                                                                          FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         March 28, 2006
                              FOR THE TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                          Clerk of Court

    RODRIGO HERRERA-CEJA,

                Petitioner,

    v.                                                   No. 05-9510
                                                      (No. A74-576-242)
    ALBERTO R. GONZALES,                             (Petition for Review)
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before LUCERO, EBEL, and MURPHY, Circuit Judges.



         Rodrigo Herrera-Ceja, a native and citizen of Mexico, petitions for review

of the administrative proceeding ordering him removed from the United States.

Because we lack jurisdiction, we DISMISS the petition for review.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
         Herrera-Ceja entered the United States without inspection and was

eventually apprehended. After he was served with a Notice to Appear, he applied

for cancellation of removal. Because Herrera-Ceja had been convicted of

violating 18 U.S.C. § 1546(a) (possession of false immigration documents) and

had served approximately eleven months in custody, the immigration judge (“IJ”)

determined that Herrera-Ceja could not demonstrate that he had good moral

character. See 8 U.S.C. § 1101(f)(7) (“No person shall be regarded as, or found

to be, a person of good moral character who . . . has been confined, as a result of

a conviction, to a penal institution for an aggregate period of one hundred and

eighty days or more . . . .”). Thus, the IJ held that Herrera-Ceja was statutorily

ineligible for cancellation of removal and voluntary departure. See 8 U.S.C.

§§ 1229b(b)(1)(B), 1229c(b)(1)(B). The IJ also denied Herrera-Ceja’s request for

a continuance.

         On appeal, the Bureau of Immigration Appeals (“BIA”) affirmed in a short

decision issued under 8 C.F.R. § 1003.1(e)(5) and denied Herrera-Ceja’s request

for remand to the IJ. Herrera-Ceja filed a timely petition for review with the

Ninth Circuit Court of Appeals, which appropriately transferred the case to this

court.

         Because the BIA issued its own brief order affirming the IJ’s decision, the

BIA’s decision is the final administrative order for purposes of review. See

Schroeck v. Gonzales, 429 F.3d 947, 951 (10th Cir. 2005). Herrera-Ceja argues

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that the BIA erred in (1) holding that he was statutorily ineligible for cancellation

of removal; (2) affirming the denial of voluntary departure; (3) affirming the

denial of a continuance; and (4) denying his request for remand. We do not have

jurisdiction to review any of Herrera-Ceja’s arguments.

      The Immigration and Nationality Act (“INA”) generally precludes judicial

review of denials of cancellation of removal, voluntary departure, and requests for

continuances. See INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i) (barring

review of decisions under 8 U.S.C. §§ 1229b (cancellation of removal) & 1229c

(voluntary departure)); Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004)

(citing INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii) in holding that this

court lacks jurisdiction to review a refusal of a continuance). However, the

REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 310, established this

court’s jurisdiction to review “constitutional claims or questions of law” raised

with regard to otherwise unreviewable immigration decisions. INA

§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). Section 1252(a)(2)(D) is applicable to

this case. See Perales-Cumpean v. Gonzales, 429 F.3d 977, 982 n.4 (10th Cir.

2005) (noting that § 1252(a)(2)(D) is applicable “to cases in which the final

administrative order of removal, deportation, or exclusion was issued before, on,

or after the date of enactment” of the REAL ID Act) (quoting REAL ID Act

§ 106(b)).




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      Herrera-Ceja argues that he is eligible for cancellation of removal because

only six months of his term of imprisonment was due to his criminal conviction.

The remainder of his incarceration, he asserts, is attributable to an immigration

hold. Under the REAL ID Act amendments, we have jurisdiction to consider this

argument only if we construe it as a constitutional claim or question of law.

      We cannot do so. The agency determined that the eleven-month term of

imprisonment was attributable entirely to the conviction. This decision is a

factual determination and is not the type of argument reserved to this court’s

jurisdiction. See, e.g., Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir.

2005) (“Should there be any doubt about the meaning of the term ‘questions of

law’ in the REAL ID Act, the legislative history makes it abundantly clear this

term refers to a narrow category of issues regarding statutory construction”).

Because Herrera-Ceja’s argument does not qualify under § 1252(a)(2)(D), we do

not have jurisdiction to review the denial of cancellation of removal.

      Similarly, with regard to the denials of both voluntary departure and a

continuance, Herrera-Ceja does not assert any constitutional claims or legal issues

to support jurisdiction under § 1252(a)(2)(D). Thus, we have no jurisdiction to

review these issues.

      Finally, Herrera-Ceja challenges the BIA’s denial of his “motion to remand

the record of proceedings to the Immigration Court to allow him to pursue an

application for adjustment of status.” Apparently, the BIA treated this motion as

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a motion to reopen and denied it on the ground that Herrera-Ceja had not shown

prima facie eligibility for adjustment of status. See Mickeviciute v. INS,

327 F.3d 1159, 1162 (10th Cir. 2003).

      This court generally retains jurisdiction to review the denial of a motion to

reopen. See Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004).

However, where judicial review of the underlying order is precluded,

a subsequent motion to reopen is also precluded. Id. at 1362. Because

Herrera-Ceja offers no legal questions or constitutional issues that would support

jurisdiction under § 1252(a)(2)(D), we lack jurisdiction to consider not only the

underlying order, but also the motion to reopen.

      Because we lack jurisdiction to consider any of Herrera-Ceja’s arguments,

the petition for review is DISMISSED.

                                                    Entered for the Court



                                                    Carlos F. Lucero
                                                    Circuit Judge




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