     Case: 15-60804       Document: 00514250927         Page: 1     Date Filed: 11/28/2017




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

                                                                                       FILED
                                     No. 15-60804                              November 28, 2017
                                   Summary Calendar
                                                                                  Lyle W. Cayce
                                                                                       Clerk
SAID ACOSTA NEPOMUCENO, also known as Said Acosta,

                                                  Petitioner

v.

JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A078 135 020


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Said Acosta Nepomuceno, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissing his appeal,
regarding the Immigration Judge’s (IJ) order pretermitting his application for
cancellation of removal. He claims the BIA and IJ erred in concluding he could
not meet the required seven years of continuous residency after finding he was




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 15-60804    Document: 00514250927     Page: 2   Date Filed: 11/28/2017


                                 No. 15-60804

paroled into the United States, but not admitted in any status, prior to his 17
August 2005 adjustment to lawful permanent resident.
      Nepomuceno does not dispute the finding he was removable according to
8 U.S.C. § 1227(a)(2)(B)(i) based upon his convictions for offenses involving
controlled substances and has, therefore, abandoned any challenge on that
basis. Sama v. Hannigan, 669 F.3d 585, 589 (5th Cir. 2012); Soadjede v.
Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). And, because Nepomuceno is
removable as a criminal alien, we have jurisdiction to consider only
constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C), (D); Brieva-
Perez v. Gonzales, 482 F.3d 356, 359 (5th Cir. 2007).
      Accordingly, we lack jurisdiction to consider Nepomuceno’s fact-based
claims.   Escudero-Arciniega v. Holder, 702 F.3d 781, 785 (5th Cir. 2012);
Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007). Moreover, we lack
jurisdiction to consider whether the IJ should have made an adverse inference
regarding the Government’s failure to produce a more substantial immigration
file because, by failing to raise the issue before the BIA, Nepomuceno did not
exhaust his administrative remedies. 8 U.S.C. § 1252(d)(1); Omari v. Holder,
562 F.3d 314, 321 (5th Cir. 2009); Wang v. Ashcroft, 260 F.3d 448, 452–53 (5th
Cir. 2001).
      To the extent Nepomuceno raises a question of law by asserting he was
admitted in any status when immigration officials allegedly “waved” him
through inspection, his claim is without merit because the IJ expressly
concluded he was paroled into the country, not admitted; therefore, because we
lack jurisdiction for this fact-based claim, the question of his “status” is
immaterial. Tula-Rubio v. Lynch, 787 F.3d 288, 290–91 (5th Cir. 2015).
      DENIED in part and DISMISSED in part.




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