United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 13, 2007
Charles R. Fulbruge III
Clerk
No. 06-60615
Summary Calendar
JOSE ASENCION TORRES-MARTINEZ,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A41 312 816
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Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Asencion Torres-Martinez (Torres) petitions for review
of a Board of Immigration Appeals (BIA) decision dismissing his
appeal from a final order of removal. Torres argues that the BIA
erred by upholding the immigration judge’s decision following the
hearing of May 24, 2005, to pretermit consideration of his waiver
application under former Immigration and Nationality Act § 212(c)
based on Torres’s prior aggravated felony conviction. Torres
argues that his waiver application should have been considered
under the law in place in 2003, which would have applied had he
*
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this opinion should not be published and is not precedent except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.
No. 06-60615
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received effective assistance of counsel and had his waiver
application been timely filed at the earlier time. Torres
contends that his waiver application would likely have been
granted under the law in place in 2003 and that the subsequent
clarification of the law in 8 C.F.R. § 1212.3(f)(5) and
In re Blake, 23 I & N Dec. 722 (BIA 2005), should not apply. He
asserts, citing Batanic v. INS, 12 F.3d 662 (7th Cir. 1993), that
the failure to consider his application nunc pro tunc violates
due process.
Although we generally lack jurisdiction to review final
orders of removal of aliens who have been convicted of aggravated
felonies, see 8 U.S.C. § 1252(a)(2)(C), pursuant to the REAL ID
Act, we retain jurisdiction over constitutional claims or
questions of law. § 1252(a)(2)(D); see Rodriguez-Castro v.
Gonzales, 427 F.3d 316, 319 (5th Cir. 2005). Therefore, we may
consider Torres’s assertion that his right to due process was
violated by the failure to consider his arguments as of the time
his attorney should have filed his § 212(c) application. We
review claims of a due process violation de novo. Anwar v. INS,
116 F.3d 140, 144 (5th Cir. 1997).
Torres has not pointed to any authority or evidence
supporting his claim that he would likely have received a waiver
under § 212(c) had his application for such relief been
adjudicated in 2003. Nor has he supported his contention that
application of the clarification in Blake and § 1212.3(f)(5)
No. 06-60615
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changes anything that would affect the process he received. As
Torres admits, the statutory language regarding waivers of
admissibility has not changed. Torres’s reliance on Batanic in
support of his argument is misplaced. Batanic involved a change
in statutory law and is neither controlling nor persuasive
authority for Torres’s contention. See Batanic, 12 F.3d at 664,
667-68.
The petition for review is DENIED.