           United States Court of Appeals
                      For the First Circuit


No. 05-1886

                 DOMINGOS JOAO LIBERAL DE ARAUJO,

                            Petitioner,

                                v.

                       ALBERTO R. GONZÁLES,
              ATTORNEY GENERAL OF THE UNITED STATES,

                            Respondent.



               ON PETITION FOR REVIEW OF AN ORDER OF
                  THE BOARD OF IMMIGRATION APPEALS


                              Before

               Torruella and Lipez, Circuit Judges,
               and Stafford,* Senior District Judge.



     William E. Graves, Jr., with whom Kerry E. Doyle and Graves &
Doyle, on brief for petitioner.
     Jeffrey M. Cohen, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, on brief for
respondent.



                          August 11, 2006




*
    Of the Northern District of Florida, sitting by designation.
           TORRUELLA,    Circuit   Judge.   Petitioner   Domingos   Joao

Liberal De Araujo ("De Araujo") asks us to review a decision of the

Board of Immigration Appeals ("BIA") denying his motion to reopen

proceedings and finding that he did not qualify for discretionary

relief.   De Araujo claims that the BIA denied him due process by

pre-judging his application for relief under former section 212(c)

of the Immigration and Nationality Act ("INA") and by refusing to

reopen his immigration proceedings to allow him an opportunity to

present evidence in support of his application for former section

212(c) relief.    De Araujo also argues that he has not been

convicted of an aggravated felony because he has not committed a

crime of violence.      We affirm the BIA's dismissal of De Araujo's

appeal of the aggravated felony issue for his failure to file a

brief with the BIA.     Because we find that De Araujo's due process

rights were not violated and the BIA acted properly within its

discretion on his motion to reopen, we dismiss his remaining claims

for lack of jurisdiction.

                                    I.

A.   De Araujo's removal proceedings

           De Araujo is a native and citizen of Portugal who was

lawfully admitted to the United States on September 4, 1973.         He

was six years old at the time.      On January 6, 1992, De Araujo was

convicted in Massachusetts state court of assault and battery with




                                   -2-
a dangerous weapon and was sentenced to a two-and-a-half-year term

of imprisonment.   See Mass. Gen. Laws ch. 265, § 15.

           On April 6, 2000, the Immigration and Naturalization

Service ("INS")1 issued De Araujo a Notice to Appear, charging him

with removability pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C.

§ 1227(a)(2)(A)(iii), for being an alien convicted of an aggravated

felony.2

           De Araujo failed to appear at his scheduled hearing

before an Immigration Judge ("IJ") on January 4, 2001 and was

subsequently ordered removed in absentia.    However, on April 1,

2001, De Araujo's Massachusetts assault and battery charge was

vacated.   He then moved to reopen proceedings on April 2, and the

IJ granted the motion on July 6.



1
    In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
("BICE"). For simplicity, we refer to the agency throughout this
opinion as the INS.
2
  Under its definition of an "aggravated felony," the INA includes
"a crime of violence (as defined in section 16 of Title 18, but not
including a purely political offense) for which the term of
imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F).
In turn, 18 U.S.C. § 16 defines a "crime of violence" as--

     (a) an offense that has as an element the use, attempted
     use, or threatened use of physical force against the
     person or property of another, or

     (b) any other offense that is a felony and that, by its
     nature, involves a substantial risk that physical force
     against the person or property of another may be used in
     the course of committing the offense.

                                -3-
            On October 3, 2001, the INS amended the original charging

document to include two additional charges of removability.              The

first additional charge alleged that De Araujo was removable on

account of a November 7, 1995 Connecticut state conviction for

assault on a Department of Corrections employee for which he

received an eighteen-month sentence of imprisonment.               The INS

charged De Araujo with removability for the Connecticut assault

under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), for

being an alien convicted of an aggravated felony.

            The second additional charge alleged that De Araujo was

removable   because   of   a   January    27,   2000   Massachusetts   state

conviction for illegal possession of a controlled substance.              It

appears that De Araujo was convicted on the same day for three

different drug charges which had occurred on different days.

