* The Honorable Ric hard W. Goldberg,Judge, Uni ted Sta tes Court of Int ernati onal Trade, sittin g by design ati on. 1 06-0360-ag Barco-Sandoval v. Gonzales

UNITED STATE S COURT OF APPEALS FOR THE S ECOND CIRCUI T August T erm, 2006 (Submitt ed: May 23, 20 07 Decided: Augu st 1, 2007 Errata filed: August

23, 2007 ) Docket No. 0 6-0360-ag B YRON B ARCO -S ANDOVAL ,

Petitioner ,

v. A LBER TO G ONZALES , Attorney G eneral of the United St ates, Respondent. Before: W

ALKER and C ABRANES , Circuit Judges, and G OLDBERG , * Judge

. Petitioner seeks review of an order of the Board of Immigration Appeals, adopting and affirmin g a decision o f an Immig

ration Ju dge, denying h

is applicat ion for can cellation of

removal under section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1). The agency determined that petitioner should not be entitled to cancellation of removal as a ma tter of discretion, and that

petitioner had failed t

o demonst

rate the exce

ptional and

extremely u

nusual hardship necessary to obtain ca

ncellation o f removal u

nder the s tatute. On

appeal, petit

ioner contends t

hat the agency

used the in correct s tandard to determine

whether he had demonst

rated extreme and unusual hardship, and that he was entitled to relief under both the correct standard and1 8 U.S.C. § 122 9b(b)(1) provides as follows: The Attorne y General may cancel removal of

, and adj ust t o the s tat us of an ali en lawful ly admit ted for permanent res idence, an ali en who is inadmiss ibl e or deport able f rom the Unit ed Stat es if the al ien– (A) has been p hysically present in the United S tates for a continuous pe riod of not less than 10 yea rs immediatel

y precedi ng the dat e of such a ppli cati on; (B) has b een a p ers on of good mora l ch arac ter

duri ng su ch per

iod; (C) has not been convict ed of an of fense under

[othe r sect

ions of the INA]; and (D ) estab lishes that re m ova l wo uld resu lt in ex cep tiona l and extre m ely u nus ual h ard ship to the a lien’s spouse, parent , or chil d, who is a cit izen o f the Uni ted Sta tes or an ali en lawful

ly admit ted for permanent res idence. 2 the allegedly incorrect standard actually used by the agenc y. The Government seeks dismissal of the petition, asserti ng that thi s Court lac ks juris diction to review the agency’s dis cretionar y and factual determinat

ions leadin

g to the deni

al of petit ioner’s ap plication f

or cancellat

ion of rem oval. We dismiss

the petition, conclud

ing that we lac k jurisdiction to review the agency ’s discretionary and factual determinations underlying the denial of petitioner’s application for cancellation of removal, and that petitioner fails to raise any colorable constitutional clai ms or question s of law. Byron Ba rco-Sando val, Bridg eport, CT , pro se . Richard M. Molot, Assistant Un ited States Attorney (

Kevin J. O’ Connor, Un

ited States Attorney, Sandra Glov

er, Assis tant Unite d States Att orney, on the brief

), United S tates Attorney’s Office for the District of Connecticut

, New Haven, CT , for Respondent

. J OSÉ A. C ABRANES , Circuit Judge : Petitioner Byron B arco-Sandoval , a nativ e and citizen of G uatem ala, seeks review of a decision by the Board of Immigration Appeals (“BIA”), adopting and affirming a decision by Immigrat ion Judge (

“IJ”) Michael W. Strau s, denying h is applicat ion for can cellation of

removal under section 240A(b)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b)(1). 13

See In re Barco-Sa ndoval , No. A 71 500 3 54 (B.I. A. Jan. 4, 200 6) (“BIA Dec.”), aff’g In re

