Bronny Alexander Villar v. Loretta E. Lynch, United States Attorney General

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1573
BRONNY ALEXANDER VILLAR,
Petitioner,
v.
LORETTA E. LYNCH,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Paul M. Glickman and Glickman Turley LLP on brief for
petitioner.
Benjamin C. Mizer, Principal Deputy, Assistant Attorney
General, Civil Division; Ernesto H. Molina, Jr., Assistant
Director, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice; and Anthony P. Nicastro, Senior Litigation
Attorney, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, on brief for respondent.
September 6, 2016

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LIPEZ, Circuit Judge. Petitioner Bronny Alexander
Villar seeks relief from a ruling by the Board of Immigration
Appeals ("BIA") affirming an Immigration Judge's ("IJ") decision
that denied Villar's application for adjustment of status and
ordered him removed from the United States. We lack jurisdiction
to consider Villar's request for relief, however, because the
agency's decision was discretionary. See, e.g., Mele v. Lynch,
798 F.3d 30, 31-32 (1st Cir. 2015). Hence, we must dismiss his
petition for review.
We recount the salient facts. Villar is a native and
citizen of the Dominican Republic who entered the United States in
October 2006 as a non-immigrant visitor authorized to remain in
the country through March 31, 2007. Shortly before that period
expired, Villar applied to adjust his status to that of a lawful
permanent resident based on his marriage to a United States
citizen. His application was denied. In 2009, the Department of
Homeland Security began removal proceedings against him.
Within the removal proceedings, Villar again filed an
application for adjustment of status. The IJ determined that
Villar was eligible, see 8 U.S.C. § 1255(a), but ultimately
concluded that the equities weighed against the grant of such
discretionary relief. The IJ found that the favorable factors --
including his marriage to an American citizen, three U.S. citizen
children, his payment of taxes, and his filing of tax returns --

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were outweighed by Villar's purchase and use of a phony birth
certificate to obtain a driver's license and his extended use of
that false identity. The IJ described this conduct as
"extraordinar[il]y serious." The BIA, weighing de novo the same
adverse and positive factors, affirmed the IJ's ruling and
dismissed Villar's appeal. 1
In his brief to us, Villar claims that "[t]he IJ and BIA
committed an error of law by creating and adopting[] a new standard
of 'extraordinarily serious'" acts to deny him adjustment of
status, instead of examining whether his conduct fit a category
specified by statute and defined in case law, such as "a
particularly serious crime." 8 U.S.C. § 1158(b)(2)(A)(ii). This
contention, however, is plainly an attempt to frame the agency
decision as a legal judgment -- rather than a discretionary, fact-
based one -- to avoid the strict limits on our jurisdiction to
review discretionary immigration decisions. See Mele, 798 F.3d at
32. Notably, we "retain jurisdiction to decide colorable
1 The BIA stated:
The respondent used the fraudulent birth
certificate to obtain a driver's license and
assumed the identity on the birth certificate,
Luigi Alvarado, as his own for numerous years.
The seriousness of the respondent's actions
was further aggravated when he was arrested
and presented himself to police officers as
Luigi Alvarado.
BIA Op. at 2 (citation omitted).

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'constitutional claims or questions of law' embedded within a
petition for review of an alien's application for an adjustment of
status." Id. (emphasis added) (quoting 8 U.S.C. § 1252(a)(2)(D)).
We readily conclude, however, that Villar's effort to
identify an issue of law falls short. The presence of a legal
question is "a matter of substance, not a function of labeling."
Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir. 2010). We have
previously said that "[s]imply describing . . . factual arguments
as a claim that the agency committed an error of law is
insufficient to confer jurisdiction." Jaquez v. Holder, 758 F.3d
434, 435 (1st Cir. 2014). This is exactly what Villar has done.
His claim that the IJ created and applied a new, incorrect legal
standard is an attempt to cloak a disagreement with the IJ's
weighing of the facts in the guise of a question of law. As
described above, the IJ and BIA concluded, in their discretion and
as a factual matter, that the positive equities of Villar's case

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were outweighed by his creation and use of a false identity. 2 We
do not have jurisdiction to review that discretionary judgment. 3
Accordingly, we dismiss Villar's petition. So ordered.
2 The IJ explicitly described her decision as discretionary:
"Although the Court finds the respondent to be statutorily eligible
for adjustment of status, the Court denies the application in the
exercise of its discretion." (Emphasis added.) The BIA "agree[d]
with the Immigration Judge's determination that negative factors
exist in this case warranting denial of the respondent's
application for adjustment of status as a matter of discretion."
(Emphasis added.)
3 Because Villar did not raise his claim of legal error in
his appeal to the BIA, we also could dismiss his petition for
failure to exhaust his administrative remedies. See, e.g., Pérez
Batres v. Lynch, 796 F.3d 157, 159-60 (1st Cir. 2015) (explaining
that we lack jurisdiction to review claims "not advanced before
the BIA" (quoting Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir.
2004))).

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