IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 order of the Board of Immigration Appeals (BIA) dismissing his

appeal from the immigration judge’s (IJ) order of removal and discretionary

denial of cancellation of removal. The basis for Garcia-Reyes’s removal was his

guilty plea conviction in Texas for possession of more than 2,000 pounds of

marijuana.

United States Court of Appeals

Fifth Circuit

F I L E D

August 29, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 12-60936

Garcia-Reyes first contends that the BIA violated his due process rights

by considering a draft report by the Texas Department of Public Safety which

indicated that he was observed unloading the marijuana underlying his

conviction. According to Garcia-Reyes, that report was unreliable and

untrustworthy such 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. See 8 U.S.C. § 1252(a)(2)(D).

“The test for admissibility of evidence in a deportation proceeding is

whether the evidence is probative and whether its use is fundamentally fair so

as not to deprive the alien of due process of law.” Bustos-Torres v. INS, 898 F.2d

1053, 1055 (5th Cir. 1990). The disputed report satisfied this test, and GarciaReyes’s petition for review is denied as to this issue. To the extent

Garcia-Reyes’s complaints 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 we lack jurisdiction to review. See

§ 1252(a)(2)(B)(i).

In his second issue, Garcia-Reyes contends that the BIA committed three

legal errors in finding that he was not rehabilitated after his marijuana

conviction: (1) the BIA erroneously treated his assertions of factual innocence

regarding that conviction as the basis for finding that he was not rehabilitated;

(2) the BIA erred in finding that he had not presented substantial evidence of his

rehabilitation; and (3) the BIA failed to give proper deference to the decision of

the Board of Pardons and Paroles of the Texas Department of Criminal Justice

to grantGarcia-Reyes parole. While Garcia-Reyes frames his arguments as legal

challenges, we look past an alien’s characterization of an issue and determine

whether 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, 599-600 (5th Cir. 2006). 

Garcia-Reyes’s arguments simply contest the weight given by the BIA and IJ to

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No. 12-60936

different pieces of evidence concerning the issue of rehabilitation. His

arguments amount to an attempt to challenge the BIA’s and IJ’s balancing of the

factors relevant to the discretionary decision to deny cancellation of removal. 

Accordingly, we lack jurisdiction to review his arguments, and his petition for

review is dismissed with respect to this issue for lack of jurisdiction. See

§ 1252(a)(2)(B)(i).

DISMISSED IN PART FOR LACK OF JURISDICTION; DENIED IN

PART.

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