UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ NORMA GURROLA ONTIVEROS, Petitioner,

v. LORETTA E. LYNCH, United States Attorney General, Respondent. No. 15-9529 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before GORSUCH , MATHESON , and MORITZ , Circuit Judges.

________________ _________________ Norma Gurrola Ontiveros petitions for review of the Board of Immigration Appeals’ denial of her application for re lief from removal. Sh e challenges the BIA’s affirmance of an immigration judge’s holdi ng that she failed to demonstrate she was not married at common law on June 8, 1992—a determinati on which, as we explain below, makes Petitioner ineligib le for adjustment of status.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 27, 2016 Elisabeth A. Shumaker Clerk of Court2 Because Petitioner is a criminal alien, we have jurisdiction to review her contentions only to the extent that she raises “constituti onal claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). We dism iss her petition for lack of jurisdiction because Petitioner’s cl aims either aren’t reviewab le under § 1252(a)(2)(D) or she failed to exhaust th em before the BIA, see id. § 1252(d)(1). I. Background Petitioner, a native and citizen of Mexi co, entered the United States without inspection in 1986. She was convicted in Colorado state court in 1997 of criminal attempt to commit trafficki ng in food stamps. In 2010, the Department of Homeland Security served Petitioner with a no tice to appear seeking her removal 1 as an alien (1) present in the United States without be ing admitted or paroled and (2) convicted of a crime involving moral turpitude. See 8 U.S.C. §§ 1182(a)(6)(A)(i), (a)(2)(A)(i)(I). Having admitted the factual allegations in the notice to appear and conceded removability, she sought relief fr om removal. She ap plied for adjustment of status to lawful permanent resident under 8 U.S.C. § 12 55, based upon a visa petition filed on her behalf in 2009 by one of her daughters, who is a United States citizen. 2

1 Petitioner had previously applied to United States Citizenship and Immigration Services for adjust ment of status and a waiver of inadmissib ility. After USCIS denied her application, DHS commenced these re moval proceedings. 2 Petitioner also applied for a waiver of her inadmissibility resulting from her Colorado conviction. See 8 U.S.C. § 1182(h) (permitting the Attorney General to waive inadmissibility for aliens convicted of cr imes of moral turpitude).3 An alien ordinarily must have been “ins pected and admitted or paroled into the United States” to adjust her status under § 1255. Id. § 1255(a). Because Petitioner entered the United States without inspecti on, she relies on an exception to this requirement, claiming eligibility as an al ien who, among othe r conditions, is the beneficiary of a visa petition that was file d with the Attorney General on or before April 30, 2001. See id. § 1255(i)(1)(B)(i). A qualifyi ng visa petition serves to “grandfather” the alien benefici ary’s ability to apply for ad justment of status, but it must have been properly filed on or befo re the statutory deadline and “approvable when filed.” 8 C.F.R. § 1245.10(a)(1)(i)(A ). “Approvable when filed” means that the visa petition was “properl y filed, meritorious in f act, and non-frivolous” on the filing date and under the circumstances existing at that time. Id . § 1245.10(a)(3). To support her status as a grandfathered alien, Pe titioner points to a visa petition that her mother, a la wful permanent resident, fi led on her behalf in June 1992. The parties agree that Petitioner was eligible as the beneficiary of that petition if she was the unmarried daughter of a lawful permanent resident. See 8 U.S.C. § 1153(a)(2)(B) (providing a visa category for unmarried sons and daughters of lawful permanent residents). Thus, her mo ther’s visa petition was approvable when filed if Petitioner was unmarried in June 1992. At a hearing before the IJ, the Petitioner sought to show sh e was unmarried in June 1992. DHS, on the other hand, pr esented evidence indicating Petitioner and Jose Alfredo Gomez were common-law marrie d under Colorado law at that time. In reviewing the evidence, the IJ pointed to Petitioner’s statements and submissions to4 the government regarding the existence and length of her marriage to Gomez, as well as their six children’s use of Gomez’s surname. Ultimately, the IJ found that Petitioner had “created an am biguous situation” and c onsequently hadn’t met her burden to show she was unmarried in June 1992. Admin. R. at 67. Because she couldn’t satisfy all of the eligibility requirements for adjustment of status under § 1255, the IJ ordere d Petitioner removed. In her appeal to the BIA, Petitione r focused on Colorado precedent requiring clear, consistent, and convi ncing evidence to prove a co mmon-law marriage. Because the IJ characterized the evidence here as ambiguous , Petitioner contended the evidence could not have satisfied Colora do’s high evidentiary standard. Thus, she reasoned that the IJ clearly erred in findi ng she was in a common-law marriage as of June 1992. But the BIA disagreed with her premise, concluding that regardless of the burden of proof required to establish a common-law marriage under Colorado law, Petitioner bore the burden to establish her eligibility for reli ef in immigration proceedings. After reciting th e IJ’s factual findings, the BI A found no clear error in the IJ’s “ultimate factual de termination” that Petitione r was common-law married at the time her mother fi led the visa petition on her behalf in June 1992. Admin. R. at 6. Petitioner timely filed a pe tition for review from the BIA’s dismissal of her appeal. Because a single member of the BIA affirmed the IJ’s denial of Petitioner’s application for relief from rem oval in a brief order, we re view the BIA’s order rather5 than the IJ’s decision. See Uanreroro v. Gonzales , 443 F.3d 1197, 1204 (10th Cir. 2006). Before us, Petitioner asserts that th e BIA erred by reviewing for clear error, rather than de novo, the IJ’s legal conclu sion that she was in a common-law marriage in June 1992, and by failing to require that evidence of a Colorado common-law marriage be clear, consistent, and convin cing. She further argues that the BIA’s findings are not supported by substantial evidence, and th at the BIA misrepresented the record and ignored evidence in violation of her due process right to be heard in a meaningful manner. Finally, she contends that the BIA e rred in concluding that she failed to meet her burden of proof to s how by a preponderance of the evidence that she was eligible for adjustment of status. II. Jurisdiction “We have jurisdiction to de termine our jurisdiction.” Diallo v. Gonzales , 447 F.3d 1274, 1281 (10th Ci r. 2006) (internal quotati on marks omitted). Our jurisdiction over this petition fo r review is limited in two respects. First, because Petitioner is a criminal alien, we can review only “constitu tional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D); see also id. § 1252(a)(2)(C) (otherwise precluding review of final removal orders against alie ns removable by reason of having committed certain crimin al offenses). Second, we lack jurisdiction to review claims that Petitioner didn’t exhaust before the BIA. Akinwunmi v. INS , 194 F.3d 1340, 1341 (10th Cir. 1999) (per curiam)

