United States Court of Appeals

For the First Circuit

No. 06-1438

FLAVIO RODRÍGUES-NASCIMENTO,

Petitioner,

v.

ALBERTO R. GONZÁLES,

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,

Torruella and Lynch, Circuit Judges.

Jeffrey B. Rubin and Law Offices of Jeffrey B. Rubin, on brief

for petitioner.

Richard Zanfardino, Trial Attorney, U.S. Department of

Justice, Civil Division, Office of Immigration Litigation, Peter D.

Keisler, Assistant Attorney General, Civil Division, and Terri J.

Scadron, Assistant Director, Office of Immigration Litigation, on

brief for respondent.

May 9, 2007
 Petitioner states that he married his wife by correspondence 1

while she was in Brazil.

 On November 22, 1995, Petitioner's employer filed a Petition for 2

Alien Worker (I-140 petition). The petition was approved on

February 5, 1997. After visiting his family in Brazil, Petitioner

returned to the United States on advance parole on February 4,

1998, in order to seek adjustment of his illegal status based on

the approved I-140 petition.

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TORRUELLA, Circuit Judge. Petitioner Flavio RodríguesNascimento seeks review of the denial of his petition for

adjustment of status, as well as his motion for voluntary

departure. We find that we lack jurisdiction to review the denial

of the petition for adjustment of status under 8 U.S.C. §§ 1252(a)

(2)(B)(i) and 1252(d)(1), and deem Petitioner's request for

voluntary departure waived by failure to develop argumentation.

I. Background

Petitioner was born in Brazil in 1962 and entered the

United States illegally in 1988. He was married in 1992 to a

citizen of Brazil, and his wife subsequently came to the United 1

States on a visitor's visa, which she overstayed. On February 4,

1998, Petitioner was paroled into the United States in order to

seek adjustment of status based on an I-140 his employer filed on

his behalf. He and his wife had a daughter in 2001 who is a 2

United States citizen by birth.

That same year, Petitioner was arrested and pled guilty

to assault and battery with a dangerous weapon for kicking his wife

with a shoed foot. Petitioner was sentenced to a suspended
 Petitioner's Notice to Appear cited his 1998 conviction for 3

assault and battery with a "dangerous weapon."

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sentence of eleven months incarceration. Petitioner was arrested

again in 2002 and pled guilty to assault and battery and

intimidation of a witness. He was sentenced to six days

incarceration and three years probation.

On February 28, 2003, the Department of Homeland Security

("DHS") initiated removal proceedings against Petitioner, asserting

that he was an alien convicted of a crime involving moral

turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Petitioner filed 3

for relief from removal in the form of a request for adjustment of

status under 8 U.S.C. § 1255(a), and a waiver of inadmissibility

under 8 U.S.C. § 1182(h)(1)(B), citing extreme hardship to his

four-year-old United States citizen daughter. In the alternative,

he requested voluntary departure under 8 U.S.C. § 1229c(a).

After a hearing on January 4, 2005, the Immigration Judge

("IJ") refused to grant a waiver of inadmissibility, concluding

that Petitioner had not met his burden of proof to establish

extreme hardship to his daughter, his only qualifying relative

under 8 U.S.C. § 1182(h)(1)(B). Namely, the IJ found that should,

as Petitioner claims, his departure result in his daughter being

forced to also move to Brazil, her hardship would be mitigated by

the fact that Petitioner and his wife have significant family ties

in that country. In addition, the IJ held that his discretion
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under § 1182(h)(1)(A) to grant Petitioner's request for a waiver of

inadmissibility should not be exercised because Petitioner's

history of violent behavior outweighed his positive attributes and

because of the lack of evidence of Petitioner's rehabilitation.

The IJ also denied Petitioner's request for voluntary

departure, due to Petitioner's conviction for an aggravated felony

-- i.e., the assault and battery of his wife with a shoed foot.

See 8 U.S.C. § 1229c(a).

Petitioner appealed to the Board of Immigration Appeals

("BIA"), and on February 17, 2006, the BIA summarily affirmed the

decision of the IJ. This renders the decision of the IJ the final

agency decision for the purpose of appellate review. See Keo v.

Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003).

II. Analysis

Petitioner asks us to reconsider the IJ's analysis of

extreme hardship under 8 U.S.C. § 1182(h). However, this is

precisely the type of review that is precluded by 8 U.S.C. § 1252

(a)(2)(B):

Notwithstanding any other provision of law

(statutory or nonstatutory), . . . except as

provided in subparagraph (D), and regardless

of whether the judgment, decision, or action

is made in removal proceedings, no court shall

have jurisdiction to review-- (i) any judgment

regarding the granting of relief under section

1182(h), 1182(i), 1229b, 1229c, or 1255 of

this title . . . .
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The only exception, subparagraph (D), created by the REAL

ID Act of 2005, Pub. L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat.

231, 310, preserves review only for constitutional claims and

questions of law raised in a petition for review. 8 U.S.C. § 1252

(a)(2)(D); see also Conteh v. Gonzáles, 461 F.3d 45, 62-63 (1st

Cir. 2006) (describing the changes wrought by the REAL ID Act).

Petitioner has not raised such a claim. His sole

allegation is that the IJ failed to adequately consider his

daughter's citizenship in making the factual determination that she

would not suffer hardship, essentially challenging how much weight

should be granted to the evidence he presented. Section

1182(h)(1)(B) explicitly states that "[t]he Attorney General may,

in his discretion, waive the application of subparagraphs

(A)(i)(I), (B), (D), and (E) of subsection (a)(2) . . . if it is

established to the satisfaction of the Attorney General that the

alien's denial of admission would result in extreme hardship to the

United States citizen . . . daughter . . . of such alien." 8

U.S.C. § 1182(h)(1)(B). As we have previously held, even under 8

U.S.C. § 1252(a)(2)(D), "discretionary or factual determinations

continue to fall outside the jurisdiction of the courts of

appeals." Mehilli v. Gonzáles, 433 F.3d 86, 93 (1st Cir. 2005)

(quoting Vasile v. Gonzáles, 417 F.3d 766, 768 (7th Cir. 2005)).

Indeed, in Bencosme de Rodríguez v. Gonzáles, we held that we

lacked jurisdiction over a similar discretionary decision made by
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an IJ. 433 F.3d 163, 164 (1st Cir. 2005) (holding that we lack

jurisdiction to review the IJ's determination "that removal would

[not] result in 'exceptional and extremely unusual hardship' to

[Petitioner's] United States citizen children"). Accordingly, we

lack jurisdiction to review whether the IJ abused his discretion in

denying the § 1182(h)(1)(B) waiver of inadmissibility. We

similarly lack jurisdiction to review the IJ's balancing of factors

in consideration of the petition for a waiver of inadmissibility

under § 1182(h)(1)(A).

Petitioner's claim that the IJ improperly denied

voluntary departure is also denied. While an error may exist here,

Petitioner's failure to adequately brief this claim before the BIA

prevents us from considering its merits. Olujoke v. Gonzáles, 411

F.3d 16, 22-23 (1st Cir. 2005) (concluding that Petitioner's

failure to "make any developed argumentation" in support of a claim

before the BIA bars any attempt to resurrect the issue before the

court); see also Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir.

2004). Consequently, we deem that portion of his petition waived.

III. Conclusion

For the aforementioned reasons, we conclude that we do

not have jurisdiction to review Petitioner's waiver of

inadmissibility claim and find Petitioner's claim for voluntary

departure waived.

Affirmed.