                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 14-1307

                            WILLIAM YAMOAH,

                               Petitioner,

                                     v.

                         LORETTA E. LYNCH,
              Attorney General of the United States,*

                               Respondent.


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


                                  Before

                   Thompson, Lipez, and Kayatta,
                          Circuit Judges.


     Joanna M. Golding and Trupti N. Patel & Associates on brief
for petitioner.
     Stuart F. Delery, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Kathryn L. DeAngelis, Trial Attorney, Office of
Immigration Litigation, United States Department of Justice, on
brief for respondent.


                               May 6, 2016


     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch has been substituted for former
Attorney General Eric H. Holder, Jr., as the respondent.
             LIPEZ, Circuit Judge.        Petitioner William Yamoah seeks

review of a decision denying his application for adjustment of

immigration    status   and   ordering     his   removal   to    Ghana.   An

Immigration Judge ("IJ") denied Yamoah's application based on his

statutory ineligibility for adjustment and, in the alternative, on

discretionary grounds.1       The Board of Immigration Appeals ("BIA")

affirmed the IJ's decision as a matter of discretion.                 Yamoah

petitions for review of the decision.         We dismiss the petition for

want of jurisdiction.

                                     I.

             In November 2007, William Yamoah, a citizen of Ghana,

entered the United States on a one-month business visa and stayed

beyond the authorized period. In July 2008, Yamoah married Tashani

Sherrel Strother, whom he had met his first month in the country.

Following the marriage, Yamoah filed an application to adjust his

immigration status to that of a permanent resident based on

Strother's visa petition for her new husband.                   See 8 U.S.C.

§ 1255(a).




     1 The IJ also denied Yamoah's request for voluntary departure
based on ineligibility and, alternatively, as a matter of
discretion. Yamoah appealed to the Board of Immigration Appeals
("BIA"), challenging the IJ's decision that he was ineligible both
for adjustment of status and voluntary departure. The BIA affirmed
the IJ's decision on both issues as a matter of discretion.
Yamoah, however, has not asked this court to review the BIA's
denial of his request for voluntary departure.


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             In July 2009, U.S. Citizenship and Immigration Services

("USCIS") denied Strother's petition to classify Yamoah as the

spouse of a U.S. citizen due to discrepancies between Yamoah's and

Strother's USCIS interview responses and Strother's subsequent

failure     to   respond      in   a    timely    fashion     to    notice        of   these

discrepancies.       The Department of Homeland Security ("DHS") then

charged Yamoah with removability for remaining in the United States

after his visa expired and issued Yamoah a Notice to Appear in

Immigration Court.           See 8 U.S.C. § 1227(a)(1)(B).              Yamoah conceded

removability      and    indicated        that    he     sought    an    adjustment        of

immigration status or, in the alternative, voluntary departure.

Before     removal   hearings          began,    Strother    filed      a    second      visa

petition for Yamoah, which was approved in June 2011.

             At the March 2012 hearing to decide Yamoah's application

for adjustment of status, Yamoah and Strother both testified.

Their accounts differed with regard to Yamoah's presence at the

birth of Strother's daughter, the reasons that the couple live

apart, the source of Strother's rent payments, and time spent

together.        Additionally, Strother testified that she received

welfare benefits, that she had not told the welfare agency that

she   is   married      to    avoid     losing    some    benefits,         and   that    she

understood that failing to disclose her marriage is a crime.

             At the conclusion of the testimony, the IJ informed DHS

and Yamoah that they could submit written closing statements, if


                                          - 3 -
desired.         Yamoah submitted several items to the court, including

a written closing statement and three affidavits: one from Strother

and two of his own.2

                 On May 1, 2012, the IJ denied Yamoah's application for

adjustment of immigration status and ordered him removed to Ghana.

Based on the "numerous inconsistencies" in Yamoah's and Strother's

testimony, the IJ did not find either credible.              The IJ referenced

the explanations (or lack thereof) provided in the post-hearing

submissions with regard to every inconsistency discussed in the

credibility determination.           Most significant, according to the IJ,

were       the   conflicting   accounts     of   Yamoah's   whereabouts   during

Strother's delivery of her daughter.

