Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60029

Summary Calendar

MODESTO RODOLFO HARVEY GUTIERREZ

Petitioner

v.

ERIC H. HOLDER, JR., U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A36 047 452

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Modesto Rodolfo Harvey Gutierrez (Harvey Gutierrez), a native and

citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA)

discretionary denial of his application for cancellation of removal and order of

removal.

We lack jurisdiction to review the denial of cancellation of removal or the

final order of removal. See 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(C). To the extent

United States Court of Appeals

Fifth Circuit

F I L E D

March 23, 2009

Charles R. Fulbruge III

Clerk
No. 08-60029

2

Harvey Gutierrez’s petition seeks review of these determinations, the petition

is dismissed for lack of jurisdiction.

However, we have jurisdiction to consider constitutional claims and

questions of law. § 1252(a)(2)(D). For the reasons stated below, Harvey

Gutierrez’s petition raising such claims and questions is denied.

Harvey Gutierrez’s claim that he was denied a full and fair hearing with

the facts fully developed is belied by the record and is waived by his failure to

raise it below. See Zhang v. Gonzales, 432 F.3d 339, 346 (5th Cir. 2005).

Harvey Gutierrez asserts that “the differential treatment of African

Caribbean[]s under current immigration policies violates the Equal Protection

Provision of the Due Process Clause” and that the BIA acted contrary to law and

in violation of due process by failing to consider his pending citizenship

application. These conclusional arguments are not adequately briefed and thus

are waived. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008).

We do not construe Harvey Gutierrez’s assertion, made without supporting

argument or citation to the record, that the BIA should have considered his

pending citizenship application as a nationality claim that would require this

court’s action under 8 U.S.C. § 1252(b)(5).

Harvey Gutierrez has waived any challenge to the BIA’s rejection of his

late-filed brief by failing to brief the issue adequately and by stating that the

BIA “acted reasonably and within its discretion in denying [his] motion to

rebuttal government counsel claim.” See Chambers, 520 F.3d at 448 n.1. To the

extent he argues that the BIA failed to address a change-in-law argument,

Harvey Gutierrez fails to point to any such argument that he raised before the

BIA.

Although he contends that “[t]he Immigration Courts acted contrary to law

by rendering a decision which failed to consider the hardship factors

cumu[la]tively,” Harvey Gutierrez does not identify any evidence of hardship

that the BIA failed to consider, cumulatively or otherwise. Thus, he has not
No. 08-60029

3

shown legal error. To the extent he argues that the BIA erred in balancing the

adverse and favorable factors, that is a challenge to the discretionary decision,

and we lack jurisdiction to review such a challenge. See § 1252(a)(2)(B).

Harvey Gutierrez also contends that the BIA violated procedural due

process and abused its discretion by failing to provide a reasoned explanation of

its decision. This argument is unsupported by the record. To the extent he

argues that he was not informed of, or given a hearing regarding, relief for which

he was eligible, this argument is also belied by the record.

Harvey Gutierrez’s motion to incorporate by reference the arguments he

made in his brief to the BIA is denied. See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993).

PETITION DISMISSED IN PART AND DENIED IN PART; MOTION

DENIED.