NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-1808

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FRANCIS TOGBA,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent

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On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A077-605-913)

Immigration Judge: Honorable Kuyomars Q. Golparvar

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Submitted Under Third Circuit L.A.R. 34.1(a)

January 22, 2018

Before: HARDIMAN, VANASKIE, and SHWARTZ, Circuit Judges.

(Filed: February 12, 2018)

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OPINION*

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 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
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HARDIMAN, Circuit Judge.

A native of Liberia, Francis Togba was admitted to the United States as a refugee 

when he was five years old. Ten years later, Togba participated in a violent home 

invasion during which he held five people at gunpoint, ordered two men to disrobe and 

have sex with each other, and pistol-whipped one in the head when they refused.

Commonwealth v. Togba, 2013 WL 11271518, at *1 (Pa. Super. Ct. April 8, 2013). A 

jury convicted Togba of robbery, burglary, possession of an instrument of crime, carrying 

a firearm without a license, carrying a firearm in a public street, and conspiracy. Id. at *4.

Based on those convictions, Immigration and Customs Enforcement commenced removal

proceedings against Togba. 

Togba conceded his removability, but sought to become a permanent resident 

pursuant to a waiver of inadmissibility under 8 U.S.C. § 1159(c). An Immigration Judge

(IJ) denied Togba’s waiver request and ordered him removed. The Board of Immigration 

Appeals (BIA) affirmed. Togba filed this petition for review of the BIA’s decision. 

We have no power to review any “decision or action of the Attorney General . . . 

the authority for which is specified . . . to be in the discretion of the Attorney General.”

8 U.S.C. § 1252(a)(2)(B)(ii). The decision to deny Togba a waiver of inadmissibility was

just such an exercise of discretion. As the Attorney General points out, his “discretionary 

authority . . . to grant or deny this waiver is clear on the face of 8 U.S.C. § 1159(c),”

which provides that “the Attorney General may waive” certain grounds of inadmissibility.
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Att’y Gen. Br. 20 (emphasis added); see also Latter-Singh v. Holder, 668 F.3d 1156, 

1164 (9th Cir. 2012).

We do, of course, retain jurisdiction to review “constitutional claims or questions 

of law” arising out of the Attorney General’s exercise of discretion, 8 U.S.C. 

§ 1252(a)(2)(D), but Togba does not raise any such questions. Togba’s first argument is 

unambiguously a challenge to the weight the agency accorded various mitigating factors, 

particularly Togba’s youth at the time of his crimes. Where the record shows that the 

agency did incorporate those factors into its analysis, Togba’s objection to the agency’s

discretionary balancing of the same fails to state a legal or constitutional claim. See 

Jarbough v. Att’y Gen., 483 F.3d 184, 190 (3d Cir. 2007) (“Recasting challenges to 

factual or discretionary determinations as . . . [legal] claims is clearly insufficient to give 

this Court jurisdiction under § 125[2](a)(2)(D)).”

Togba’s second argument—that the agency failed to account for recent Supreme

Court decisions involving the Eighth Amendment’s limits on punishing juvenile 

offenders—fares no better. A constitutional claim is not “colorable” and does not confer

jurisdiction if it has no “possible validity.” Pareja v. Att’y Gen., 615 F.3d 180, 190 (3d 

Cir. 2010) (internal quotation marks omitted). We have already held that the Eighth 

Amendment’s constraints on criminal punishment do not apply to civil immigration 

proceedings. Sunday v. Att’y Gen., 832 F.3d 211, 217–18 (3d Cir. 2016).

* * *

For the reasons stated, we will dismiss Togba’s petition for review for lack of 

jurisdiction.