Seir Aminabed Cruz-Camey, a native and citizen of Guatemala, petitions for review of an order of the Board of Immigration Appeals (BIA) vacating an immigration judge’s (IJ’s) decision to grant petitioner’s application for cancellation of removal.
Cruz-Camey entered thе United States in 1995, was granted asylum, and in 1996 became a lawful permanent resident. In March 2004, he was аrrested for driving under the influence (DUI) and for possession of cocaine. Although these chаrges were continued without a finding, he was *29 ordered to complete a substance abuse program during his one-year probationary sentence. Within the year, however, petitiоner once again was arrested for DUI. As a result, the finding on the March 2004 charges was converted from “no finding” to “guilty,” he received and served a thirty-day sentence, and his driver’s license was rеvoked. In November 2005, petitioner was arrested a third time on DUI charges, whereupon he received a six-month sentence for his second DUI conviction, and twenty-four months for the third DUI conviction (with sixteen months suspended).
In March 2006, Cruz-Camey was placed in removal proceedings, based on his 2004 conviction for cocaine' possession. See 8 U.S.C. § 1227(a)(2)(B)(i). Petitioner concеded removability, but applied for cancellation of removal on the ground that his substanсe abuse and arrests stemmed from a treatable and transitory bout of depression. Follоwing an evidentiary hearing, the IJ granted the petitioner’s application for cancellation of removal, citing, inter alia, his acceptance of responsibility for the dangerousness of his criminal conduct, his close family ties and gainful employment in the United States, as well as his promises actively to continue substance-abuse rehabilitation. On appeal, however, the BIA vacated the grant of cancellation, finding no affirmative record evidence that Cruz-Camey either had undertaken or would undertake genuine efforts at rehabilitation, thеn ordered Cruz-Camey removed from the United States. In due course, Cruz-Camey petitioned for review of the BIA decision. 1
Cruz-Camey has conceded removability under § 1227(a)(2) (B) (i). Pursuant to 8 U.S.C. § 1229b(a), the Attornеy General has the discretion to cancel removal, and absent any colorable constitutional issue or question of law, we lack jurisdiction to review the Attorney General’s exercise
vel non of
that discretion,
see id.
§ 1252(a)(2)(B)(i), 1252(a)(2)(C);
Elysee v. Gonzales,
The petitioner presents but one legal argument: that the BIA acted
ultra vires
in not only vacating the IJ’s cаncellation of removal, but in also affirmatively ordering petitioner removed from the United States. Petitioner insists that only the IJ has the authority to enter such an order in the first instance, and that the BIA should have remanded the case to the IJ for further proceedings on the removаbility issue. That rationale has been adopted by but one circuit court.
See Molina-Camacho v. Ashcroft,
The portion of the petition seeking review of the BIA’s discrеtionary denial of cancellation of removal is dismissed for want of appellate jurisdiction, and the remainder of the petition is denied on the merits.
Notes
. In November 2006, we denied a motion to stay petitioner's removal pending the outcome of this petition for review, citing our probable lack of appellate jurisdiction, and petitioner is no longer in the United States.
. In an effort to circumvent the jurisdictional bar, Cruz-Camey unsuccessfully attempts to recast his challenge to the BIA’s discretionary judgment as a "due process” claim. That effоrt will not wash.
See Martinez-Rosas v. Gonzales,