Removability for the Massachusetts controlled substance violations

was charged under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)

(2)(A)(iii).3




3
    The INS's amendment appears to mis-cite the relevant INA
provisions. The INS charged that De Araujo was subject to removal
under INA § 237(a)(2)(A)(ii) for having been convicted of an
aggravated felony.    The appropriate statute for an aggravated
felony, however, is INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227
(a)(2)(A)(iii). The INS further charged that De Araujo was subject
to removal under INA § 237(a)(2)(A)(iii) for having been convicted
of a controlled substance offense, but the appropriate statute for
a controlled substance offense is INA § 237(a)(2)(B)(i), 8 U.S.C.
§ 1227(a)(2)(B)(i).

                                    -4-
            At a hearing before the IJ, De Araujo argued that he was

eligible for cancellation of removal under 8 U.S.C. § 1229b and for

relief under former section 212(c) of the INA, 8 U.S.C. § 1182(c)4

(repealed   1996).    The   IJ   found   that   De   Araujo's   Connecticut

conviction for assault on a Department of Corrections employee

constituted a "crime of violence" pursuant to 18 U.S.C. § 16(b) and

therefore qualified as an "aggravated felony" under 8 U.S.C. § 1101

(a)(43)(F), which rendered him ineligible for cancellation of

removal under 8 U.S.C. § 1229b(a)(3).5          In addition, the IJ found


4
    Under former section 212(c) of the INA, "aliens lawfully
admitted for permanent residence who temporarily proceed abroad
voluntarily and not under an order of deportation, and who are
returning to lawful unrelinquished domicile of 7 consecutive years,
may be admitted at the discretion of the Attorney General without
regard to certain specified grounds for exclusion." In re Edwards,
20 I. & N. Dec. 191, 194 (BIA 1990).      Section 212(c) has been
interpreted to allow discretionary relief for lawful permanent
residents who have not proceeded abroad subsequent to the acts
which rendered them deportable. In re Silva, 16 I. & N. Dec. 26,
30 (BIA 1976). The exercise of discretion requires a balancing of
positive and negative factors in the alien's case to determine
whether relief is warranted. In re Edwards, 20 I. & N. at 195.

De Araujo argued that since his 1995 conviction predated the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546, which repealed
§ 212(c), he remained eligible for relief under former § 212(c).
See INS v. St. Cyr, 533 U.S. 289, 326 (2001) (holding that the
repeal of section 212(c) did not apply retroactively to an alien
who had pled guilty to an aggravated felony prior to the repeal).
Unlike 8 U.S.C. § 1229b, see infra note 5, former section 212 did
not contain the condition that a permanent resident seeking relief
would be statutorily ineligible if the alien was convicted of an
aggravated felony.
5
   Under 8 U.S.C. § 1229b(a), the Attorney General may cancel
removal for certain permanent residents found to be inadmissible or
deportable from the United States if the alien–

                                   -5-
that De Araujo's multiple Massachusetts drug convictions rendered

him ineligible for relief under former section 212(c) because the

drug convictions occurred after the passage of IIRIRA and repeal of

section 212(c).     The IJ ordered De Araujo removed to Portugal on

February 13, 2002.      The IJ noted that De Araujo had a motion

pending to vacate his Massachusetts drug convictions and that, if

his motion was granted, he would become eligible for relief from

removal under former section 212(c).

B.   De Araujo's appeal and motions to reopen proceedings with the
     BIA

             De Araujo filed a timely notice of appeal with the BIA

and on May 8, 2002 requested an extension of time to file his

appellate brief.     The BIA granted De Araujo's motion and set a

deadline of June 21.    According to De Araujo, his counsel sent the

brief via Federal Express on June 20.       However, the brief did not

reach the BIA until June 24, and the BIA rejected the brief as

untimely.6    On July 8, De Araujo filed a motion to accept the late-

filed brief; however, that same day, the BIA dismissed the appeal

for failure to file a brief.            De Araujo did not appeal the



     (1) has been an alien lawfully admitted for permanent
     residence for not less than 5 years,
     (2) has resided in the United States continuously for 7
     years after having been admitted in any status, and
     (3) has not been convicted of any aggravated felony.
6
   Apparently, the wrong zip code had been provided for the BIA's
address, although counsel for De Araujo maintains that the correct
zip code was given to Federal Express.