                 After finding Yamoah ineligible for adjustment of status

because he provided false testimony as to the bona fides of his

marriage,        see   8   U.S.C.   §§   1182(a)(6)(C)(i),    1255(a),    the   IJ

explained that even if Yamoah were eligible for adjustment, the

court would deny his application as a matter of discretion.                     In

making       this   alternative,     discretionary    determination,      the   IJ

listed Yamoah's U.S. citizen wife and child, four-year residence


       2
       The statement and affidavits attempted to clarify certain
issues and inconsistencies between Yamoah's and Strother's
testimony. The affidavits describe how the two met, the events
surrounding the birth of Strother's daughter, the division of funds
within the household, and time spent together. Furthermore, in
his first affidavit, Yamoah attests that he was unaware that
Strother had committed a crime by not disclosing their marriage to
the welfare agency.


                                         - 4 -
in the United States, payment of taxes, history of employment, and

nonexistent criminal record as positive factors.                          The IJ, however,

found that Yamoah's failure to take post-hearing action to correct

Strother's welfare fraud made him a knowing participant in the

fraud.       This knowing participation, as well as the IJ's finding

that Yamoah falsely testified about his marriage, led the IJ to

decide that Yamoah's negative equities outweighed his positive

equities,         which   justified       a     denial      of      Yamoah's      adjustment

application on discretionary grounds.

              Yamoah appealed to the BIA on the basis that the IJ erred

in finding Yamoah ineligible to adjust.                       The BIA did not address

Yamoah's      eligibility,     but    it       affirmed       the    IJ's    discretionary

decision to deny Yamoah's request for adjustment after assessing

Yamoah's positive and negative equities.                      This timely petition for

review followed.

                                              II.

A.     Legal Framework

              The Attorney General may, at her discretion, adjust the

status of an alien who has been admitted into the United States to

that    of    a    permanent   resident         if    (1)     the    alien     applies   for

adjustment, (2) "the alien is eligible to receive an immigrant

visa    and       is   admissible    to       the    United      States     for    permanent

residence," and (3) an immigrant visa is available to him when he

files his application.              8 U.S.C. § 1255(a).                An alien may be


                                          - 5 -
classified as inadmissible, and thus ineligible for adjustment

under the second prong of § 1255(a), if "by fraud or willfully

misrepresenting a material fact, [the alien] seeks to procure . . .

a visa, other documentation, or admission into the United States

or other benefit provided under" the Immigration and Nationality

chapter of the U.S. Code.      Id. § 1182(a)(6)(C)(i).

             If, however, there are no admissibility obstacles and an

alien in removal proceedings is deemed statutorily eligible, then

the IJ, acting under the authority of the Attorney General,

exercises discretion to determine whether to adjust.             See id.

§ 1255(a).      Unless the petitioner raises a colorable legal or

constitutional claim, id. § 1252(a)(2)(D), under the Immigration

and Nationality Act ("INA"), the courts lack jurisdiction to review

the discretionary decision on a § 1255 adjustment petition, id.

§ 1252(a)(2)(B), (a)(2)(B)(i) ("[N]o court shall have jurisdiction

to review . . . any judgment regarding the granting of relief under

section . . . 1255 . . . ."); see Mele v. Lynch, 798 F.3d 30, 32

(1st Cir. 2015) ("[W]e lack jurisdiction to review the purely

discretionary decisions made under the . . . statutory sections

identified     in   §   1252(a)(2)(B)(i).").   We,     of   course,   have

jurisdiction to examine and determine whether we have jurisdiction

under the statute.      See Mele, 798 F.3d at 31–32.




                                   - 6 -
B.   Scope of Review

           Where the BIA adopts or defers to "the IJ's reasons for

denying [the petitioner's] claims, we review those portions of the

IJ's decision as part of the final decision of the BIA."           Onikoyi

v. Gonzales, 454 F.3d 1, 3 (1st Cir. 2006) (alteration in original)

(quoting Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir.