Barco-Sa ndoval , No. A 71 500 35 4 (Immig. Ct. Hartfo rd Oct. 1, 2 004) (“IJ Dec.”). Th e IJ denied Barco-Sandoval’s application

for two reasons. F

irst, th e IJ stat

ed that Bar

co-Sandoval

did not des erve a favor

able exercise of

discretion because h e had been arr ested twice

for driv ing while int

oxicated (“D

WI”). Second, the I

J found t hat Barco- Sandoval had f

ailed to demo nstrate t

hat his removal would “ result in exceptional and extrem ely unusual hardship ” to his f

amily, 8 U.S.C. § 1229b(b) (1)(D). The BIA agreed with the IJ’s reasoning and affirmed his decision. On appeal, Barco-Sandoval contends that the IJ’s decision, and the BIA’s decision adopting it, used t he incorre ct standar

d to deter mine whether

he had demons trated ext

reme and unu sual hardship , and that he

was entitled to relief

under bot

h the correct standar

d and the alleg

edly incorrect standard actually used by the agency. The Government seeks dismissal of the petition, asserti ng that thi s Court lac ks juris diction to review the agency’s dis cretionar y and factual determinat

ions leadin

g to the deni

al of Barco -Sandoval’s

application

for cancell

ation of removal. We dismiss

the petition, conclud

ing (1) th at we lack juri sdiction to review t

he agency’s discretionary and factual determinations underlying the denial of Barco-Sandoval’s application for cancellation of removal, and (2) that Barco-Sandoval fails to raise any colorable constitutional cla ims or questions of law. In reaching this conclusion, we reaffirm our holding in De La Vega v. Gonzales , 436 F.3d 141 (2d Cir. 2006), that we lack jurisdiction to review “discretionary determinations concerning

whether to

grant cancell

ation of removal,” id. at 144, and we settle the question of whether De La Vega remains good law in light of our revised opinion in Xiao Ji Chen v. U.S. Dep’t of Justice , 434 F.3d 144 (2d Cir. 2006) (“ Xiao Ji Chen I ”), on reh’g , 471 F.3d 315 (2d Cir. 2006) (“ Xiao Ji Chen II ”). Cf. Barnaby-King v. DHS , 485 F.3d 684, 686 (2d Cir. 2007) (raising question in dicta of whether cases relying on Xiao Ji Chen I ’s interpretation of “constitutional claims and questions of law,” 8 U.S.C. § 1252(a)(2)(D), remain cont rolling).4 B ACK GRO UND Barco-Sandoval entered the Unite d States il legally in Mar

ch 1992. In M

ay 2003, he was issued a N otice to App ear in remo val proceedi

ngs. He subsequently admitted the factual allegations contained in

the Notice t

o Appear and c onceded that he was remo

vable. In July 2004, BarcoSandoval appl

ied for canc ellation of

removal und er INA § 240 A(b)(1), 8 U.S.C. § 1229 b(b)(1) , which authorizes the Attorney General, in his discretion, to cancel the removal of an alien who meets certain st atutory r equirement s. See ante note 1 (reproducing 8 U.S.C. § 1229b(b)(1)). At his Oct

ober 2004 h earing on th e application for cancell

ation of removal, Bar

co-Sandoval, represente d by counse l, testifie d that he h ad been e mployed w ith the sam e compan y for the pa st eleven years , and that he

made $17.50 an

hour work

ing for th e company. B arco-Sando val stated that he had lived with the same woman, Amrailas Bonilla—also an undocumented a lien—for the past eleven years, and had fathered three U.S.-citizen children with her. Barco-Sandoval test ified that his ch

ildren were doing well in

school, wit

h the exception of hisyoungest, Katherine,

who “has a problem wi

th speech. ” He stated that Katherine’s teacher and doctor had suggested that BarcoSandova l and Bonil la take h er to a the rapist , but they had not yet done so. When asked abo ut the cons equences of his remov

al, Barco-Sandoval stated that if he were forced to return t o Guatemala,

he would have n o family mem bers ther e, other than his grandparen

ts, whom h e helps to s upport. He also tes tified th at if he were returned to Guatemal

a his children wo uld suff

er, because

of the bond he has with

them and als o because of the financial support he p rovides. Barco-Sandoval admitted that he had been arrested twice for DWI. He assert ed that aft er his firs t arrest

