### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60936 Summary Calendar

HOMERO GARCIA-REYES,
Petitioner

v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A070 290 810

Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM: * Homero Garcia-Reyes, a native and citizen of Mexico, has filed a petition for review of the o rder of the Board of Immigration Appeals (BIA) dismissing his

a p p eal from the immigration judge’s (IJ) order of removal and discretionar y denial of cancellation of r emoval. The basis for Garcia-Reyes’s removal was his guilty plea conviction in Texas for possession of m ore than 2,000 p ounds of marijuana. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 29, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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Garcia-Re y e s f

i r s t contends that the BIA violated his due process rights by considering a draft r eport by the Texas Department of Publi c S a f ety which indicated that he w as observed u nloading the marijuana u nderlying his conviction. According t o Garcia-Reyes, that report w as unrel i ab le and untrustworthy s uch that its admission as evidence violated his due process right to a fundamentally fair hearing. We have jurisdiction to review constitutional claims and questions of law. See8 U.S.C. § 1252(a)(2)(D). “The test for admissibility of evidence in a deportation proceeding is whether the evidence i s probative and whether its use i s f undamentally fair so
as not to deprive the alien of due p rocess of l aw.” Bustos-Torres v. INS , 898 F.2d 1053, 1055 (5th Cir. 1990). The disputed report satisfied this test, and GarciaRe y e s ’ s p e t i t ion for r eview is denied as t o this i ssue. To the extent Garcia-Reyes’s c omplaints about the report attack the weight it was afforded by the BIA and IJ, his arguments amount to a challenge to the ultimate decision to deny discretionary relief, an issue w e lack j urisdiction to review. See § 1252(a)(2)(B)(i). In his second i ssue, G arcia-Reyes contends that the B IA committed three le g a l e rrors in finding that he was not rehabilitated after his marijuana conviction: (1) the BIA erroneously treated his a ssertions of f actual innocence regarding that conviction as the b asis for finding that he was not rehabilitated; (2) the BIA erred i n finding that he had not presented substantial evidence of his rehabilitation; and ( 3) the BIA failed to give proper deference to the d e cision of the B oard of Pardons and Paroles of the Texas D epartment of Criminal Justice to grant G arc i a - R e ye s p ar ole. While Garcia-Reyes frames his arguments as legal challenges, we look past a n alien’s c h a r a c terization of an issue and determine whe th e r his arguments actually seek review of the discretionary decision to deny cancellation of removal. See Falek v. Gonzales , 475 F.3d 285, 289 & n.2 (5th Cir. 2007); Delgado-Reynua v. Gonzales , 450 F.3d 596, 5 99-600 (5th Cir. 2006). Garcia-Reyes’s arguments simply contest the w eight given by the BIA and IJ to
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different p ieces of evidence concerning the i ssue o f rehabilitatio n . H is arguments amount to an attempt to challenge the B IA’s and I J’s balancing of the factors relevant t o the discretionary decision t o d e n y cancellation of r emoval. Acc o r d ingly, we lack jurisdiction to review his arguments, and his petition for review is d ismissed with r espect to this issue f or lack o f j urisdiction. See § 1252(a)(2)(B)(i). DISMISSED IN PART FOR LACK O F JURISDICTION; DENIED IN PART.

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