Jorge Jesus Colin-Alcantar v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE JESUS COLIN-ALCANTAR,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 21-380
Agency No.
A077-291-928
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 17, 2023**
San Francisco, California
Before: BEA, CHRISTEN, and JOHNSTONE, Circuit Judges.
Jorge Jesus Colin-Alcantar, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) order denying his application
for adjustment of status and deeming waived his application for cancellation of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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removal. Because the parties are familiar with the facts, we do not recount them
here. We dismiss the petition for review.
We lack jurisdiction to review an order denying adjustment of status or
cancellation of removal as its issuance is committed to the discretion of the
Immigration Judge (IJ) and the BIA. 8 U.S.C. § 1252(a)(2)(B)(i). We retain
jurisdiction over “constitutional claims or questions of law,” id. § 1252(a)(2)(D),
but “a petitioner may not create the jurisdiction that Congress chose to remove
simply by cloaking an abuse of discretion argument in constitutional garb,” Torres-
Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001). A petitioner’s constitutional
argument must at least be “colorable.” Id.
Colin-Alcantar raises two purportedly constitutional arguments. The first
argument, that the IJ incorrectly weighed evidence about whether he was
rehabilitated after his convictions, does not present a colorable due process claim.
Colin-Alcantar testified at the hearing, as did his mother and wife; the record does
not suggest he was deprived of a “full and fair hearing” or “prevented from
reasonably presenting his case.” Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th
Cir. 2011) (quoting Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006)).
Colin-Alcantar’s second argument is also not a colorable due process claim.
He argues that the IJ erred by relying on a police report that he contends was
inadmissible hearsay. But in immigration proceedings the rules of evidence do not

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apply, Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 370 (9th Cir. 2003) (en banc),
and “the sole test for admission of evidence is whether the evidence is probative
and its admission is fundamentally fair,” Rojas-Garcia v. Ashcroft, 339 F.3d 814,
823 (9th Cir. 2003) (quoting Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995)).
Colin-Alcantar does not argue that the police report was not probative or was
unfairly admitted.
Because Colin-Alcantar has failed to raise a colorable due process claim, we
lack jurisdiction to review his petition.1
PETITION DISMISSED.
1 The government argues we lack jurisdiction because Colin-Alcantar failed
to exhaust his due process claims, but the Supreme Court held in Santos-Zacaria
that this does not deprive us of jurisdiction. Santos-Zacaria v. Garland, 598 U.S.
411, 416 (2023).

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