Daniel Excellent, a/k/a Danny Excellent, a/k/a David Excellent, a/k/a Thomas Excellent v. ERIC H. HOLDER, JR., Attorney General

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1992
DANIEL EXCELLENT, a/k/a Danny Excellent, a/k/a David
Excellent, a/k/a Thomas Excellent,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: May 7, 2013 Decided: May 15, 2013
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Paul O’Dwyer, New York, New York, for Petitioner. Stuart F.
Delery, Principal Deputy Assistant Attorney General, Stephen J.
Flynn, Assistant Director, Robert Michael Stalzer, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel Excellent, a native and citizen of Haiti,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s denial of Excellent’s request for protection under the
Convention Against Torture and denying his request to renew his
application for a waiver of inadmissibility under former
§ 212(c) of the Immigration and Nationality Act. See 8 U.S.C.
§ 1182(c) (1994) (repealed 1996). For the reasons discussed
below, we dismiss the petition for review in part and deny the
petition in part.
Pursuant to 8 U.S.C. § 1252(a)(2)(C) (2006), we lack
jurisdiction, except as provided in 8 U.S.C. § 1252(a)(2)(D)
(2006), to review the final order of removal of an alien who is
removable for having been convicted of certain enumerated
crimes, including controlled substance offenses. Under
§ 1252(a)(2)(C), we retain jurisdiction “to review factual
determinations that trigger the jurisdiction-stripping
provision, such as whether [Excellent] [i]s an alien and whether
[]he has been convicted of [a controlled substance offense].”
Ramtulla v. Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). Once
we confirm these two factual determinations, under 8 U.S.C.
§ 1252(a)(2)(C), (D), we can only consider “constitutional

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claims or questions of law.” § 1252(a)(2)(D); see Turkson v.
Holder, 667 F.3d 523, 527 (4th Cir. 2012).
Because Excellent has conceded that he is a native and
citizen of Haiti and that he has been convicted of a controlled
substance offense, we lack jurisdiction over the petition for
review absent a colorable constitutional claim or question of
law. 8 U.S.C. § 1252(a)(2)(C). We therefore dismiss the
petition for review in part.
To the extent that Excellent raises claims that fall
under the jurisdictional exception set forth in § 1252(a)(2)(D),
we have thoroughly reviewed these claims and the administrative
record and we conclude that those claims lack merit. Excellent
cannot state a colorable due process claim “because he has no
property or liberty interest in the ‘right’ to discretionary
section 212(c) relief.” Smith v. Ashcroft, 295 F.3d 425, 430
(4th Cir. 2002); see Dekoladenu v. Gonzales, 459 F.3d 500, 508
(4th Cir. 2006) (“No property or liberty interest can exist when
the relief sought is discretionary.”), abrogated on other
grounds by Dada v. Mukasey, 554 U.S. 1 (2008). Additionally, we
discern no error in the Board’s findings that its April 28, 2006
decision affirming the immigration judge’s denial of § 212(c)
relief was final, and that Excellent waived further review of
the issue. See Jungming Li v. Holder, 656 F.3d 898, 904 n.1
(9th Cir. 2011) (explaining that nothing in Matter of M-D-, 24

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I. & N. Dec. 138, 141 (B.I.A. 2007), “suggests that a petitioner
could use the remand as a venue to challenge orders denying
relief that the [Board] has affirmed,” and clarifying that the
case merely recognizes the immigration judge’s authority to
consider new evidence if it would support a motion to reopen the
proceedings).
Accordingly, we dismiss the petition for review in
part and deny the petition in part. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this Court and argument would
not aid the decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART

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