                                  -6-
dismissal to this Court but instead filed a motion to reconsider

the dismissal with the BIA on July 26.   The BIA denied De Araujo's

motion on December 23.    On January 23, 2003, De Araujo filed a

motion to reopen his immigration proceedings with the BIA. The BIA

denied this motion on March 7, stating that this motion was "in

essence" a second motion to reconsider and therefore exceeded the

numerical limits on motions to reconsider set forth in 8 C.F.R.

§ 1003.2(b)(2).7

           On or about November 17, 2003, De Araujo filed a motion

in Massachusetts state court to vacate his controlled substance

convictions.   De Araujo submitted a short affidavit in support of

his motion to vacate, which indicated that he had been unable to

understand the nature and effect of his pleas of guilty because of

his problems with drug addiction.8

           On November 19, a Massachusetts state court vacated De

Araujo's drug convictions.   The following day, De Araujo filed a

request with the BIA to reopen proceedings sua sponte based on

changed circumstances in his case. De Araujo argued that he should


7
   Only one motion to reconsider with the BIA is allotted to each
alien under 8 C.F.R. § 1003.2(b)(2).
8
    De Araujo's affidavit consisted of three sentences, stating

      I am presently serving time for violation of my
      probation. I entered guilty pleas in cases in 1999, and
      1998 while I was addicted to both heroin and cocaine. I
      was so addicted that when I entered my pleas of guilty,
      that the only thing I remember was that I was not going
      to jail.

                                -7-
now be entitled to relief under former section 212(c) because his

drug convictions had been vacated.               De Araujo acknowledged that,

under In re Pickering, 23 I. & N. Dec. 621 (BIA 2003), convictions

vacated solely to avoid immigration consequences remain convictions

for INA purposes.           He also conceded that the state record was

unclear as to the factual reasons for the state court's decision to

vacate but argued that his affidavit regarding his addiction

suggested that his pleas were not made knowingly or intelligently,

and       that   the   convictions   were      vacated    in   response   to   this

affidavit. De Araujo requested the BIA to invoke its discretionary

authority to reopen the case because of his "clear eligibility for

a 212(c) hearing."

                 On March 22, 2004, the BIA denied the request to reopen

proceedings sua sponte.           The BIA found De Araujo's affidavit in

support of his motion to vacate the Massachusetts convictions to be

"extremely limited in nature" and stated that it would "need more

information before [it] [found] that [the] reason for vacating" was

sufficiently unrelated to the immigration consequences of his

conviction.        The BIA further found that De Araujo was "undeserving

of    a    section     212(c)   waiver   in    the   exercise   of   discretion,"

indicating that even if it were to reopen De Araujo's case, it

would not grant his request for relief.                  It noted that De Araujo

had previously been convicted of four criminal offenses and, while

three of these had been vacated, none had been vacated because De


                                         -8-
Araujo was not guilty of the crimes committed.         The BIA also noted

that, at the time he filed his request to the BIA to reopen

proceedings sua sponte, De Araujo was incarcerated for parole

violations.    The BIA concluded that De Araujo's "criminal actions,

and apparent inability to comply with the terms of his probation do

not support the reopening of proceedings to apply for discretionary

relief which we do not believe he merits in the exercise of our

discretion."

