          United States Court of Appeals
                      For the First Circuit

No. 11-2280

                          CARMEN ORTEGA,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE

                   BOARD OF IMMIGRATION APPEALS


                              Before
                       Lynch, Chief Judge,
                      Selya, Circuit Judge,
                  and Hillman,* District Judge.


     Kurt Wm. Hemr for petitioner.
     Meadow W. Platt, Department of Justice, Civil Division, Office
of Immigration Litigation, with whom Stuart F. Delery, Acting
Assistant Attorney General, Civil Division, and Terri J. Scadron,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.



                        November 27, 2013




     *
      Of the District of Massachusetts, sitting by designation.
             HILLMAN, District Judge.      Petitioner Carmen Ortega seeks

review of a decision of the Board of Immigration Appeals finding

her ineligible for cancellation of removal under 8 U.S.C. § 1229b.

Ortega challenges the Board's holding and its procedural steps for

determining that her second state conviction for possession of a

controlled    substance     corresponded    to   the   federal   offense   of

"recidivist possession" under 21 U.S.C. § 844(a).          Because we lack

jurisdiction to review Ortega's claims on this petition for review,

we must dismiss the case.

                       I.    Facts and Background

             Carmen Ortega is a 62-year-old native and citizen of the

Dominican Republic.       She was admitted to the United States as a

lawful permanent resident in January of 1969.          In the four decades

since, she has worked at two nursing homes and as a home health

aide treating elderly patients.       Her family in the United States

includes five children, fourteen grandchildren, and one great-

grandchild, all citizens, as well as an older brother and his wife.

Ortega has no family remaining in the Dominican Republic.            In the

spring of 2012, Ortega was diagnosed with Alzheimer's disease.

             In June of 2008, Ortega pleaded nolo contendere in a

Rhode Island state court to possession of a controlled substance in

violation of section 21-28-4.01 of the Rhode Island General Laws.

Ortega's plea agreement included a waiver of her right to appeal




                                    -2-
her sentence.       The Rhode Island state court ultimately sentenced

Ortega to nine months' imprisonment on the charge.

           In   October    of   2009,   Ortega   once   more   pleaded    nolo

contendere to possession of a controlled substance.              Because the

charge was Ortega's second offense, Ortega's plea reflected that

she had been charged with "Poss heroine 2nd off." and the state

court recorded a guilty plea for "Poss Sch. I-V Contrl Sub/2nd

Off."   Pursuant to Rhode Island General Laws § 21-28-4.11, which

subjects a second controlled-substances offender to twice the

prison term of a first-time offender, the court sentenced Ortega to

one year imprisonment, with a suspended sentence of five years and

a term of probation of five years.

           On November 25, 2009, the Department of Homeland Security

(DHS) initiated removal proceedings against Ortega under 8 U.S.C.

§ 1227(a)(2)(B)(i) as an alien convicted of violating a law

relating   to   a     controlled    substance.     Ortega      conceded   her

removability as charged, but applied for cancellation of removal

under 8 U.S.C. § 1229b(a).         Following a hearing in April of 2010,

an Immigration Judge (IJ) granted Ortega's application for relief.

While mindful of Ortega's criminal charges, the IJ found that

Ortega's extended residency in the United States, history of

employment, strong family ties, and lack of family in the Dominican

Republic weighed in favor of cancellation.




                                      -3-
             On appeal by the DHS, the Board of Immigration Appeals

(BIA) vacated the IJ's decision.                 The BIA found that Ortega's

second state conviction for possession of a controlled substance

could be seen to correspond to the federal offense of "recidivist

possession"    under     21    U.S.C.    §     844(a),     an    aggravated    felony

rendering an applicant statutorily ineligible for cancellation of

removal.     Because an alien bears the burden of demonstrating her

eligibility where a statutory bar "may apply" under 8 U.S.C.

§     1229b(a)(3),    and     because    Ortega        failed    to   disprove      the

correspondence       between    the     two    recidivist       statutes,     the   BIA

concluded that Ortega was ineligible for relief.

