United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 3, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-61092
Summary Calendar
ELIZABETH CROSBY-VARGAS,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A42-340-269)
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Petitioner Elizabeth Crosby-Vargas (Crosby), a native and
citizen of Mexico, seeks our review of the Board of Immigration
Appeals’s (BIA) affirmance of the Immigration Judge’s (IJ) denial
of her application for discretionary waiver of removal under former
§ 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1182(c)(1994). She argues that the IJ denied her due process at
the hearing on her application by assuming the role of prosecutor
in cross-examining her. She further asserts that she was denied
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
due process in her appeal to the BIA by the BIA’s failure to make
required findings of fact and conclusions of law when it affirmed
the IJ’s decision.
As the parties agree, the transitional rules of the Illegal
Immigration Reform and Immigration Responsibility Act (IIRIRA)
apply here because Crosby’s removal proceeding began before
April 1, 1997, and concluded more than 30 days after September 30,
1996. See Goonsuwan v. Ashcroft, 252 F.3d 383, 386 (5th Cir.
2001); IIRIRA § 309(a), (c)(1). Section 106(c) (codified at 8
U.S.C. § 1105(a)(c)(1994)) of the INA, which the transitional rules
incorporate, requires an alien to exhaust his administrative
remedies; and his failure to do so serves as a jurisdictional bar
to our consideration of the issue. Wang v. Ashcroft, 260 F.3d 448,
452-53 (5th Cir. 2001); Goonsuwan, 252 F.3d at 386-87. Because in
her BIA appeal Crosby failed to raise her due process challenge to
the IJ’s cross-examination, we lack jurisdiction to consider this
issue. See Anwar v. INS, 116 F.3d 140, 144 n.4 (5th Cir. 1997);
cf. Calderon-Ontiveros v. INS, 809 F.2d 1050, 1051-52 (5th Cir.
1986).
As the Attorney General points out, there are also
jurisdictional obstacles to our review of Crosby’s claim that she
was denied due process in her BIA appeal. Under Lerma de Garcia v.
INS, 141 F.3d 215, 216-17 (5th Cir. 1998), we lack jurisdiction
over Crosby’s claim. In light of the Supreme Court’s statement in
Calcano-Martinez v. INS, 533 U.S. 348, 349 n.2 (2001), that
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constitutional concerns must be considered in determining the scope
of IIRIRA’s jurisdiction-stripping provisions, however, we recently
left open the question whether our jurisdiction would extend to
substantial constitutional claims. Flores-Garza v. INS, 328 F.3d
797, 803 n.5 (5th Cir. 2003). Nevertheless, because Crosby cannot
prevail regardless of whether we have jurisdiction, we do not
address this question. See United States v. Alvarez, 210 F.3d 309,
310 (5th Cir. 2000); United States v. Weathersby, 958 F.2d 65, 66
(5th Cir. 1992).
Contrary to Crosby’s contention, the regulation used by the
BIA to affirm the IJ’s decision, 8 C.F.R. § 3.1(e)(4), now found at
8 C.F.R. § 1003.1(e)(4), does not require —— indeed, specifically
prohibits —— the BIA from including any further explanation or
reasoning when affirming the decision of the IJ without opinion.
To the extent that Crosby is contending that due process required
the BIA to make specific findings of fact and conclusions of law in
affirming the IJ’s decision, her argument is foreclosed by our
decision in Soadjede v. Ashcroft, 324 F.3d 830, 832-33 (5th Cir.
2003).
For the foregoing reasons, Crosby’s petition for review is
DISMISSED IN PART FOR LACK OF JURISDICTION AND DENIED IN PART.
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