              Not for Publication in West's Federal Reporter
          United States Court of Appeals
                        For the First Circuit


No. 15-1573

                      BRONNY ALEXANDER VILLAR,
                              Petitioner,
                                   v.

                         LORETTA E. LYNCH,
                  UNITED STATES ATTORNEY GENERAL,
                              Respondent.

                PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                                 Before

                     Lynch, Lipez, and Thompson,

                            Circuit Judges.


     Paul M. Glickman and Glickman Turley LLP on brief for
petitioner.
     Benjamin C. Mizer, Principal Deputy, Assistant Attorney
General, Civil Division; Ernesto H. Molina, Jr., Assistant
Director, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice; and Anthony P. Nicastro, Senior Litigation
Attorney, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, on brief for respondent.


                          September 6, 2016
           LIPEZ,   Circuit   Judge.     Petitioner   Bronny   Alexander

Villar seeks relief from a ruling by the Board of Immigration

Appeals ("BIA") affirming an Immigration Judge's ("IJ") decision

that denied Villar's application for adjustment of status and

ordered him removed from the United States.      We lack jurisdiction

to consider Villar's request for relief, however, because the

agency's decision was discretionary.       See, e.g., Mele v. Lynch,

798 F.3d 30, 31-32 (1st Cir. 2015).       Hence, we must dismiss his

petition for review.

           We recount the salient facts.      Villar is a native and

citizen of the Dominican Republic who entered the United States in

October 2006 as a non-immigrant visitor authorized to remain in

the country through March 31, 2007.        Shortly before that period

expired, Villar applied to adjust his status to that of a lawful

permanent resident based on his marriage to a United States

citizen.   His application was denied.     In 2009, the Department of

Homeland Security began removal proceedings against him.

           Within the removal proceedings, Villar again filed an

application for adjustment of status.         The IJ determined that

Villar was eligible, see 8 U.S.C. § 1255(a), but ultimately

concluded that the equities weighed against the grant of such

discretionary relief.    The IJ found that the favorable factors --

including his marriage to an American citizen, three U.S. citizen

children, his payment of taxes, and his filing of tax returns --


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were outweighed by Villar's purchase and use of a phony birth

certificate to obtain a driver's license and his extended use of

that       false    identity.         The     IJ    described    this   conduct     as

"extraordinar[il]y serious."                The BIA, weighing de novo the same

adverse      and    positive    factors,       affirmed    the   IJ's     ruling    and

dismissed Villar's appeal.1

              In his brief to us, Villar claims that "[t]he IJ and BIA

committed an error of law by creating and adopting[] a new standard

of 'extraordinarily serious'" acts to deny him adjustment of

status, instead of examining whether his conduct fit a category

specified      by    statute    and    defined       in   case   law,   such   as    "a

particularly serious crime."                8 U.S.C. § 1158(b)(2)(A)(ii).          This

contention, however, is plainly an attempt to frame the agency

decision as a legal judgment -- rather than a discretionary, fact-

based one -- to avoid the strict limits on our jurisdiction to

review discretionary immigration decisions.                  See Mele, 798 F.3d at

32.        Notably,    we   "retain         jurisdiction    to   decide    colorable


       1   The BIA stated:

              The respondent used the fraudulent birth
              certificate to obtain a driver's license and
              assumed the identity on the birth certificate,
              Luigi Alvarado, as his own for numerous years.
              The seriousness of the respondent's actions
              was further aggravated when he was arrested
              and presented himself to police officers as
              Luigi Alvarado.

       BIA Op. at 2 (citation omitted).


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'constitutional claims or questions of law' embedded within a

petition for review of an alien's application for an adjustment of

status."   Id. (emphasis added) (quoting 8 U.S.C. § 1252(a)(2)(D)).

            We readily conclude, however, that Villar's effort to

identify an issue of law falls short.          The presence of a legal

question is "a matter of substance, not a function of labeling."

Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir. 2010).                    We have

previously said that "[s]imply describing . . . factual arguments

as   a   claim   that   the   agency   committed   an   error   of   law   is

insufficient to confer jurisdiction."        Jaquez v. Holder, 758 F.3d

434, 435 (1st Cir. 2014).       This is exactly what Villar has done.

His claim that the IJ created and applied a new, incorrect legal

standard is an attempt to cloak a disagreement with the IJ's

weighing of the facts in the guise of a question of law.                   As

described above, the IJ and BIA concluded, in their discretion and

as a factual matter, that the positive equities of Villar's case




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were outweighed by his creation and use of a false identity.2   We

do not have jurisdiction to review that discretionary judgment.3

          Accordingly, we dismiss Villar's petition.   So ordered.




     2 The IJ explicitly described her decision as discretionary:
"Although the Court finds the respondent to be statutorily eligible
for adjustment of status, the Court denies the application in the
exercise of its discretion." (Emphasis added.) The BIA "agree[d]
with the Immigration Judge's determination that negative factors
exist in this case warranting denial of the respondent's
application for adjustment of status as a matter of discretion."
(Emphasis added.)

     3 Because Villar did not raise his claim of legal error in
his appeal to the BIA, we also could dismiss his petition for
failure to exhaust his administrative remedies. See, e.g., Pérez
Batres v. Lynch, 796 F.3d 157, 159-60 (1st Cir. 2015) (explaining
that we lack jurisdiction to review claims "not advanced before
the BIA" (quoting Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir.
2004))).


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