             On remand, the IJ entered an order of removal and the BIA

affirmed.     In its September 30, 2011 decision, the BIA reiterated

its    position   that      Ortega's     second        state    conviction    was    an

aggravated felony rendering her ineligible for cancellation of

removal.    The BIA further found that, regardless of the statutory

bar, Ortega did not merit relief in the exercise of its discretion.

The BIA acknowledged the positive equities in favor of relief,

including Ortega's extensive family ties in the United States.

Nevertheless, it concluded that the severe and repetitive nature of

Ortega's criminal convictions, not least the suggestion that she

had sold as well as possessed controlled substances, counseled

against    cancellation.        Of     the     three    panelists,    one      member

dissented,     finding      that      Ortega     had     demonstrated       both    her


                                         -4-
eligibility for cancellation and entitlement to relief on the

merits.

            On    March   16,    2012,      following    her    diagnosis    with

Alzheimer's disease, Ortega filed a motion to reopen her removal

proceedings so that the BIA could take into account her new medical

condition.       On May 8, 2012, the BIA denied Ortega's motion as

untimely, having been filed well over 90 days after the BIA's

September 30, 2011 decision.           The BIA further found that reopening

was unwarranted because, in light of her criminal convictions,

Ortega had failed to demonstrate prima facie eligibility for

relief.

                                II.    Discussion

            Before us, Ortega contends that the BIA committed two

legal errors in determining that her second state conviction

triggered    the    statutory         bar   against     her    application    for

cancellation of removal.        First, Ortega argues that Rhode Island's

sentencing enhancement for second-time offenders under R.I. Gen.

Laws § 21-28-4.11 cannot correspond to the federal felony of

"recidivist possession" under 21 U.S.C. § 844(a) because only the

federal, but not the state, framework gives prosecutors discretion

over whether to charge a defendant as a repeat offender.                Second,

Ortega argues that the BIA violated the procedural requirements of

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), by looking

outside the record of Ortega's second state conviction to determine


                                        -5-
that her first conviction had become "final," a required element of

recidivist possession under 21 U.S.C. § 844(a).

           This court lacks the jurisdiction to consider either of

Ortega's claims.

           Under    the   Immigration      and    Nationality    Act   (INA),

appellate courts have no jurisdiction to review "any judgment

regarding the granting of relief under section 1182(h), 1182(i),

1229b, 1229c, or 1255 of this title." 8 U.S.C. § 1252(a)(2)(B)(i).

The enumerated sections include 8 U.S.C. § 1229b, the provision

governing cancellation of removal.               The INA's divestiture of

appellate jurisdiction is subject to one statutory exception:

judicial review of purely legal or constitutional issues. Hasan v.

Holder, 673 F.3d 26, 32 (1st Cir. 2012); 8 U.S.C. § 1252(a)(2)(D).

Purely   discretionary    decisions   or    determinations      by   the   BIA,

however, fall beyond the review of the appellate courts.               Hasan,

673 F.3d at 32.

           While the BIA's September 30, 2011 decision affirmed that

Ortega's   second    state   conviction      rendered    her     statutorily

ineligible for cancellation of removal, that same opinion also held

that Ortega failed to establish a claim for relief on the merits.

This alternative holding is a purely discretionary decision.

Because we cannot overturn the BIA's discretionary denial of relief

regardless of our legal conclusions, any opinion we reach on

Ortega's statutory or procedural claims would be purely advisory


                                  -6-
and beyond our authority under Article III.               See State of R.I. v.

Narragansett Indian Tribe, 19 F.3d 685, 705 (1st Cir. 1994)

("Article III of the Constitution forbids courts from issuing

advisory opinions or answering hypothetical questions.").                 As this

court       observed   in   Zajanckauskas     v.   Holder,    where   "we    lack

jurisdiction to review the discretionary ground" for denial of

cancellation and "a reversal of the [alternate] grounds we have

jurisdiction to review would not change the outcome, review of the

legal questions would be moot."          611 F.3d 87, 89 (1st Cir. 2010).

