          United States Court of Appeals
                      For the First Circuit


No. 14-1056

                       JUAN RAMIREZ-MATIAS,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE

                   BOARD OF IMMIGRATION APPEALS



                              Before

                   Howard, Selya and Thompson,
                         Circuit Judges.



     Kevin MacMurray and MacMurray & Associates on brief for
petitioner.
     Stuart F. Delery, Assistant Attorney General, Civil Division,
Leslie McKay, Assistant Director, and Melissa Neiman-Kelting,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.



                        February 13, 2015
             SELYA, Circuit Judge.          Federal courts are courts of

limited jurisdiction — and those limits demand strict adherence.

As we explain below, the petitioner crosses this jurisdictional

line.

             The petitioner's claims of error can be divided into two

tranches.     The first tranche involves an agency decision under the

Nicaraguan Adjustment and Central American Relief Act (NACARA), see

Pub.    L.   No.   105-100,   §§   201-204,   111    Stat.   2160,    2196-2201

(codified as amended in scattered sections of 8 U.S.C.) — a

decision that Congress has removed from the jurisdiction of the

Article III courts.       See 8 U.S.C. § 1252(a)(2)(B).              The second

tranche involves claims of error that are unexhausted and, thus,

unsuitable for judicial review. See, e.g., Wan v. Holder, ___ F.3d

___, ___ (1st Cir. 2015) [Nos. 13-1893, 14-1285, slip op. at 7]

(explaining that an alien must exhaust all administrative remedies

to confer jurisdiction on a federal court).

             The facts are straightforward.         Petitioner Juan Ramirez-

Matias, a Guatemalan national, entered the United States without

inspection in 1990 and has remained unlawfully, save for a two-

month visit to his homeland.        In August of 2008, the Department of

Homeland Security commenced removal proceedings against him.                See

8 U.S.C. § 1182(a)(6)(A)(i).        The petitioner conceded removability

and cross-applied for discretionary relief under NACARA in the form

of special rule cancellation of removal or, in the alternative, for


                                      -2-
asylum, withholding of removal, or protection under the United

Nations Convention Against Torture (CAT).

           Although the petitioner admitted that he had neither been

threatened nor physically harmed while residing in Guatemala, he

asserted that he left to escape an ongoing civil war.    He claimed

to fear returning to Guatemala because his return would bring back

negative memories of the war.   As an additional ground for relief,

he argued that he does not wish to be separated from his children

(one of whom is a special needs child) and that, if he takes his

children to Guatemala, he will not be able to support them.

           The discretionary nature of NACARA relief brought the

petitioner's moral character into issue before the immigration

judge (IJ).   In his testimony, the petitioner was confronted with

two earlier domestic violence charges.    The first — for battery —

occurred in 1994; the second — for assault — occurred in 2006.

           The police report for the first incident states that the

petitioner's first wife, displaying visible marks, complained to

the responding officers that he had struck her several times in the

face.   Both the petitioner and his first wife testified before the

IJ and contradicted this account.

           The 2006 police report states that the police responded

to a call reporting a domestic dispute.     There, the petitioner's

second wife told police that the petitioner had struck her in the

face and mouth.   She had a bruise on her face and a bleeding cut on


                                -3-
her lip consistent with this account. Before the IJ, however, both

the petitioner and his second wife disclaimed this version of

events.

          The IJ denied the petitioner's entreaties for special

rule cancellation of removal, asylum, withholding of removal, and

CAT protection.   He premised his decision denying special rule

cancellation of removal on a finding that, although the petitioner

met the continuous physical presence requirement and demonstrated

the requisite level of hardship with respect to his special needs

child, he did not merit a favorable exercise of discretion.     In

this regard, the IJ expressed grave concern about the domestic

assault charges and what he characterized as perjurious testimony

by the petitioner and his two witnesses.   The IJ also denied the

petitioner's asylum and withholding of removal claims (finding,

inter alia, that he neither was a victim of past persecution nor

subject to a well-founded fear of future persecution) and rejected

the CAT claim as well (noting that the petitioner had made no

showing that he would be tortured if repatriated).

          The petitioner appealed to the Board of Immigration

Appeals (BIA). His appeal focused almost exclusively on the denial

of his NACARA claim and made only a perfunctory protest of the

denial of his other claims.    The BIA upheld the IJ's denial of

special rule cancellation of removal under NACARA as an appropriate

exercise of discretion.   At the same time, the BIA affirmed the


                               -4-
IJ's rejection of the petitioner's remaining claims for relief.

