Huascar Cristian VERAS-MARTINEZ, aka Huascar Veras, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 604 F. App'x 46

SUMMARY ORDER Petitioner Huáscar Cristian Veras-Mar-tinez, a native and citizen of the Dominican Republic, seeks review of a January 30, 2014, decision of the BIA affirming a September 26, 2013, decision of an Immigration Judge (“IJ”) denying his motion to terminate proceedings. In re Huascar Cristian Veras-Martinez, No. A045 382 (B.I.A. Jan. 30, 2014), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. Hartford Sept. 26, 2013). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

We lack jurisdiction to review a final order of removal against an alien, such as Veras-Martinez, who was found removable based on his previous conviction of an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). Nevertheless, we retain jurisdiction to review constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D). For jurisdiction to attach, however, such claims must be colorable. See Barco-Sandoval v. Gonzales, 516 F.3d 35, 40-41 (2d Cir.2008). Here, Veras-Martinez has raised no colorable claim.

Veras-Martinez’s proportionality argument is frivolous. “It is settled that deportation, being a civil procedure, is not punishment and the cruel and unusual punishment clause of the Eighth Amendment accordingly is not applicable.” Santelises v. INS, 491 F.2d 1254, 1255-56 (2d Cir.1974); see also Harisiades v. Shaugh nessy, 342 U.S. 580, 594, 72 S.Ct. 512, 96 L.Ed. 586 (1952); Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 37 L.Ed. 905 (1893). And while in Padilla v.

Kentucky the Supreme Court acknowledged that “deportation is a particularly severe ‘penalty,’ ” it stated that “it is not, in a strict sense, a criminal sanction.” 559 U.S. 356, 365, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Veras-Martinez’s remaining due process arguments are also frivolous. “Parties claiming denial of due process in immigration, cases must, in order to prevail, ‘allege some cognizable prejudice fairly attributable to the challenged process.’ ” Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.2008) (quoting Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir.2004)).

Other than his meritless proportionality argument, Veras-Martinez did not raise any of the alleged due process violations — that the IJ did not grant him a hearing on his right to apply for relief, give him an opportunity to seek relief, or advise him of available relief — before the BIA. He therefore failed to exhaust these claims. See Steevenez v. Gonzales, 476 F.3d 114, 117 (2d Cir.2007). Regardless, Veras-Martinez was given an opportunity to be heard on his motion to terminate, as counsel argued proportionality before the IJ and filed a brief in support of that argument.

The IJ asked him whether he would apply for any relief, and he expressly stated his intent to seek termination of the proceedings but no other relief. Even assuming the IJ failed to meet an obligation to advise him of available relief, his aggravated felony conviction precludes asylum, withholding of removal, and cancellation of removal, and he has not identified, either on appeal to the BIA or before this Court, any other relief for which he may be eligible. See 8 U.S.C. §§ 1158(b)(2)(A), (B); 1229b(a)(3); 1231(b)(3)(B). Accordingly, Veras-Mar-tinez’s due process arguments are frivolous.

For the foregoing reasons, the petition for review is DISMISSED for lack of jurisdiction.