C.   De Araujo's petition for review

            De Araujo filed a timely petition for review with this

Court, claiming (1) that the 1995 Connecticut conviction for

assault against a Department of Corrections employee did not

constitute an aggravated felony, and (2) that the BIA abused its

discretion in failing to reopen his removal proceedings and, in

doing so, violated his constitutional right to due process.              De

Araujo v. Ashcroft, 399 F.3d 84, 88-89 (1st Cir. 2005) ("De Araujo

I").    On February 23, 2005, we dismissed the petition for lack of

jurisdiction over either claim.          Id. at 89.   With regard to the

first    argument,   we   found   that   "[w]hether   [De   Araujo's]   1995

conviction . . . did or did not amount to an aggravated felony is

not an issue now open for review" because that order became final

on July 8, 2002, and De Araujo did not appeal that order to this

court within 30 days as required by 8 U.S.C. § 1252(b)(1).          Id. at

88-89.     We described the 30-day filing deadline as a "strict


                                     -9-
jurisdictional bar," which precluded us from considering his first

argument.   Id. at 89.   Regarding the second argument, we found that

we lacked jurisdiction to reach De Araujo's other claims on direct

review because he remained removable as an aggravated felon.     Id.

at 89 (citing INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C)); Emile

v. INS, 244 F.3d 183, 189 (1st Cir. 2001) ("Because [defendant] was

convicted of an aggravated felony, we have no authority to consider

on direct review any other claim once we conclude that he was

legitimately so classified."); Sousa v. INS, 226 F.3d 28, 34 (1st

Cir. 2000) ("[H]aving determined that [the petitioner] is removable

as an aggravated felon, our authority to act in this case with

respect to the removal proceeding, including incidental rulings on

discretionary relief, is at an end.").

D.   De Araujo's petition for a writ of habeas corpus and transfer

            On May 10, 2005, De Araujo filed a habeas petition in the

United States District Court for the District of Massachusetts.9

However, the passage of the REAL ID Act, § 106, Pub. L. No. 109-13,

119 Stat. 231, 311 (2005), stripped the district court of habeas

jurisdiction.    The district court therefore transferred the case


9
   Apparently, De Araujo filed yet another motion to reopen with
the BIA on August 30, 2005.     He based this motion on 8 C.F.R.
§ 1003.44, which allows eligible aliens to file a special motion
seeking relief under former section 212(c) if the alien pled guilty
to certain crimes before April 1, 1997. The BIA denied this motion
pursuant to 8 C.F.R. § 1003.44(d), which states that aliens
previously denied section 212(c) relief by an IJ or the BIA on
discretionary grounds are not eligible for special reopening. De
Araujo has not appealed this denial.

                                 -10-
back to this Court, where we are to treat De Araujo's claims as

ones for direct review.    See REAL ID Act, § 106(c).

                                 II.

A.   Jurisdiction over De Araujo's claims under the REAL ID Act

           Under the REAL ID Act, a habeas petition to a district

court is transferred to a court of appeals "as if it had been filed

pursuant to a petition for review." REAL ID Act § 106(c); Ishak v.

Gonzáles, 422 F.3d 22, 27 (1st Cir. 2005).      In this appeal, De

Araujo renews his claim that his Connecticut conviction is not an

aggravated felony and that is therefore not removable.    De Araujo

also contends that the BIA denied him due process by pre-judging

his waiver and refusing to reopen his immigration proceedings to

allow him an opportunity to present evidence in support of his

application for relief under former section 212(c).

           1.   The aggravated felony

           De Araujo's claims mirror those he previously made before

this Court in De Araujo I.     In that case, we held that the IJ's

February 12, 2002 ruling that the 1995 Connecticut conviction

constituted an aggravated felony, which rendered De Araujo subject

to removal, became final on July 8, 2002 when the BIA dismissed his

appeal of the IJ's order.     De Araujo I, 399 F.3d at 88.    See 8

C.F.R. § 1241.1 ("An order of removal made by the immigration judge

at the conclusion of proceedings under section 240 of the Act shall

become final . . . [u]pon dismissal of an appeal by the Board of


                                -11-
Immigration    Appeals").      We   noted    the    "strict   jurisdictional

requirement" that, pursuant to 8 U.S.C. § 1252(b)(1), all petitions

for review addressed to this Court from BIA orders must be filed

not later than 30 days after the date of the final order of removal

and dismissed the claim as time-barred.            De Araujo I, 399 F.3d at

88 (quoting Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003))