, in 1995, he t

ook ten alcoh ol education classes and the charges

were dismi ssed. He was arrested again for DWI in 2002. As a result of this arrest, Barco-Sandoval was put on2 The IJ cons idered t he asse rted har dship t o Barco-Sandoval ’s U. S.-citiz en chil dren, but did not consi der whether Barc o-Sandoval ’s r emoval would caus e hardshi p to Bonill a, beca use the stat ute onl y permits consi derati on of “excepti onal and ex tremely unus ual har dship t o the al ien’ s spous e, par ent, or child, who is a cit izen o f the Uni ted Sta tes or an al ien l awfull

y admitt ed for per manent resi dence,” 8 U.S.C. § 1229b(b )(1) (D), and Bonilla i s nei ther Bar coSan do val’s sp ous e no r a U .S. citize n or lawf ul pe rm ane nt re side nt. 5 probation, his license was suspended for a year, and he was required to take six months of alcohol educati on classes. He assert ed that he had

completed al

l of the re quired clas ses, but told the I J that he had le ft at home p roof of his suc cessful co mpletion of these req uirements. Following the hearing, the IJ rendered an oral decision denying Barco-Sandoval’s application for cancell

ation of removal. The IJ determined that Barco-Sandoval should be denied relief “in the exercise of

discretion” based on

“the dangerousnessof drivin g under the

influence, a

nd the potential harm to the public” he posed. IJ Dec. 6, Joint Appendix (“J.A.”) 36. The IJ then relied on In re Monreal- Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), in determining that Barco-Sandoval had not establis hed that his

three U.S.- citizen child

ren would s uffer “exc eptional and extremely u

nusual hardship ” if he were r

emoved to G

uatemala. 2 The IJ noted that under Monreal-Aguinaga , cancellation of removal

relief “s hould be avail

able to indi

viduals on ly in compell

ing cases.” Id. (citing MonrealAguinaga , 23 I. & N. D ec. at 59). The IJ f ound that, even though

Barco-Sandoval’s chi

ldren would lose the financial support and companionship that he provided were he to be removed, these factors were not, by

themselve s, suff

icient to es tablish hi s right t o relief bec ause “[t]h ese are hard ship factors that can typ

ically occur w

hen a close f

amily member

must depar

t the Unite d States.” Id. at. 8, J.A. 38. The IJ als o found that Barco- Sandoval’sfailure to addresshis daught

er Katheri ne’s “seriousspeech iss ue” was an adver se factor weighing again st a findi

ng that hischildren wo uld suffer exceptional hardship were he to be r emoved. Id. at 7, J.A. 37. The IJ did, however, grant Barco-Sandoval voluntary depart ure. On January

4, 2006, the

BIA adopt

ed and affir

med the IJ ’s decisio n. The BIA ag reed that Barco-Sandoval had failed to establish that his three U.S. citizen children would face exc eptional and3 Barco-Sandoval asser ts t hat he i s not att acking “the di scret ionary decisi on of t he IJ or the BIA, but rat

her the way in whic h that

decisi on was reache d,” Pet ’r Br. 6, but it is c lear from Barco-Sandova l’ s remaini ng arguments that

he does take issue with the “ disc retio nar y de cision of the IJ [an d] th e B IA” ; his asse rtion that h e ha d ad equ ately demonstrat ed “excepti onal and ex tremely unus ual har dship” under any st andard can onl y be read as a chall enge to t he resul t reac hed by the a gency. 6 extremely u

nusual har

dship upo n his remo

val, and that

his “recid ivist mis conduct fo r driving under the influence” suppo rted the d enial of hisapplication in the exerc

ise of dis cretion. B IA Dec. 1, J .A. 2. On January 26, 2006, Barco-Sandoval, appearing in this Court pro se , timely filed a motion for a stay of removal

and a petitio n for rev

iew of the B IA’s Janu

ary 2006 or

der. In hi s brief i

n support of the petition, Barco-Sandoval argues that the IJ’s reliance on Monreal- Aguinaga was “misplaced,” Pet’r Br. 4, because that decision allegedly was “superseded” by the BIA’s subsequent decision in In re Recin

as , 23 I. & N. Dec. 467 (BIA 2002). Barco-Sandoval asserts that Recinas established a less stringent standard than Monreal-Aguinaga for satisfying the “exceptional and extremely u

nusual har

dship” re quirement

of the cancel

lation of r emoval stat

ute. Barco-Sandoval’s brief als o contendsthat, under either the Recinas standard or the Monreal-