2004)).    On   those   issues   where   the   BIA   does   not   adopt   or

incorporate the IJ's opinion, we review the BIA's decision alone.

See Sou v. Gonzales, 450 F.3d 1, 6 (1st Cir. 2006); Halo v.

Gonzales, 419 F.3d 15, 18–20 (1st Cir. 2005); see also Yang v.

U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005) ("[W]e

review the judgment of the IJ as modified by the BIA's decision—

that is, minus the single argument for denying relief that was

rejected by the BIA.").     As we discuss below, our review differs

with respect to each of Yamoah's individual claims.

C.   Analysis

           Yamoah's brief includes a plethora of grievances all

under the heading of a due process violation.           These grievances

reduce to three primary arguments: (1) the IJ erred when finding

Yamoah ineligible for adjustment, based on a flawed credibility

finding; (2) when making her discretionary decision, the IJ failed

to allow additional testimony pertaining to Yamoah's participation

in Strother's welfare fraud; and (3) the IJ failed to inform Yamoah

of his eligibility for relief via an I-601 waiver.


                                 - 7 -
             1.   Ineligibility

             Yamoah appealed to the BIA on the ground that the IJ

erred in finding him ineligible for adjustment of status.                   The

BIA's decision neither addressed the matter of eligibility nor

incorporated the IJ's discussion of the matter into its decision.

Therefore, with respect to the eligibility decision, where the BIA

did not incorporate or adopt the IJ's eligibility determination,

we take the BIA's decision alone.         See Halo, 419 F.3d at 18–19.

             Unlike   the   IJ,   the   BIA   did   not   first   find   Yamoah

ineligible before going on to explain that, even if he were

eligible, it would deny adjustment as a discretionary matter.               Nor

did the BIA summarily affirm the IJ's well-reasoned ineligibility

decision.3    Under normal circumstances, if the BIA's position is

unclear, we would remand to ensure that, as the reviewing court,

we can adequately evaluate the agency's final decision.                     See

Gailius v. INS, 147 F.3d 34, 44 (1st Cir. 1998) ("'[A] reviewing



     3 The logical inference from the BIA's decision to forego
discussion of eligibility and move directly to a denial of
adjustment as a matter of discretion is that the BIA assumed, for
argument's sake, Yamoah statutorily eligible for adjustment.
After all, the discretionary decision would have been unnecessary
unless the BIA at least assumed Yamoah eligible for adjustment.
See Ruckbi v. INS, 159 F.3d 18, 19 (1st Cir. 1998) ("Once the alien
has established threshold statutory eligibility, he must
additionally demonstrate to the Attorney General's satisfaction
that he merits relief in the exercise of discretion."). Our review
has been complicated by the BIA's silence on eligibility and the
government's similar failure to respond to Yamoah's arguments
concerning the IJ's eligibility decision.


                                    - 8 -
court . . . must judge the propriety of [administrative] action

solely by the grounds invoked by the agency,' and 'that basis must

be   set   forth    with   such   clarity   as   to   be   understandable.'"

(omission and second alteration in original) (quoting SEC v.

Chenery Corp., 332 U.S. 194, 196 (1947))).            Here, however, remand

is unnecessary because, as we discuss below, the BIA denied

Yamoah's application on an alternative, discretionary ground that

we lack jurisdiction to review.        See 8 U.S.C. § 1252(a)(2)(B)(i).

Where two alternative grounds for a decision exist, and we do not

have jurisdiction to review one, "any opinion of ours reviewing

the nondiscretionary ground could not affect the final order's

validity and so would be advisory only."4         Zajanckauskas v. Holder,

611 F.3d 87, 90 (1st Cir. 2010) (quoting Ekasinta v. Gonzales, 415

F.3d 1188, 1191 (10th Cir. 2005)).          We thus do not review Yamoah's

eligibility claim.

