          United States Court of Appeals
                    For the First Circuit


No. 18-1243

                       CARLOS M. RIVERA,

                          Petitioner,

                              v.

                  JEFFERSON B. SESSIONS, III,
                       ATTORNEY GENERAL,

                          Respondent.


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


                            Before

                   Lynch, Selya, and Lipez,
                        Circuit Judges.


     Sameer H. Hasan and Hasan Law Group PLLC on brief for
petitioner.
     Lisa M. Damiano, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Chad A.
Readler, Acting Assistant Attorney General, Civil Division, and
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.


                       September 6, 2018
            LYNCH, Circuit Judge.        Carlos M. Rivera, a native and

citizen of Guatemala who entered the United States illegally in

1992, seeks review of a February 2018 Board of Immigration Appeals

(BIA) final decision denying his application for cancellation of

removal pursuant to section 240A(b)(1) of the Immigration and

Nationality Act (INA), 8 U.S.C. § 1229b(b)(1).1           An immigration

judge (IJ) denied Rivera's request, in part due to the criminal

charges pending against Rivera of child molestation of his ex-

wife's then-twelve-year-old granddaughter.         The BIA affirmed the

IJ and dismissed the appeal on the bases that Rivera had failed to

demonstrate   exceptional   and   extremely     unusual   hardship    to   a

qualifying relative, and also that he did not establish that he

warranted cancellation of removal as a matter of discretion.          That

is the order now before us.   We dismiss Rivera's petition for lack

of jurisdiction over his attacks on the BIA's decision.

                                    I.

            We give more details on the background facts.            Rivera

last entered the United States without admission or inspection in

1992.




        1 Rivera had entered the United States without inspection
in 1992, and an immigration judge issued an order of removal in
2012, which the BIA affirmed.     Rivera voluntarily dismissed an
appeal to this court.    For reasons explained below, Rivera was
heard on an application for cancellation of removal in 2017, which
was denied.


                                  - 2 -
A.   Prior Proceedings

             In   January   2008,   the   U.S.   Department   of   Homeland

Security (DHS) served Rivera with a Notice to Appear in removal

proceedings.       At a hearing before an IJ in May 2012, Rivera

conceded removability, but sought cancellation of removal pursuant

to INA § 240A(b)(1) and the Nicaraguan Adjustment and Central

American Relief Act of 1997 (NACARA), Pub. L. No. 105-100, §§ 201-

204, 111 Stat. 2160, 2196-2201 (codified as amended in scattered

sections of 8 U.S.C.). In the alternative, Rivera sought voluntary

departure.    Rivera and his former wife had applied for relief and

listed their then-minor daughter, Jackelyn, who is a U.S. citizen,

as the qualifying relative.

             The IJ denied Rivera's application in July 2012.2          The

BIA found no error on Rivera's appeal of that decision.            In April

2015, Rivera filed a motion before the BIA to reopen and remand

the proceedings, arguing ineffective assistance of his counsel.


     2    The IJ found that Rivera was not entitled to relief under
NACARA because he was unable to meet his burden of showing either
that he entered the United States on or before October 1, 1990, or
that he timely registered for benefits under the ABC settlement
agreement. See Am. Baptist Churches v. Thornburgh, 760 F. Supp.
796 (N.D. Cal. 1991); 8 C.F.R. §§ 1240.60, 1240.61(a)(1)-(2). The
IJ further found that Rivera failed adequately to establish ten
years of continuous physical presence for purposes of INA
§ 240A(b)(1).   INA § 240A(b)(1)(A); 8 U.S.C. § 1229b(b)(1)(A).
The IJ also denied the request for voluntary departure due to
Rivera's inability to establish by clear and convincing evidence
that he intended to depart the United States, and because Rivera
did not have valid travel documents. INA § 240B(b)(1)(A)-(D); 8
C.F.R. § 1240.26(c).


                                    - 3 -
The   BIA   initially   denied    Rivera's   motion,    but   granted    his

subsequent motion to reconsider the decision in September 2015,

after DHS did not file an opposition.         The BIA remanded the case

to the IJ for further proceedings as to Rivera's application for

cancellation of removal under INA § 240A(b)(1).3

B.    Present Case

            Rivera's    updated   April    2017    application   under   INA

§ 240A(b)(1) listed Marlen Castaneda, his new wife as of August

2016, as the qualifying relative (his daughter Jackelyn had turned

twenty-one in the interim and no longer qualified).                 Rivera

testified that Castaneda suffers from anxiety, depression, and

problems with her back, and that she takes medication for back

pain, anxiety, and cholesterol.       Castaneda's testimony confirmed

this, and she attributed her depression to Rivera's detention.4

Castaneda works as a cosmetologist and drives herself to her

various appointments.