Aguinaga standard, he should be entitled to

cancellation

of removal

because of t

he severe eco nomic hard ship that his U.S. citizen children—particularly his speech-impaired daughter—would suffer were he forced to return to Guatemal

a. 3 In March 2007, the Government filed a motion to dismiss the petition for lack of jurisdiction. In its motion, the Government argues that this Court lacks jurisdiction to review the January 200 6 BIA rul

ing because i

t reflects a discretionary decision that isunreviewable under IN A § 242(a)(2) (B)(i) , 8 U.S.C. § 125 2(a)(2)( B)(i), wh ich provid es that “[n

]otwiths tanding any o ther provisions of law . . ., no court shall have jurisdiction to review . . . any judgment regarding the granting o f relief u

nder [8 U.S .C.] sectio n . . . 1229b, ” the cancellat ion of rem oval statu

te. The Government acknowledges that under Section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub.7

L. No. 109-13, Div. B, 119 Stat. 231, 310-11 (codified at 8 U.S.C. § 1252(a)(2)(D)), the limitations on judicial rev

iew set for

th in 8 U.S.C. § 1252(a)(2

)(B)(i ) are not t o be “const

rued as pr ecluding rev

iew of const itutional claims or q

uestionsof law rais ed upon a pet ition for review.” 8 U. S.C. § 1252(a)(2)(D). Relying on De La Vega and Xiao Ji Chen II, the Government contends that BarcoSandoval raises no non-frivolous constitutional claims or questions of law in his petition, and therefore we are required to dismiss the petition for want of jurisdiction. D IS CUS SI ON A. De La V

e g a Remains Binding Law of the Circuit If De La Vega remains binding, we lack jurisdiction to review Barco-Sandoval’s challenge to the BIA’s decision d enying him t

he discret ionary relief of cancell

ation of removal. We conc luded in De La Vega

that “the BIA’s discretionary determinations concerning whether to grant cancellation of removal constitute ‘judgment[s] regarding the granting of relief under . . . section 1229b’ within the meaning of 8 U.S.C. § 1252(a)(2)(B)(i) and therefore the review of such determinations falls outside our juris diction.” 4 36 F.3d at 14 4 (alterat ion and omis sion in or

iginal). We hel

d further that “(1) ‘exceptional and extremely unusual hardship’ determinations by the BIA are discretionary judgments and (2) we th erefore la ck jurisd iction to r eview such ju

dgments. ” Id. at 145-46. We must re- examine De La Vega , however, because in concluding that we lack jurisdiction to review the agency’s dis cretionar y denial of can cellation of

removal, we “ relied part

ly on reaso ning in [ Xiao Ji Chen

I ],” which was “significantly revised” after De La Vega was decided. Barnaby-K ing , 485 F.3d at 686. Xiao Ji Chen I held that “challenges to the exercis e of routi

ne discret ion by the At

torney General (or

the BIA ashis desig

nee) do not

raise ‘con stitutional claimsor quest ions of la w,’ and may not there fore be re

viewed by thi s Court, n otwithst anding Section 106 of t

he REAL ID Act .” De La4We provide a LEXIS cit ati on here becaus e Xiao Ji Chen I had not been publi shed in a federal report er when De La Vega was dec ided. The p ortion of Xiao Ji Chen I cit ed by De La Vega stated , inter alia , th at “[ b] eca use th e REAL ID Ac t only pro vide s us w ith jur isdic tion to rev iew con stitutio nal c laim s or m atter s of sta tuto ry co nstru ction , we r em ain deprived of juris diction t o review discreti onary and factual determinati ons.” Xiao Ji C hen I , 434 F. 3d at 154. 8 Vega , 436 F.3d at