In such a case, "we must dismiss [the] appeal."              Id. at 90.1

               Ortega argues that her petition is not mooted by the

BIA's discretionary holding because the question of whether her

state conviction constitutes an "aggravated felony" has independent

legal significance under the INA, bearing for example on Ortega's

eligibility for a temporary return to the United States under

8 U.S.C. § 1182(d)(3).         It is true that an alien convicted of an

aggravated       felony     loses    access   to   certain    privileges      and

opportunities          under   the     INA.        See,     e.g.,     8     U.S.C.


        1
        Ortega relies on the Supreme Court's decision in Kucana v.
Holder, 558 U.S. 233 (2010), to argue that the BIA cannot insulate
its decisions from review merely by terming them "discretionary."
However, the Court's holding in Kucana addressed limitations
imposed   by   the   BIA's  internal   regulations,   rather  than
congressional statutes.     See id. at 243.     Kucana explicitly
affirmed    that    "the   decisions   Congress    enumerated   in
§ 1252(a)(2)(B)(i)" are "insulat[ed] . . . from judicial review."
Id. at 247.     Kucana therefore has no bearing on an appellate
court's jurisdiction over the BIA's decisions pursuant § 1229b, a
section enumerated in § 1252(a)(2)(B)(i).

                                        -7-
§ 1182(a)(9)(A)(ii) (rendering "inadmissible" aliens previously

removed under § 1229a who have "been convicted of an aggravated

felony").      However, Ortega's argument misconstrues the burden-

shifting     framework    underlying    the    BIA's    denial    of     Ortega's

application for cancellation. Regardless of the substantive merits

of the BIA's conclusions, as a legal matter the BIA found only that

Ortega's second conviction established that a statutory bar "may

apply" to her eligibility for relief, and that Ortega subsequently

did not carry her burden of showing by a preponderance of the

evidence that she was not, in fact, an "aggravated felon."                      See

8 C.F.R. § 1240.8(d) ("If the evidence indicates that one or more

of the grounds for mandatory denial of the application for relief

may apply, the alien shall have the burden of proving by a

preponderance of the evidence that such grounds do not apply.").

The   BIA's     finding   that   Ortega      failed    to   disprove     that    an

aggravated-felon      prohibition   "may      apply"   to   her   case    is    not

equivalent to a finding that Ortega was in fact convicted of an

aggravated felony so as to affect her privileges under 8 U.S.C.

§ 1182.

              Alternately, Ortega argues that this court's reversal of

the BIA's legal holding might yet change the outcome of her case,

because on remand the BIA may revise its discretionary holding in

light   of    her   recent   Alzheimer's      diagnosis.       While     Ortega's

prediction may be plausible, it is one that should be raised on


                                       -8-
petition for review of the BIA's denial of Ortega's motion to

reopen rather than here.    In general, an applicant who wishes to

introduce new evidence to the BIA must do so through a motion to

reopen, not through a remand from the court of appeals.            See He

Chen v. Attorney Gen. of U.S., 388 F. App'x 146, 148 n.1 (3d Cir.

2010) ("[T]o the extent [the petitioner] wishes to present new

evidence to the BIA of changed country conditions, she should do so

in a motion to reopen."); Topalli v. Ashcroft, 121 F. App'x 133,

137 (7th Cir. 2005) ("If [the petitioner] wanted to submit new

evidence, however, he should have submitted it to the BIA as part

of a motion to reopen." (citation omitted)).       At this stage of the

proceedings, where Ortega failed to introduce her medical records

to either the IJ or the BIA, this court does not have authority to

remand   for   the   consideration      of   further   evidence.      See

Castaneda-Castillo v. Holder, 723 F.3d 48, 64 (1st Cir. 2013)

("[R]emanding a case to an immigration agency with the purpose of

having it collect additional evidence, at least at the behest of a

petitioner, appears to be prohibited under a plain reading of

section 242 of the INA . . . ."); 8 U.S.C. § 1252(a)(1).

                           III.   Conclusion

          For the foregoing reasons, we dismiss this petition for

review for lack of jurisdiction.        We neither consider nor affirm

the BIA's finding that Ortega failed to carry her burden to




                                  -9-
establish eligibility for cancellation of removal under 8 U.S.C.

§ 1229b(a).

          The petition for review is dismissed.




                              -10-