            Rivera has been arrested five times, in 1992, 1995, 1997,

2007, and 2016; three of the arrests resulted in dismissal of all

charges.    The 1992 arrest was for sexual battery, but he pleaded

guilty to simple assault and battery.             The 2016 arrest was for



      3   Rivera also successfully moved to sever his removal
proceedings from that of his wife after they divorced in May 2015.
      4   Immigration and Customs Enforcement detained Rivera in
March 2017 due to pending criminal charges of child molestation.


                                   - 4 -
child   molestation       of    Rivera's    ex-wife's      then-twelve-year-old

granddaughter; the charges were still pending as of his hearing

date before the IJ.            Rivera invoked his Fifth Amendment right

against self-incrimination when asked for further details relating

to the 2016 arrest, so the government offered police reports

relating to the incident, over Rivera's objection.

            The IJ denied Rivera's application for relief under INA

§ 240A(b)(1) on September 6, 2017.              The IJ had "misgivings" about

Rivera's credibility, but declined to make an explicit adverse

credibility finding.            The IJ found that Rivera had failed to

establish that Castaneda would suffer exceptional and extremely

unusual hardship if Rivera were removed.                    The IJ noted that

Castaneda's back problems began several years before she married

Rivera,     she   had    not     required   overnight      hospitalization      in

connection with her back injuries, she did not apply for and was

not   receiving    disability        benefits,    and   that    her   anxiety   and

depression were not unusual for those with loved ones in similar

proceedings.      The IJ also found the suggestions of Castaneda's

potential financial hardship to be speculative, and noted that

Castaneda    works      and    had   supported   herself    before    her   recent

marriage to Rivera.

            The IJ additionally denied Rivera's application under

INA § 240A(b)(1) as a matter of discretion.                    The IJ found that

Rivera had several "positive equities" in his favor: he entered


                                        - 5 -
the United States in the early 1990s, had a wife and daughter who

were U.S. citizens, was active in church, worked, paid his taxes,

and had no contacts in Guatemala.            The IJ drew negative factors

from Rivera's criminal record: the arrest in 1992 for sexual

battery, for which Rivera pled guilty to simple assault and

battery, and "[m]ost recently, and most seriously," the 2016 arrest

for first and second degree child molestation.             The IJ drew an

adverse inference from Rivera's invocation of the Fifth Amendment,

and concluded in light of the serious, pending charges that Rivera

had not met his burden of establishing that he merited a favorable

exercise of discretion.

          Rivera timely appealed, and the BIA entered a four-page

order affirming the IJ's decision.           The BIA determined that the

IJ's findings were not clearly erroneous, and that Rivera had not

demonstrated    that   Castaneda      "would    suffer   hardship    in   the

aggregate substantially different from, or beyond, that which

would normally be expected from removal of an alien with close

family members here."     The BIA further concluded that Rivera had

not   carried   his    burden   of     demonstrating     that   he   merited

cancellation of removal as a matter of discretion, because even

when Rivera's positive factors are viewed "in the best light for

[Rivera], they are outweighed by his criminal history."              The BIA

rejected Rivera's due process arguments, concluding that the IJ

properly considered the arrest for the pending child molestation


                                     - 6 -
charge, as well as the invocation of his Fifth Amendment rights.

The BIA also rejected Rivera's claim that he was deprived of a

fundamentally fair hearing, because the IJ provided Rivera with a

meaningful opportunity to be heard.         Furthermore, the BIA found no

showing of prejudice, as Rivera had not demonstrated that he was

unable to fully present his claim.

                                     II.

           Courts      are   statutorily    barred   from       reviewing   "any

judgment regarding the granting of relief under section . . .

1229b," the cancellation of removal provision, unless the petition

raises "constitutional claims or questions of law."                   8 U.S.C.

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

(1st Cir. 2013); Santana-Medina v. Holder, 616 F.3d 49, 52 (1st

Cir.   2010).     "A    bare   allegation   of   either     a    constitutional

shortfall or legal error" will not suffice, however.                  Ayeni v.

Holder, 617 F.3d 67, 71 (1st Cir. 2010).          To confer jurisdiction,

"the claim of constitutional or legal error must at least be

colorable."     Id.

           No colorable legal or constitutional claim is stated.

Rivera argues that there is legal error, positing that the BIA

failed to follow its own precedent.              He relies on Matter of

Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001), for the proposition

that the IJ should have made a "specific finding regarding the[]

overall severity" of Castaneda's health issues.                 However, Matter


                                    - 7 -
of Monreal-Aguinaga simply states that a "strong applicant might

have a qualifying child with very serious health issues, or

compelling special needs in school."                Id. at 63 (emphasis added).