.6 A. Constitutional Claims or Questions of Law As a preliminary matter, the Attorney General argues that Petitioner raises no constitutional claim or question of law over wh ich we have jurisdiction. In her reply brief, Petitioner responds that she ra ises two questions of law. In Diallo , we construed “questi ons of law,” as used in § 1252(a )(2)(D), to mean “a narrow category of issues regarding stat utory construction,” 447 F.3d at 1282 (internal quotation marks omitted), rather than “all claims having a legal dimension,” id. at 1281. Nevertheless, Petitioner mainta ins this rule isn’t “complete ly inflexible,” Pet. Reply Br. at 5, and she asserts that we have ju risdiction over claims that “‘touch upon’” matters of statut ory construction, id. (quoting Lorenzo v. Mukasey , 508 F.3d 1278, 1282 (10th Cir. 2007)). And, according to Petitioner, the issue whether she was married at common law in Colorado in June 1992 presents a legal question because it requires application of the Colorado eviden tiary standard to the relevant factual findings. But while this issu e may possess some legal dime nsion, it neither presents nor touches upon matters of st atutory construction. Ther efore, we conclude this claim doesn’t fall within the narrow paramete rs of a “question of law” reviewable under § 1252(a)(2)(D). Petitioner also suggests that she presents a reviewable question of law with her claim that the BIA failed to comply with its governing regulation by reviewing the IJ’s legal determinations de novo under 8 C.F.R. § 1003. 1(d)(3)(ii). She maintains that the BIA erred in reviewi ng for clear error the IJ’s dete rmination that she was in a common-law marriage in June 1992. In support, Petitioner points out that in7 Lorenzo , we reviewed an alien’s claim that DHS failed to comply with a regulatory procedure. See 508 F.3d at 1282-83. But we need not decide whether Petitioner’s claim presents a question of law because, as we explain below, Petitioner didn’t exhaust this claim before the BIA. Lastly, to the extent that Petitioner argues her constitutional claim presents a reviewable claim under § 1252(a)(2)(D), we are not persuaded th at her contentions amount to a reviewable due process claim. “An alien in rem oval proceedings is entitled only to the Fifth Am endment guarantee of fundament al fairness, or in other words, only to procedural due process, wh ich provides the opportunity to be heard at a meaningful time and in a meaningful manner.” Alzainati v. Holder , 568 F.3d 844, 851 (10th Cir. 2009) (int ernal quotation marks a nd alteration omitted). Petitioner argues that the BIA’s decisi on is not supported by substantial evidence and that its “misrepr esentations of the evidentia ry record and failure to address significant evidence favo rable to [her] constitute a fa ilure to hear her case in a meaningful manner in violation of her due process rights.” Pet. Opening Br. at 37. But “[a]n alien does not present a colorabl e constitutional claim capable of avoiding the jurisdictional bar by ar guing that the evidence was incorrectly weighed, insufficiently considered, or s upports a different outcome.” Kechkar v. Gonzales , 500 F.3d 1080, 1084 (10th Cir. 2007) (holding challenges to the agency’s factual findings “cloaked in constitutiona l garb” are outside the scope of our judicial review under § 1252(a)(2)(D)); see also Alzainati , 568 F.3d at 851-52 (noting an argument that the IJ failed to explicitly consider certain evidence is properly viewed as a8 substantial-evidence argument, rather than a constitutional challenge). 3 Similarly, Petitioner’s weight-of-the-evidence arguments in this case don’t state a “colorable constitutional claim” subject to our jurisdiction. Alzainati , 568 F.3d at 851. B. Exhaustion of Remedies Even if Petitioner has raised a quest ion of law in her petition, we lack jurisdiction to review her contention because she failed to raise it before the BIA. We can review a final order of remova l only if “the alien has exhausted all administrative remedies availa ble to the alien as of right. ” 8 U.S.C. § 1252(d)(1). We lack jurisdiction to cons ider unexhausted claims. Akinwunmi , 194 F.3d at 1341. One important purpose of this rule is “to give the agency the opportunity to correct its own errors.” Garcia-Carbajal v. Holder , 625 F.3d 1233, 1237 (10th Cir. 2010). To exhaust some claims, a petitioner mu st bring them before the BIA in a motion to reopen or reconsider. See Sidabutar v. Gonzales , 503 F.3d 1116, 1122 (10th Cir. 2007). In Sidabutar, we held that the petitione rs failed to exhaust their procedural challenges to the BIA’ s allegedly de no vo fact-finding. Id. We concluded that these claims “should have been bro ught before the BIA in the first instance

