Esparza appealed only the denial of his application for adjustment of
status. The Board of Immigration Appeals (“BIA”) affirmed that denial and
dismissed his appeal.
      We are generally prohibited from reviewing a final order of removal
against an alien who is removable because he committed an aggravated felony.
8 U.S.C. §§ 1252(a)(2)(C), 1227(a)(2)(A)(iii). We are also generally prohibited
from reviewing the discretionary denial of a request for adjustment of status.
8 U.S.C. § 1252(a)(2)(B)(i); Chhetri v. Holder, 560 F. App’x 396, 397 (5th Cir.
2014). However, there is an exception to both prohibitions for petitions for
review based on “constitutional claims or questions of law.” 8 U.S.C. §
1252(a)(2)(D). Esparza claims that his petition raises a legal issue suitable for
appellate review because his petition argues that the IJ and BIA did not
properly apply the law to the facts. As support for his argument that the law
was misapplied, Esparza claims that both the IJ and the BIA ignored certain
evidence of his rehabilitation.
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                                 No. 14-60525
      Esparza does not raise a colorable legal argument. Both the IJ and BIA
expressly considered evidence bearing on rehabilitation and concluded that
that evidence did not support a favorable exercise of discretion. Esparza
effectively brings a factual challenge to the IJ’s and BIA’s conclusions based on
the record. We lack jurisdiction to review that challenge. See Solorzano-Moreno
v. Mukasey, 296 F. App’x 391, 394 (5th Cir. 2008) (holding that claims were
unreviewable because they “amount[ed] to an argument that the immigration
judge ‘abused her discretion in weighing the multiple desiderata made relevant
by the BIA[]’” (citing Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006)
(brackets omitted)); see also Al-Shahin v. Holder¸ 354 F. App’x 583, 584 (2d Cir.
2009) (holding that the immigration judge’s finding of an absence of
rehabilitation was unreviewable).
      Esparza’s petition for review is therefore DISMISSED for lack of
jurisdiction.




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