United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 12, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-60173
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NUR ALI,
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL,
Respondent
Petition for Review from an Order of the
Board of Immigration Appeals
No. A78 881 618
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
I.
Petitioner Nur Ali is a native and citizen of Bangladesh.
He entered the United States in July 1996 as a non-immigrant
visitor. Ali’s visa permitted him to remain in the country until
December 29, 1997, but he stayed past that date.
On July 10, 2003, the Department of Homeland Security filed
a Notice to Appear (“NTA”) in immigration court, charging Ali as
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
removable under section 237(a)(1)(B) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1227(a)(1)(B).1 The NTA stated
that Ali’s hearing would occur at a date and time “to be set.”
On the following day, July 11, Ali was notified that his hearing
had been set for July 31, 2003.
Ali appeared at the hearing and did not contest the factual
allegations against him. He moved to terminate the removal
proceedings on constitutional grounds. Specifically, Ali alleged
that the National Security Entry-Exit Registration System
(“NSEERS”), pursuant to which he was placed in removal
proceedings, applied only to males from predominantly Muslim
countries. The parties agree that Ali also objected to the
immigration court’s exercise of jurisdiction. Alternatively,
Ali moved to voluntarily depart the United States. On October
30, the immigration judge rejected Ali’s request to terminate the
proceedings and granted his motion to voluntarily depart. On
jurisdictional grounds, the court declined to examine the
constitutional question.
On February 3, 2005, the Board of Immigration Appeals
(“BIA”) adopted and affirmed the decision of the immigration
judge. Ali appeals. Because he raises constitutional and legal
questions, our review is de novo. Bustamante-Barrera v.
1
In its definition of deportable aliens, the statute
includes those present in the country in violation of the law. §
1227(a)(1)(B). The parties do not dispute that Ali overstayed
his visa.
2
Gonzales, 447 F.3d 388, 393 (5th Cir. 2006) (citing Singh v.
Gonzales, 436 F.3d 484, 487 (5th Cir. 2006) and Soadjede v.
Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003)).
II.
First, Ali argues that the NSEERS violates the First, Fourth
and Fifth Amendments. He claims that, by targeting immigrants
mostly from predominantly-Islamic countries (including his native
Bangladesh), the program discriminates on the basis of religion.2
To this Ali adds the claim that NSEERS’s unconstitutionality made
his apprehension pursuant to it a violation of the Fourth
Amendment. Because this court and others have repeatedly upheld
NSEERS’s classifications against constitutional attack, Ali v.
Gonzales, 440 F.3d 678, 681 n.4 (5th Cir. 2006), we reject these
claims.
Second, Ali asserts that the immigration court lacked
jurisdiction because the NTA did not include a date and time. He
claims this violates 8 U.S.C. § 1229(a)(1), which provides that
written notice of removal proceedings must include, among other
things, the time and place the proceedings will be held. §
1229(a)(1)(G)(i). Because Ali did not contest his removability
to the immigration judge, he cannot argue now that the judge
2
NSEERS is a government program which, pursuant to 8 U.S.C.
§§ 1303 and 1305, tracks foreign nationals from various countries
who reside in the United States. Ahmed v. Gonzales, 447 F.3d
433, 434 n.1 (5th Cir. 2006). The parties do not dispute
Bangladesh is one such country.
3
lacked jurisdiction to find him removable. See Sohani v.
Gonzales, No. 05-60435, 2006 WL 2004985 at *1 (5th Cir. July 13,
2006) (citing Qureshi v. Gonzales, 442 F.3d 985, 990 (7th Cir.
2006)).
The petition for review is DENIED.
4