146 (citing Xiao Ji Chen

I , 434 F.3d at 154, 2006 U.S. App. LEXIS 261 at *19-*20). 4 Applying this principle, we concluded in De La Vega that “Section 106 of t he REAL ID Act

does not override statutory provisions denying the courts jurisdiction to review discretionary decisions of the Attorney General,” including the “BIA’s discretionary judgment that [a] petitioner failed to show ‘exceptional

or extrem ely unusual

hardship ’ justif

ying cancellat

ion of rem oval.” 436 F. 3d at 146. In Xiao Ji Chen II

, we “revise[d] substantially our analysis in Part I of [ Xiao Ji Chen

I ] as to what const

itutes ‘q uestionsof law’ under

section 10 6(a)(1)(

A)(iii) of the REAL ID A ct.” 471 F.3 d at 319. Inst ead of inter

preting “q uestionsof law” to me an only “matt ers of s tatutory

construction,” Xiao Ji Chen I

, 434 F.3d at 154, on rehearing we interpreted “questions of law” more broadly to “encompass

the same ty

pes of is sues that

courts t raditional ly [reviewed

] in habeas r

eview over Executive det

entions, ” Xiao Ji Chen II

, 471 F.3d at

326-27. Mo reover, in

a footnot e Xiao Ji Chen II cast doubt on some decisions that relied on Xiao Ji Chen I , stating t hat “[d]ecis

ions of o ur Court t

hat have relied on the authority of Part I of [ Xiao Ji Chen

I ] should not be considered cont rolling to the extent that they interpreted the phrase ‘questions of law’ more narrowly than does this revised opinion .” Id. at 319 n.** (emphas

is added). Barnaby-K

ing stated in dicta that, in view of Xiao Ji Chen II ’s expanded interpre tation of

“question s of law” and

this foo tnote, it r

emains an “o pen question” whether cases relying, in some part, on the “questions of law” interpretation set forth in Xiao Ji Chen I— including De La Vega—

remain bind

ing. See Barnaby

-King , 485 F.3d at

686-87. We now answer the question raised by our rehearing of Xiao Ji Chen I and conclude that the holding of De La Vega

was not affected by our revised decision in Xiao Ji Chen II . In Xiao Ji Chen II

, we reaffir med that “alt

hough the REAL

ID Act res tores ou

r jurisd iction to r eview ‘const

itutional9

claims or q

uestionsof law,’ 8 U.S .C. § 1252(a)( 2)(D), we r

emain depri

ved of jur isdiction to review decisionsunder the I

NA when the pe tition fo r review es sentially d isputesthe correc tness of

an IJ’s fact-finding or the wisdom of his exercise of discretion and raises neither a constitutional claim nor a question of law.” 471 F .3d at 329. Ev en though a “c onstitu

tional claim ” or “ques tion of law” may “arise for example in fact-finding which is flawed by an error of law” or “where a discretionary decision is argued to be an abuse of discretion because it was made without rational justification or based on a leg

ally errone ous standard,” id ., a petitio ner cannot “us[e] the rhetoric of a ‘const

itutional claim’ o r ‘question of law’ to disguise w hat is essen tially a quarrel a bout fact- finding or the exerc ise of discretion,” id. at 330. Becau se De La Vega ’s holdin g was based o n the conclu sion that “‘exceptional and extremely unusual hardship’ determinations by the BIA are discretionary judgments ,” 436 F.3d at

145, and becau se Xiao Ji Chen II reaffirmed that we lack jurisdiction to review “a quarrel about . . . the exercise of discretion,” 471 F.3d at 330, we deci de that De La Vega continuesto bind us

. B. There ar

e No Color able “Que stions of Law” to Revi ew As indicate d above, Bar

co-Sandoval ’s brief

asserts that the I J and BIA u sed the inc orrect legal standard—one articulated in the BIA’s opinion in Monreal- Aguinaga rather than in its op inion in Recinas —to deter

mine whether

he was entit

led to cancell

ation of removal, but

that under

either standard he should have obtained relief. These arguments present no non-frivolous “question of law” for us to review. While the argument that a discretionary decision was “based on a legally erroneous standard” may in some limited ins tances rais e a “questio n of law,” Xiao Ji Chen II , 471 F.3d at