3 Petitioner argues in her reply brief that she also ch allenges the BIA’s wholesale failure to consid er certain evidence, which if credited, would require reversal of the BIA’s decision. She asserts that this error implicat es due process. See Alzainati , 568 F.3d at 851. But she didn’t rais e this allegation of constitutional error in her opening brief and we decline to consider it. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (declining to consid er argument not raised in opening brief).9 through a motion to reconsider or reope n,” and the petitioners’ failure to do so deprived us of jurisdicti on to review the claims. Id. Here, we ordered the par ties to file supplemental briefs addressing whether Petitioner exhausted her claim that the BI A failed to comply with 8 C.F.R. § 1003.1(d)(3)(ii) by reviewi ng the IJ’s legal determina tion de novo. Petitioner responded that she raised that claim in her BIA appeal by identifying the applicable standards of review under the regulations. She argues that the BIA acknowledged those standards but nonetheless erred by re viewing a legal issue for clear error. 4 We are not persuaded that by reciting the standa rds of review in her BIA appeal brief, Petitioner sufficiently exhausted th e claim of error she raises in her petition: that the BIA misapplied those standards in its decision. See Garcia-Carbajal , 625 F.3d at 1237 (“[A]n alien must present the same specific legal theory to the BIA before he or she may advance it” in this court.). Moreover, our holding in Sidabutar required Petitioner to first raise this claim with the BIA in a motion to reconsider or reopen. Petitioner attempts to distinguish Sidabutar , noting that it addresse d exhaustion in a circum stance where the BIA sua sponte considered an issue not raised by the petitioner. But Sidabutar also reaffirmed the principle that when an issue is neither raised by a petitioner nor considered sua sponte by the BIA, the petitioner has failed to exhaust and we lack jurisdiction. See

4 Petitioner ignores that she argued in her BIA appeal brief that the IJ “committed a clear error. ” Admin. R. at 24.10 503 F.3d at 1122 (declining to review unraise d claims of error that the BIA had not substantively addressed sua sponte). Because Petitioner fails to raise any claim that is reviewable under § 1252(a)(2)(D) and that she exhausted befo re the BIA, we dismiss her petition for review for lack of jurisdiction. Entered for the Court

Nancy L. Moritz Circuit Judge