            2.     The discretionary decision

            Yamoah argues that the IJ violated his due process rights

by not giving him an opportunity to address his role in Strother's

welfare fraud, which was referenced as a negative equity in the

decisions of both the IJ and the BIA to deny adjustment as a matter



      4However, where an alternative, nondiscretionary ground forms
the basis for the discretionary judgment, we may review the
nondiscretionary ground. See Restrepo v. Holder, 676 F.3d 10, 16
(1st Cir. 2012); see also Singh v. Gonzales, 468 F.3d 135, 138 (2d
Cir. 2006).


                                    - 9 -
of   discretion.          We    consider     the     two    discretionary       decisions

together.    See Restrepo, 676 F.3d at 15.

            As     stated       above,      the    INA     deprives      the    courts    of

jurisdiction to review such discretionary decisions, unless the

challenge    to     the     decision        involves       claims   that       either    are

constitutional in nature or address questions of law. See 8 U.S.C.

§    1252(a)(2)(B)(i),          (a)(2)(D).          Therefore,      to    complete       the

jurisdictional       analysis,        we    must     determine      whether      Yamoah's

challenge falls within this exception.

            Yamoah argues that the IJ did not give him an adequate

opportunity to address his role in Strother's welfare fraud.                            Even

putting     aside     the       invitation,        submission,        acceptance,        and

consideration of a post-hearing statement and three affidavits

from Yamoah and Strother, Yamoah does not explain what efforts he

made to submit any additional evidence or the substance of such

evidence.         Yamoah attempts to repackage the weighing of the

equities by the IJ and BIA and the ultimate decision to deny his

adjustment request as a due process violation.                             But we have

previously held that "cloaking" or "[s]tyling" factual arguments

as constitutional claims does not alone make them so.                            Ramirez-

Matias v. Holder, 778 F.3d 322, 326 (1st Cir. 2015); Alvarado v.

Holder,     743     F.3d       271,   275     (1st       Cir.   2014).         Rather,     a

constitutional claim must be colorable -- in other words, "at least

potentially valid" -- to confer jurisdiction upon the courts.


                                           - 10 -
Alvarado, 743 F.3d at 275.   Yamoah's claim ultimately takes issue

with the weight assigned by the IJ, and later by the BIA, to

Yamoah's role in Strother's welfare fraud.     This claim cannot be

characterized as a colorable constitutional claim and therefore

falls outside of our jurisdiction.5    See Mele, 798 F.3d at 31–33.

          3.   The I-601 waiver

          Yamoah also asserts that the IJ failed to inform him

that he could file an I-601 waiver application in support of his

adjustment application, and he claims this failure violated his

due process rights.6    Judicial review of a claim challenging a

final removal order is appropriate only if all administrative

remedies have first been exhausted.      8 U.S.C. § 1252(d)(1); see

also, e.g., Ramirez-Matias, 778 F.3d at 327.   Yamoah did not raise

this issue in his appeal to the BIA and thus has not exhausted his

claim. Moreover, no exceptions to the exhaustion requirement apply

to Yamoah's claim of procedural error.      See Lima v. Holder, 758

F.3d 72, 81–82 (1st Cir. 2014).        As a result, we do not have



     5 To the extent that Yamoah also challenges the discretionary
denial on the basis that he provided false testimony, the claim
similarly fails.
     6 A Form I-601 is an application to waive a ground of
inadmissibility, such as willful misrepresentation under 8 U.S.C.
§ 1182(a)(6)(C)(i), and thereby re-establish eligibility for a
status adjustment.   See U.S. Citizenship & Immig. Servs., U.S.
Dep't of Homeland Sec., OMB No. 1615-0029, Instructions for
Application for Waiver of Grounds of Inadmissibility 1, 11 (May
22, 2015).


                              - 11 -
jurisdiction to hear Yamoah's I-601 claim.7    See Mazariegos-Paiz

v. Holder, 734 F.3d 57, 62 (1st Cir. 2013).

                               III.

          For the foregoing reasons, the petition is dismissed.




     7 Even if Yamoah had exhausted his administrative remedies
when raising this challenge, he could not demonstrate the prejudice
he asserts from the IJ's alleged failure to advise him of the I-
601 waiver, because the BIA ultimately rested its denial of his
application for adjustment on discretionary grounds.


                              - 12 -