(internal citations and quotation marks omitted).             However, under

the REAL ID Act, habeas petitions transferred to the court of

appeals are not subject to the 30-day time limit.             See REAL ID Act

§ 106(c) ("The court of appeals shall treat the transferred case as

if it had been filed pursuant to a petition for review under such

section 242 [8 U.S.C. § 1252], except that subsection (b)(1) of

such section shall not apply."); see also Ishak, 422 F.3d at 27.

Thus the "strict jurisdictional requirement" does not apply here.

             Moreover, De Araujo properly exhausted his administrative

remedies, giving us jurisdiction over his appeal.                It is well-

settled law that a court of appeals may not review an order of

deportation or exclusion unless "the alien has exhausted all

administrative remedies available to the alien as of right."               8

U.S.C. § 1252(d)(1).       This exhaustion requirement generally means

that   the    BIA   must   first    review   an    IJ's   determination   of

deportability before a petitioner may present his appeal to us.

Bernal-Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999) ("Usually

issues not raised before the BIA may not be raised for the first


                                    -12-
time on a petition for review.") (citing Ravindran v. INS, 976 F.2d

754, 761 (1st Cir. 1992)) (citation omitted).               Here, De Araujo

filed a Notice of Appeal with the BIA and also stated that he would

file a timely brief, but failed to do so.              The BIA therefore

dismissed the appeal.     See 8 C.F.R. § 1003.1(d)(2)(i)(E).        The BIA

also   denied   De   Araujo's    subsequent   motion   to   reconsider   the

dismissal of his appeal.        It therefore never reviewed De Araujo's

argument regarding the aggravated felony.         We were presented with

a similar situation in Athehortua-Vanegas v. INS, 876 F.2d 238 (1st

Cir. 1989).     In Athehortua, the BIA summarily dismissed an appeal

where the petitioner filed a timely Notice of Appeal followed by an

untimely brief.      We held that the petitioner had exhausted his

administrative remedies.        Id. at 240 ("Petitioner did not overlook

the Board, or ignore it, or attempt to appeal directly to the

courts from the IJ's order. . . . [He] went to the BIA, albeit

unsuccessfully.      He thereby exhausted the remedy.").          Here, we

similarly find that De Araujo has exhausted his administrative

remedies.

            The foregoing considerations notwithstanding, however, we

will not address the merits of De Araujo's argument.           As discussed

above, the BIA summarily dismissed De Araujo's appeal for failure

to file a brief.     In his current appeal, De Araujo does not address

this decision but instead goes straight to the merits of his

aggravated felony argument.        De Araujo's only hint at a challenge


                                    -13-
to the summary dismissal occurs in the last paragraph of his brief

where he states that we have jurisdiction to review his claim

because he raised the aggravated felony issue in his "detailed

notice of appeal."     He does not argue that raising an issue in his

Notice of Appeal could be enough to withstand a summary dismissal

for failure to file a brief, nor does he ever actually claim that

the BIA erred in dismissing his appeal for failure to file a brief.

We have repeatedly held that "issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,

are deemed waived."        United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990) ("It is not enough merely to mention a possible argument

in the most skeletal way, leaving the court to do counsel's work,

create    the   ossature    for   the   argument,    and   put   flesh   on   its

bones."); see also Stoll v. Principi, 449 F.3d 263, 267 (1st Cir.

2006)    (holding   that    where   a   petitioner   has   not   proffered    an

argument along certain lines, any such claim has been abandoned).

De Araujo's conclusory statements, without further development, do

not rise to the level of a cognizable appellate argument. Inasmuch

as our review is limited to the BIA's final order (here, summary

dismissal under 8 C.F.R. 1003.1(d)(2)(i)(E)), De Araujo has not

adequately challenged the summary dismissal to preserve the issue,

and we go no further.