This timely petition for judicial review followed.

             In this venue, the petitioner attempts to pursue two

lines of attack.      First, he asseverates that the denial of special

rule cancellation of removal constituted an abuse of discretion.

Second, he asseverates that the denial of his other requests for

relief was unwarranted.1         Where, as here, the BIA adopts and

affirms the IJ's decision but adds reasoning of its own, we review

the tiered decisions as a unit.       See Chen v. Holder, 703 F.3d 17,

21 (1st Cir. 2012); Berrio-Barrera v. Gonzales, 460 F.3d 163, 167

(1st Cir. 2006).

             We start with the denial of the petitioner's application

for special rule cancellation of removal. That application invoked

NACARA, a statute that amended the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 to allow certain aliens

(including    those    from   Guatemala)   to   apply   for   special   rule

cancellation of removal.       See Gonzalez-Ruano v. Holder, 662 F.3d

59, 60-61 (1st Cir. 2011).       NACARA enables non-citizen aliens who

are facing removal to apply for "discretionary relief under prior,

more generous statutory standards."        Id. at 60.

             To qualify for relief under NACARA, a Guatemalan national

must have entered the United States on or prior to October 1, 1990,


     1
       In this court, as in the proceedings before the BIA, the
petitioner has not attempted to make out a CAT claim. Thus, we
make no further reference to such a claim.

                                    -5-
and must have registered for benefits under American Baptist

Churches, Inc. v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991)

prior to December 31, 1991.2             See NACARA, Pub. L. No. 105-100, sec.

203(a)(1), § 309(c)(5)(C)(i)(I)(bb), 111 Stat. at 2197 (codified at

8   U.S.C.         1101   note);   8     C.F.R.    §§   1240.61(a);    1240.66(a).

Additionally, such a person (who, like the petitioner, is not

inadmissible under 8 U.S.C. § 1182(a)(2) or (3)) must demonstrate

a seven-year period of continuous presence in the United States,

good       moral    character,     and   extreme    hardship.     See    8   C.F.R.

§ 1240.66(b); see also Gonzalez-Ruano, 662 F.3d at 61.                         The

applicant has the burden of proving by preponderant evidence that

he satisfies these baseline eligibility requirements. See 8 C.F.R.

§§ 1240.64(a), 1240.66; see also Gonzalez-Ruano, 662 F.3d at 61.

If so, the applicant must then persuade the immigration court that

he merits a favorable exercise of its discretion.                     See 8 C.F.R.

§ 1240.64(a); see also Gonzalez-Ruano, 662 F.3d at 61.

               In this instance, the IJ (and, on appeal, the BIA)

balanced the positive and negative equities and found, as an

exercise of discretion, that the petitioner was not entitled to

relief.       As a general rule, federal courts lack jurisdiction to

review discretionary decisions denying relief from removal.                   See 8

U.S.C. § 1252(a)(2)(B); see also Ayeni v. Holder, 617 F.3d 67, 70



       2
       There is no dispute here that the petitioner meets these
threshold requirements.

                                           -6-
(1st Cir. 2010). But this rule, like virtually every other general

rule, admits of exceptions.       One such exception inures when the

claim   presented     to   a    federal       court     embodies     colorable

constitutional    claims   or   questions      of     law.     See   8   U.S.C.

§ 1252(a)(2)(D); see also Castro v. Holder, 727 F.3d 125, 128 (1st

Cir. 2013); Gonzalez-Ruano, 662 F.3d at 63.                  The petitioner's

argument is confused, but we read it (favorably to him) as implying

that his case comes within the compass of this exception.

          In     determining    whether   a    petitioner      has   raised   a

colorable constitutional claim or question of law, substance must

triumph over form.      An alien cannot "transform an unreviewable

issue of fact into a reviewable issue of law" by the simple

expedient of cloaking what is essentially a factual claim in the

raiment of constitutional or legal error.           Alvarado v. Holder, 743

F.3d 271, 275 (1st Cir. 2014).       Put another way, we must look to

the meat of the petitioner's arguments, not to the packaging in

which they are wrapped.    See Ayeni, 617 F.3d at 70-71.

          Despite the petitioner's efforts at creative labeling, we

discern here no colorable constitutional claim or question of law.

