NOT FOR PUBLICATION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,” TorresAguilar 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).