                                        -14-
            2.    Relief under former section 212(c)

            De Araujo also contended in De Araujo I that the BIA

deprived him of his constitutional right to due process by refusing

to reopen proceedings because he was not granted a fair opportunity

to establish his eligibility for relief from removal under former

section 212(c) or to present his case to an IJ.          Id.   We determined

that because we lacked jurisdiction to review De Araujo's claim

that his assault conviction was not an aggravated felony, "he

remains removable on that ground, and we lack jurisdiction to reach

his other claims on direct review."            Id. (citing INA § 242(a)

(2)(C), 8 U.S.C. § 1252(a)(2)(C)).          Therefore, under pre-REAL ID

Act law, we did not entertain De Araujo's other claims, which he

could instead have presented as a habeas petition in the district

court.   However, the REAL ID Act made the courts of appeals the

sole arbiters of final orders of removal or exclusion for both

criminal and non-criminal aliens.           See 8 U.S.C. § 1252(b)(2),

amended by REAL ID Act § 106, Pub. L. No. 109-13, 119 Stat. at 310-

11; Ishak, 422 F.3d at 28.

            Although relief from removal under former section 212(c)

is a form of discretionary relief over which we generally have no

appellate   jurisdiction,    the   REAL   ID   Act   carved    out   a   narrow

exception    to     permit   the   courts      of    appeals   to    consider

"constitutional claims" or "questions of law" notwithstanding most




                                   -15-
other jurisdictional bars of the INA.10            See Pub. L. No. 109-13,

§ 106(a)(1)(A)(iii), 119 Stat. 310 (codified at 8 U.S.C. § 1252

(a)(2)(D)); Elysee v. Gonzáles, 437 F.3d 221, 223 (1st Cir. 2006)

(citing Mehilli v. Gonzáles, 433 F.3d 86, 92 (1st Cir. 2005)).

"Under    the    terms   of     this     limited    jurisdictional    grant,

discretionary or factual determinations continue to fall outside

the jurisdiction of the courts of appeals, and BIA findings as to

timeliness      and   changed    circumstances      are   usually    factual

determinations."      Mehilli, 433 F.3d at 93 (internal citations and

quotation marks omitted).       A constitutional claim "would at least

have to be colorable" before a court will exercise jurisdiction to

review such a claim or question.          Id. at 93-94.   In other words, a

"petitioner may not create the jurisdiction that Congress chose to

remove simply by cloaking an . . . argument in constitutional garb

. . . .   To be colorable in this context . . . the claim must have

some possible validity."        Id. (quoting Torres Aguilar v. INS, 246


10
     Under 8 U.S.C. § 1252(a)(2)(B)(i), "except as provided in
subparagraph (D) . . . no court shall have jurisdiction to review
. . . any judgment regarding the granting of [discretionary] relief
to removable aliens under section 212(h), 212(i), 240A, 240 B, or
245 [8 U.S.C.S. §§ 1182(h), 1182(i), 1229b, 1229c, or 1255].

     Subparagraph (D) was added by the REAL ID Act to read:

     Nothing in subparagraph (B) or (C), or in any other
     provision of [the Immigration and Nationality Act](other
     than this section) which limits or eliminates judicial
     review, shall be construed as precluding review of
     constitutional claims or questions of law raised upon a
     petition for review filed with an appropriate court of
     appeals in accordance with this section.

                                       -16-
F.3d 1267, 1271 (9th Cir. 2001)). Therefore, we review De Araujo's

due process claims to determine whether they are indeed colorable

constitutional issues.

B.   Analysis of De Araujo's due process claims

            To state a due process claim, an alien must possess a

liberty or property interest.         Board of Regents v. Roth, 408 U.S.

564, 569-71 (1972).       The Supreme Court has long held that a

permanent resident alien is protected under the Fifth Amendment and

entitled to due process in the form of notice of the charges

against him and a deportation hearing.        Kwong Hai Chew v. Colding,

344 U.S. 590, 596-98 (1953); Choeum v. INS, 129 F.2d 29, 38-40 (1st

Cir. 1997) ("It is well established that the Fifth Amendment

entitles aliens to due process of law in deportation proceedings.