In his petition for judicial review and his accompanying brief, the

petitioner's argument is quite pointed.             He submits that the IJ

bungled the decision on special rule cancellation of removal by

relying on hearsay evidence (particularly the police reports) to

determine that the petitioner did not deserve a favorable exercise


                                    -7-
of discretion. This was error, the petitioner insists, because the

police reports were contradicted by live testimony.          Thus, the IJ

gave the police reports "too much weight."          And to make a bad

situation worse, the IJ (so the petitioner says) failed to assess

the "probative value" of the police reports properly, and should

have discounted them in the interest of "fundamental fairness."

             We think it readily apparent that the petitioner's attack

on   the   agency's   decisionmaking   with   respect   to   special   rule

cancellation of removal is hopelessly factbound.        There is no hint

of any cognizable constitutional claim or question of law. Rather,

the petitioner's plaint depends on an assertion that the IJ abused

his discretion by mis-weighing the evidence before him and that the

BIA, in turn, improvidently placed its imprimatur on that mis-

weighing.     At the heart of this assertion is the petitioner's

disagreement with the agency's view of the relative credibility of

the police reports and the testimony proffered to contradict them.

That is a factual determination and, therefore, a determination

that we have no jurisdiction to review.        See Castro, 727 F.3d at

129-30 (concluding, in NACARA case, that court lacked jurisdiction

because the petitioner's claims on appeal merely attacked factual

findings).     While Rumpelstiltskin may have claimed the ability to

transform dross into gold, the petitioner cannot, by word play and

exhortation, transform a factual question into a question of law.




                                  -8-
          That ends this aspect of the matter.      Simply put, a

challenge to the way in which the agency weighed the evidence and

balanced negative and positive factors is not a claim that raises

a legal question. See Santana-Medina v. Holder, 616 F.3d 49, 52-53

(1st Cir. 2010); Elysee v. Gonzales, 437 F.3d 221, 223-24 (1st Cir.

2006).   It follows inexorably that, in the circumstances of this

case, we lack jurisdiction to review the agency's denial of special

rule cancellation of removal.

          The petitioner's remaining remonstrance implicates the

denial of asylum and withholding of removal.    He predicates this

remonstrance on his putative membership in a social group comprised

of indigenous Guatemalans.   Members of this social group, he says,

were persecuted during Guatemala's Civil War, and he claims to have

fled from his homeland because he feared the Guatemalan military

and knew that the government was unwilling (or, at least, unable)

to protect him.

          Although this theory (or a variation of it) was arguably

advanced before the IJ and is spelled out in the petitioner's brief

in this venue, there is a threshold problem.    The petitioner did

not present this theory to the BIA.   Instead, he concentrated his

fire on his NACARA claim and paid no more than lip service to his

other claims.   The petitioner's perfunctory assertion that the IJ




                                -9-
erred in denying other forms of relief was made only in generalized

and non-specific terms.3

           Faced with an absence of developed argumentation, the BIA

concluded that the petitioner had failed meaningfully to address

the merits of the IJ's denial of asylum and withholding of removal.

In immigration cases, an alien cannot leapfrog over the BIA; that

is, he cannot proffer a theory to the IJ, forgo any presentation of

that theory to the BIA, and then resurrect the theory on a petition

for judicial review.      See Wu v. Holder, 705 F.3d 1, 3 (1st Cir.

2013); Sombah v. Mukasey, 529 F.3d 49, 52 (1st Cir. 2008).                  A

failure   to   present   developed    argumentation   to   the   BIA   on   a

particular theory amounts to a failure to exhaust administrative

remedies as to that theory.     See Makhoul v. Ashcroft, 387 F.3d 75,

80 (1st Cir. 2004) (explaining that "theories not advanced before

the BIA may not be surfaced for the first time in a petition for

judicial review of the BIA's final order").

           It is apodictic that a court lacks jurisdiction to review

unexhausted claims.      See 8 U.S.C. § 1252(d)(1); Wan, ___ F.3d at

___ [slip op. at 7]; Berrio-Barrera, 460 F.3d at 167; Makhoul, 387

F.3d at 80.    Accordingly, it is not within our proper province to

entertain the petitioner's unexhausted theory as to why the IJ


     3
       To be specific, the petitioner's brief to the BIA asserted
only that the IJ "made material errors of law, discretion and fact"
in connection with the denial of asylum and withholding of removal.
The brief did not attempt to illuminate this conclusory assertion
in any way, shape, or form.

                                     -10-
supposedly erred in denying him asylum and/or withholding of

removal.

             We need go no further. For the reasons elucidated above,

we   dismiss    the   petition   for   judicial   review   for   want   of

jurisdiction.



Dismissed.




                                   -11-