329, Barco -Sandoval m akes no colorable argument t

hat the IJ or BIA us ed the wron g legal standard to determine that he was not entitled to cancellation of removal. In Monreal-Aguinaga , decide d in 2001, the BIA set fo rth a list of factor s relevant

to its det erminatio n of whether

an applicant f

or cancellat

ion of rem oval had10

demonstr ated “exceptional and extr emely unusu

al hardshi p,” see 23 I. & N. Dec. at 63-64, and applied tho se factor s to deny can cellation of removal to

the applicant

in that cas e, see id. at 64-65. In Recinas , decided the

next year, t

he BIA gran

ted an applica

tion for cancellation

of removal

after determining that the applicant’s unique circumstances placed her within “the outer limit of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard will be met.” 23 I. & N. Dec. at 470. While Barco-Sandoval argues that Recinas set fort h a new legal standard applicable to

cancellation

of removal, Recinas explicitly states that its analysis relies on the standards set forth in Monreal-Aguinaga and a subs equent case, In re Andazo la-Rivas , 23 I. & N. D ec. 319 (BIA 2002): While any hard ship case u ltimately s ucceeds or

fails on it s own meri

ts and on t

he particul

ar facts presented, Matter o

f Andazola and Matter o

f Monreal are the starting points for any analysis o f exceptional and extrem ely unusual hardship . Cancellation

of removal

cases coming before the Immigration Judges and the Board must therefore be examined under the standards se t forth in tho se cases. Recinas , 23 I. & N. D ec. at 469;see also id. at 472-73 (“We emphasize . . . that this decision cannot be read in isolation from Monreal- Aguinaga and Andazola . Those cas es remain o ur semina l interpre tations o f the meanin g of ‘except

ional and ext

remely unus ual hardsh

ip’ . . . .”). Recinas is so obviously an application of Monreal-Aguinaga , leaving the l atter’s s tandard intact, that Barco-Sandoval’s argument that the agency incorrectly relied on Monreal-Aguinaga rather than Recinas in denying his application for cancellation of removal does not even reach the le vel of being colorable. A ccordingly,

there is n o colorable

“question of law” that

we have juris diction to

review. See Avendano-Espejo v. Dep’t of Homeland Sec ., 448 F.3d 503, 505 (2d Cir. 2006) (dismissing a petition because the p etitioner

“failed to r

aise any colorable ‘constit

utional clai

ms or que stions o f law’ sufficient to invo ke our jur isdiction under the REA

L ID Act, 8U.S.C. § 1252( a)(2)(D) ” (emphasi s added)); cf. Saloum v. U.S. Citizenship & Immigration Servs. , 437 F.3d 23 8, 243 (2d Cir . 2006) (“Although

we certainly r

etain juris diction to

review due pr

ocess challenges under

the ‘const

itutional5 In Kha n v. Gonz ales , __ F.3d __, 2007 WL 2127712 (2d Cir. July 26, 2007), we reaffi

rmed that we have jurisdiction to review claims that “the age ncy applied a n erroneou s legal standard in m aking a discretionary determination.” Id. at *3 . We read this , i n conjunct ion wit h our earl

ier deci sions in Xiao Ji C hen , A vend ano -E spejo , and Saloum —as we mus t—to rea ff ir m the unco ntr over si al pro pos it io n t hat we ha ve j uri sdi ct io n t o det ermi ne ou r own jurisd iction ove r a pe tition fo r rev iew

