Nelson Acosta-Roque v. Eric Holder, Jr.

MEMORANDUM

Nelson Acosta-Roque petitions for review of a final order by the Board of Immigration Appeals (BIA) finding him removable as a “criminal alien.” See 8 U.S.C. § 1182 (a)(2). He challenges the BIA’s factual finding that he is Victor Antonio Pecheca-Aromboles, who was convicted in 1991 of delivery of a controlled substance in Pennsylvania and removable for that conviction.

We have jurisdiction over the removal of criminal aliens only as to issues involving “constitutional claims or questions of law.” 8 U.S.C. § 1252 (a)(2)(C), (a)(2)(D). But we retain jurisdiction to determine our jurisdiction, which in this case requires us to review the BIA’s finding that Mr. Acosta-Roque is a criminal alien. See Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir.2010). In so doing, we must determine whether substantial evidence supported the BIA’s finding “by clear and convincing evidence” that Mr. Acosta-Roque and Mr. Pecheca-Aromboles are the same person. See 8 U.S.C. §§ 1229a(c)(3)(A), 1252(b)(4)(B); Nakamoto v. Ashcroft, 363 F.3d 874, 882 (9th Cir. 2004).

Mr. Acosta-Roque argues that the BIA’s reliance on fingerprint evidence to determine his identity was error. But he has…