Rivera misreads that decision, which does not require a specific

finding as to the overall severity of a qualifying relative's

health issues.           See generally id.     Matter of Monreal-Aguinaga only

requires         that    "all   hardship    factors     [be]       considered   in   the

aggregate         when    assessing    exceptional       and       extremely    unusual

hardship."5        Id. at 64.

                 Rivera's argument, in reality, concerns the "relative

evidentiary weight or level of detail accorded to specific facts

in the agency's hardship determination," so we may not consider

it.    Alvarado v. Holder, 743 F.3d 271, 275 (1st Cir. 2014).                          A

petitioner "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."                 Ramirez-Matias v. Holder, 778

F.3d 322, 326 (1st Cir. 2015) (citing Alvarado, 743 F.3d at 275).

                 Rivera also argues that there was constitutional due

process         error.     That   claim,    too,   is   not    colorable.       Rivera

challenges as a denial of due process the admission of the police



       5  In any event, the IJ both considered all of Castaneda's
health problems cumulatively, and explained the reasons for
finding them insufficient.


                                           - 8 -
report    detailing    the   pending   child    molestation     charges,   the

adverse inference drawn from Rivera's invocation of his Fifth

Amendment rights with regard to those charges, and the denial of

his   request   to    continue    proceedings    until   the    charges    were

resolved.

            Rivera's mere "invocation of the Due Process Clause does

not create a constitutional claim for the purpose of 8 U.S.C.

§ 1252(a)(2)(D)."      Cruz-Orellana v. Sessions, 878 F.3d 1, 5 (1st

Cir. 2017).     The BIA found that Rivera had had a fair hearing and

there was no violation of due process.           A claim of deprivation of

due process requires that a "'cognizable liberty or property

interest be at stake.'"          Kandamar v. Gonzales, 464 F.3d 65, 69

(1st Cir. 2006) (quoting DaCosta v. Gonzales, 449 F.3d 45, 50 (1st

Cir. 2006)).     Rivera cannot demonstrate that he has a protected

liberty     interest    here,     as   we      have   already     held     that

"[d]iscretionary forms of relief do 'not rise to the level of such

a protected interest.'"       Id. (quoting DaCosta, 449 F.3d at 50).

            And even if there were a protected interest at stake,

none of Rivera's arguments even colorably raise a due process claim

under our cases.       The police report was admissible and, in any

event, Rivera's witnesses established the key facts.               See Cruz-

Orellana, 878 F.3d at 5 (rejecting argument that IJ violated

petitioner's due process rights "by relying on a police report

that contained hearsay in denying him voluntary departure as a


                                    - 9 -
matter of discretion").         The drawing of an adverse inference was

not even arguably a due process violation.             See Garcia-Aguilar v.

Lynch, 806 F.3d 671, 676 (1st Cir. 2015) (noting that "an IJ may

draw an adverse inference from an alien's invocation of the Fifth

Amendment    during    removal    proceedings,"       and    that      the   IJ   was

permitted    to    conclude    that    petitioner's    silence         corroborated

certain documentation). The argument regarding denial of a further

continuance to await the outcome of the criminal proceedings is

even weaker.      See Amouri v. Holder, 572 F.3d 29, 36 (1st Cir. 2009)

("The grant or denial of a continuance rests largely in the

discretion of the [IJ].          While that authority must be exercised

judiciously and with an eye toward fundamental fairness, even the

arbitrary denial of a continuance cannot sink to the level of a

due process violation unless it results in actual prejudice."

(citation omitted)).6

             Moreover, "before a petitioner in an immigration case

may advance a procedural due process claim, he must allege some

cognizable     prejudice      fairly    attributable        to   the     challenged

process."     Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004).


     6    Indeed, Rivera may have benefitted from the denial of a
continuance. The respondent tells us that in June 2018, Rivera
was convicted in Rhode Island of one count of first degree child
molestation and two counts of second degree child molestation.
See Amouri, 572 F.3d at 36 ("'A court will find such prejudice
only when it is shown that an abridgement of due process is likely
to have affected the outcome of the proceedings.'" (quoting Pulisir
v. Mukasey, 524 F.3d 302, 311 (1st Cir. 2008))).


                                       - 10 -
Rivera has made no such showing here.   Accordingly, there is no

jurisdiction over these claims.   See id.; Alvarado, 743 F.3d at

275.

                              III.

          For the reasons set forth above, Rivera's petition for

review is dismissed for lack of jurisdiction.




                             - 11 -