. See K uha li v. Reno , 266 F.3d 93, 100 (2d Cir . 2001) (not ing “t he inher ent j uris dicti on of Ar ticle III fede ral cou rts to dete rmin e their jurisd iction”). Pu rsuan t to this autho rity, we m ust determ ine whether a peti tio ner’s arguments r aise any col orabl e ( i.e. , non- fri volous) const

itut ional clai ms or questi ons of l aw. If an ass erted constituti onal cl aim or quest ion of law i s col orabl e, we have j uris dicti on to r eview i t, whether or not i t i s ult

imatel y found to be merit ori ous. If

an argument i s fr

ivol ous, however , t

hen re gardl ess of the nomencl atur e or v erbal for mula us ed ( i.e. , its rhe toric ), we la ck ju risdic tion to rev iew it. See Arbau gh v. Y & H Corp. , 126 S. C t. 123 5, 12 44 n .10 (2 006 ) (“A claim invoki ng federal -quest

ion j uris dicti on . . . may be di smisse d for want of subj ect-matt er jur isdi cti on if it is no t col orabl e, i.e. , if it is ‘imm ater ial an d m ade solely for th e pu rpo se of obta ining jurisd iction ’ or is ‘w holly insu bstan tial an d friv olou s.’” (quoting Bell v. Hood , 327 U.S . 678 , 682 -83 (194 6)); cf

. Nei tz ke v. Wil li ams, 490 U.S. 319, 325 (1989) (holding t hat “a com plain t . . . is frivolo us w her e it lac ks an argu able basis e ither in law or in f act” ); Hida l go -D i s l a v. INS , 52 F. 3d 444, 447 (2d Cir. 1995) (dismissing pet iti on for review as fri

volous after “conclud[ing] that , alt hough [petiti oner’s] chal lenge justifies deta iled ev aluation , it neverthe less cann ot be ar gued in good faith on the me rits”).

Ou r appr oach to adju dicating frivolou s constitutio nal or leg al claim s is consisten t with that o f other C ircuits that h ave con side red the m atter . See , e.g. , Pan v. G onzales , 489 F. 3d 80, 84 ( 1st Ci r. 200 7) ( “To tri gger our j uris dicti on [over a p eti tio n for r eview under t he REAL ID A ct],the put ati ve const itut ional or le gal chall enge must be more t han a disgui sed chal

lenge t o factual fi

ndings. The underlyi

ng const itut ional or le gal ques tio n must be col orabl e; that i s, t he argu m ent a dv anc ed mu st, at the ver y lea st, hav e som e po tentia l valid ity.”); Jarbough v. Att’y Gen. , 483 F. 3d 184, 189 ( 3d Cir. 2 007 ) (“Pe titione rs alle ging ‘con stitutio nal c laim s’ und er § 1 252 (a)(2)(D ) mu st, as a th resh old, sta te a c olor able viola tion o f the U nited State s Co nstitu tion.” ); Falek v. G onzales , 475 F.3d 28 5, 289 n.2 (5th Cir. 2007) (“[Petitioner] fram es his ‘legal’ a rgu m ent, th at the BIA did not fo llow its ow n pr ece de nt, to c loak a req ues t for re view of the BIA 's disc retio nar y de cision , whic h is no t a qu estion of law .” (inte rna l quo tation ma rks o m itted )); Mou awad v. Gonz ales , 485 F. 3d 405, 411 ( 8th Cir . 2007) (dis missi ng peti tio n for r eview becaus e peti tio ner “does n ot rai se any col orabl e const itut ional cha lleng es or qu estion s of law as to th e IJ's d eter m inatio ns”); Vargas-H ernandez v. G onzales , __ F.3d __, No. 04-73343, 200 7 W L 2 215 796 at *1 (9 th C ir. Au g. 3, 20 07) (“ W e ha ve ju risdic tion o ver petitio ns fo r rev iew that ra ise co lorab le con stitutio nal c laim s or q ues tions o f law .”); Arias v. U .S. Att’y G en .,482 F .3 d 128 1, 1284 (1 1th Cir . 2 007) (“ Whil e we ‘retain jurisd iction to rev iew du e pr oce ss ch allen ges u nd er th e co nstitu tiona l claim s lang uag e of th e R EA L ID Ac t, a petiti oner must allege at l east a colorabl e constit utional vi olati on.’” (

quoting Saloum v. U.S. Cit izens hip & Imm ig. Servs ., 437 F.3 d 23 8, 24 3 (2d Cir. 2 006 ))); id. at 1284 n. 2 (“For a constituti onal cl aim to be co lorab le, the al leged vi olat

