## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-1595

___________ Jose Domingo Garcia-Aguillon, *
* Petitioner, * * Petition for Review v. * of an Order of the * Board of Immigration Appeals. Michael B. Mukasey, Attorney * General of the United States, *
* Respondent. *

___________ Submitted: January 17, 2008 Filed: May 5, 2008

___________ Before WOLLMAN, BRIGHT, and SMITH, Circuit Judges.

___________ WOLLMAN, Circuit Judge. Jose Domingo Garcia-Aguillon, a citizenand native of Mexico, seeks review of an order of the Board of Immigration Appeals (BIA) that summarily affirmed and adopted the decision of an immigration judge (IJ) denying Garc ia-Aguillon’s request for voluntary departure and ordering his rem oval to Mexico. We dismiss the petition for review for lack of jurisdiction.-2- I.

Garcia-Aguillon entered the United States without inspection on at least four occasions within a one-month time period. On the first three occasions, dated September 9, 17, and 19, 2002, immigration officials intercepted Garcia-Aguillon and allowed him to depart voluntarily without removal proceedings. Garcia-Aguillon’s October 1, 2002, entry evaded an enc ounter with authorities, however, and he remained in the United States illegally.

The government initiated removal proceed ings against Garcia-Aguillon on July 6, 2005, after he was arrestedfor driving without a licenseand admitted that he lacked immigration documentation. Garcia-Aguillon’s master calendar hearing was continued to allow his counsel time for prep aration. At the resumed hearing before the IJ on October 18, 2005, Garcia-Aguillon admitted all of the allegations against him, conceded inadmissibility, and requested a voluntary departure. The IJ reset the merits hearing date to November 18, 2005, to permit Garcia-Aguillon and his counsel to review his immigration record (Form I-213) in preparation for the hearing. At the merits hearing, the government did not c ontest that Garcia-Aguillon was statutorily eligible for voluntary departure, but the IJ denied Garcia-Aguillon’s request as a matter of discretion and orde red his removal to Mexico, finding that his repeated illegal entries evinced “absolutely no respect for the immigration laws of the United States.”

II.

Although we generally have ju risdiction to review fina l orders of removal, 8 U.S.C. § 1252, we lack jurisdiction to review the discretionary denial of voluntary departure under 8 U.S.C. § 1229c. 8 U.S .C. § 1252(a)(2)(B)(i). Thus, we must dismiss Garcia-Aguillon’s petition for lack of jurisdiction unless a colorable constitutional claim or question of law is raised therein, keeping in mind that a-3- petitioner may not create jurisdiction by “‘cl oaking an abuse of discretion argument in constitutional [or legal] ga rb.’” Sabhari v. Mukasey , No. 06-3483, 2008 WL 961167, at *2 (8th Cir. Apr. 10, 2008) (percuriam) (quoting Torres-Aguilar v. INS , 246 F.3d 1267, 1271 (9th Cir. 2001)); 8 U.S.C. § (a)(2)(D); see also Barco-Sandoval v. Gonzales , 516 F.3d 35, 40-41 n.6 (2d Cir. 2008). To be colorable, a claim must have “‘some possible validity.’” Sabhari , 2008 WL 961167, at *2 (quoting TorresAguilar , 246 F.3d at 1271); see also Arbaugh v. Y&H Corp. , 546 U.S. 500, 513 n.10 (2006) (“A claim invoking federal-question juri sdiction . . . may be dismissed for want of subject-matter jurisdiction if it is not colorable, i.e. , if it is immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and frivolous.” (internal quotations omitted)); Finch v. Hughes Aircraft Co. , 926 F.2d 1574, 1578-80 (Fed. Cir. 1991) (listing various formulations of frivolous appellate claims).

In his petition for review, Garcia-Aguillon argues that th e IJ incorrectly applied the statutory standards in denying his reque st for voluntary departure and that his due process rights were violated because he lacked notice at the time of his previous returns that they could be used to deny him voluntary departure in the future. We conclude that we lack jurisdiction to review Garcia-Aguillon’s petition because his arguments therein fail to present a colora ble constitutional claim or question of law.

Garcia-Aguillon’s first argum ent fails to state a colo rable legal claim because it amounts to nothing more than a challenge to the IJ’s discretionary and fact-finding exercises cloaked as a question of law. Specifically, Garcia-Aguillon argues that the IJ’s consideration of the repeated illegal entries listed on his Form I-213 amounts to the application of the statutory standard for aliens who apply for voluntary departure at the end of removal proceedings unde r 8 U.S.C. § 1229c(b), which requires a showing of five years of good moral character , rather than the st andard for those who apply before the end of proceedings under 8 U.S.C. § 1229c(a ), which does not. Garcia-Aguillon’s statutory eligibility for voluntary departure was conceded, however,-4- and thus was not at issue during the merits hearing. The single issue to be decided was whether Garcia-Aguillon merited voluntary departure as a matter of discretion. The consideration of an alien’s “additional vi olations of the immigration laws . . . and other evidence of bad character or the undesi rability of the applicant as a permanent resident” is clearly part of the IJ’s disc retionary exercise with respect to voluntary departure and does not pertain to the diffe rent standards found in sections 1229c(a) and (b). Arguelles-Campos, 22 I. & N. D ec. 811, 817 (BIA 1999) (citing Gamboa, 14 I. & N. 244 (BIA 1972)).

Garcia-Aguillon’s due process argument fails to state a colorable constitutional claim because he clearly does not possess a constitutionally protected interest in discretionary relief under ex isting law and does not provi de a reasoned argument for changing or distinguishing the la w. Garcia-Mateo v. Keisler , 503 F.3d 698, 700 (8th Cir. 2007) (citing Nativi-Gomez v. Ashcroft , 344 F.3d 805, 808 (8th Cir. 2003) (no constitutionally protected interest in disc retionary relief from removal)); De Araujo v. Gonzales , 457 F.3d 146, 153-55 (1st Cir. 2006) (no colorable due process claim when alien fails to state a protect ed liberty or property interest).

The petition for review is dismissed for lack of jurisdiction.

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