At the core of these due process rights is the right to notice of

the nature of the charges and a meaningful opportunity to be

heard.").      However, an alien does not have a constitutionally

protected interest in receiving discretionary relief from removal

or deportation.     United States v. López-Ortiz, 313 F.3d 225, 231

(5th Cir. 2002).    The Attorney General's suspension of deportation

is "an act of grace, which is accorded pursuant to his [or her]

unfettered discretion."        INS v. Yueh-Shaio Yang, 519 U.S. 26, 30

(1996) (internal citations and quotations omitted).              Further, a

constitutionally protected interest in receiving relief cannot

arise   from   relief   that    the   Attorney   General   has   unfettered


                                      -17-
discretion to award.          See Fernández Pereira v. Gonzáles, 417 F.3d

38, 46 (1st Cir. 2005) ("Congress is not required to provide

aggravated felons with an avenue for discretionary relief from

deportation, and currently does not do so.").

           Moreover, while an alien may raise as a constitutional or

legal claim arising from "the refusal of [an] agency to even

consider him" for discretionary relief, "he may not challenge the

agency's decision to exercise or not exercise its discretion to

grant relief."      Saint Fort v. Ashcroft, 329 F.3d 191, 203 (1st Cir.

2003) (citing Carranza v. INS, 277 F.3d 65, 71 (1st Cir. 2002));

Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003) ("A right to

seek relief is analytically separate and distinct from a right to

the relief itself.").

           Here,     the          BIA   clearly      considered       De    Araujo     for

discretionary relief.               The BIA received and read De Araujo's

request to reopen proceedings sua sponte, and after considering the

merits of De Araujo's motion, the BIA found that it did not support

the   reopening     of      proceedings       in     the   exercise    of    the     BIA's

discretion.       The       BIA    based    its     decision   that    De    Araujo    was

"undeserving   of       a    section       212(c)    waiver    in   the     exercise    of

discretion"    on    his      four      criminal      convictions      and    "apparent

inability to comply with the terms of his probation." In addition,

the BIA considered but did not find sufficient evidence from De

Araujo's "extremely limited" affidavit that his convictions were


                                            -18-
not vacated simply to avoid immigration consequences, which would

render him ineligible to be considered for former section 212(c)

relief. 8 C.F.R. 1003.2(c)(1) ("A motion to reopen proceedings for

the   purpose    of   submitting   an   application   for   relief    must   be

accompanied by . . . all supporting documentation."); see also In

re Pickering, 23 I. & N. Dec. at 625.          On these facts, De Araujo

raises    no    colorable   constitutional    claim   of    a   due   process

violation.

            Nor has De Araujo raised a question of law for our

review.    We lack jurisdiction to review the BIA's discretionary

denial of section 212(c) relief in this case.          See 8 U.S.C. § 1252

(a)(2)(B); see also Elysee, 427 F.3d at 244 (holding that attacks

on the balancing of factors engaged in by the IJ before deciding

not to grant discretionary relief were not constitutional claims or

questions of law).      Furthermore, "the decision of the BIA whether

to invoke its sua sponte authority is committed to its unfettered

discretion."      Prado v. Reno, 198 F.3d 286, 292 (1st Cir. 1999).

Thus, "it is at least arguable that our review of this challenge

would in all events be barred because we lack authority to review

issues committed to the agency's unfettered discretion."              Roberts

v. Gonzáles, 422 F.3d 33, 37 n.2 (1st Cir. 2005) (citing Heckler v.

Chaney, 470 U.S. 821, 821 (1985)).          In any case, we find that we

are precluded from reviewing De Araujo's claims.




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                               III.

          We affirm the summary dismissal of De Araujo's appeal by

the BIA, and dismiss his remaining claims for lack of jurisdiction.

          Dismissed.




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