ion need not be su bstan tial, bu t the c laim mu st hav e som e po ssible valid ity.” (inte rna l quo tation ma rks o m itted )); see also Ablahad v. Gonz ales , No. 05 -4457 , 2007 W L 21 2818 2, *4 (6th C ir. 2007) (u npu blished sum ma ry ord er) (dism issing cha llenge to denial of asyl um applicat

ion beca use “pet

iti oner does no t rai se col orabl e const itut ional or le gal chall enges t o the deni al of his asy lum app licatio n” o n the basis o f its lack of tim eline ss); Cerv antes d e Her nand ez v. C hertoff , 215 Fed. App’x 509, 513 (7th Cir. 2007) (

unpubli shed summary order) (dis missi ng peti tio ner’s chall enge to deni al of her reques t for

adjust ment of statu s on g rou nd s that it “ do es no t pre sent a co lorab le du e pr oce ss claim ”); Kechk ar v. Gonz ales , Nos. 06-9583, 06-9595, 2007 W L 199 1162, *3 (10th C ir. 2007) (unpublished sum mary order) (dismissing challenge to d enial of voluntary dep arture whe re the “a lien doe s not pre sent a co lorable c onstitution al claim capa ble of av oiding th e jurisdic tional bar ”); cf. Califano v. Sand ers , 430 U.S. 99, 109 (19 77) (holding that a statute will not be interpreted to limit federal courts’ jurisdiction over “adjud ication of colorable constituti onal cl aims .

. . unless Congress’ int ent t o do so i s manifes ted by cl ear and conv incing e viden ce” (em phasis ad ded ) (internal qu otation m arks om itted); Harris v. U.S. R.R. Ret

ire ment Bd. , 198 F.3d 139, 14 2-43 (4 th Cir. 19 99) (hold ing that “th ere is an e xcep tion to the b ar to jud icial review [establishe d by statute ove r pe titions f or re view of ag enc y de cision s] tha t app lies w hen the re fusa l to reo pen is cha lleng ed by c olor able const ituti onal claims”) . We hav e foun d no cas e in which a Court of Appe als exer cis es j uri sdi cti on over fri volo us con stitutio nal o r lega l claim s m ade by a n im m igratio n pe titione r. 11 claims’ lang

uage of the REAL

ID Act, a pet

itioner m ust allege at

least a color

able consti

tutional violation.” (internal quotation marks omitted)). 5 We also lack ju

risdiction to revie

w Barco-Sa

ndoval’s ar

gument that

he should have received12

cancellation

of removal

even under t

he Monreal-

Aguinaga standard. Barco-Sandoval asserts that he “met his b urden of p roof” on t he issue o f whether h e had demons trated excep tional and extremely unusual hardship, Pet’r Br. 4, and that “[b]y failing to specify why [he] had failed in that burden, or why the case was different than the BIA’s holding in Recinas , the IJ viol ated due process requirem ents set

by this Cou

rt,” id . In asses sing wheth er we have jur isdiction to review t

his argument, we must “de termine, r

egardlessof the rhe toric empl oyed in the p etition, wh ether it merely quarrels over the correctness of the factual findings or justification for the discretionary choices, in

which case [we

] would lack j urisdict

ion.” Xiao Ji Chen II

, 471 F.3d at 329. We conclude that, desp ite the nom enclature u sed by Barco-Sandoval, his ass ertion that he shoul d have obtain ed cancellation of removal under the applicable leg al standard constitutes a “mere[ ] quarrel[ ] over the

correctne ss of th e factual fi ndings or justifi cation for

the discretionary ch oices” made by the agency, a quarrel that we lack jurisdiction to review. We hold that Barco-Sandoval’s “resort to the terms conventionally used in

describin g constit utional clai

ms and ques tions of

law,” id. at 331—here , his allegation that the IJ’s decision violated “due process requirements”—does not “overcome Congress ’s decisio n to deny jur isdiction over claimswhich in real

ity consis t of noth

ing more than quarrelsover the cor

rectnessof fact-f

inding and o f discret

ionary decis

ions,” id.

C ONCLUSIO N For the r easons s tated above,

Barco-Sandoval’s pet

ition is d ismiss ed.