United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 5, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 04-60976
Summary Calendar
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HERIBERTO ALTAMIRANO-LOPEZ,
Petitioner,
versus
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent,
Petition for Review from an Order of the
Board of Immigration Appeals
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:
The question presented in this case is whether the Board of
Immigration Appeals (“BIA”) erred by affirming the Immigration
Judge’s (“IJ”) denial of Heriberto Ismael Altamirano Lopez’s
“Altamirano” motion to reopen removal proceedings.1 Because we find
that the motion was properly denied, we DENY the petition for review
1
While Petitioner states that 8 U.S.C. § 1229a(c)(6)
provides for motions to reopen, that section of the Code
discusses motions to reconsider. Title 8 U.S.C. § 1229a(c)(7)
governs motions to reopen. The analysis, however, will be the
same, regardless of the section relied on by the parties.
and AFFIRM the judgement of the BIA.
I. BACKGROUND
Altamirano, a native Nicaraguan, entered the United States,
without inspection, near Laredo, Texas on March 19, 2004.
Consequently, he was charged criminally with a violation of 8 U.S.C.
§ 1325(a)(1).2 Upon entry of his guilty plea, Petitioner was
sentenced to thirty days imprisonment, and was remanded to the
custody of the Attorney General.
On April 5, 2004, while serving his sentence, Altamirano
executed a stipulated request for an order to be removed from the
United States, which was also signed by the Department of Homeland
Security. The stipulation was submitted to the Immigration Court,
which issued the removal order on April 9, 2004.
On May 11, 2004, Petitioner filed a motion to reopen his
removal proceeding, asserting that he did not voluntarily,
knowingly, and intelligently execute the stipulated request for
removal. The IJ held a video-conference hearing with Altamirano and
19 other detainees who asserted similar claims. Petitioner alleges
that, at the hearing, the IJ favored questioning Altamirano himself,
2
Title 8 U.S.C. § 1325(a)(1) provides that “[a]ny alien who
enters or attempts to enter the United States at any time or
place other than as designated by immigration officers... shall,
for the first commission of any such offense, be fined under
Title 18 or imprisoned not more than 6 months, or both, and, for
a subsequent commission of any such offense, be fined under Title
18, or imprisoned not more than 2 years, or both.” 8 U.S.C. §
1325(a)(1).
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and refused to allow Petitioner’s attorney to question him.
Additionally, Altamirano claims that the IJ ended his testimony
before he finished speaking. Furthermore, Petitioner maintains that
the IJ took into account a sworn affidavit submitted by a
deportation officer after the close of the hearing. In the
affidavit, the officer purported that he had a conversation with
Altamirano regarding his understanding of the stipulated waiver.
Finally, Altamirano complains that the IJ failed to create and
preserve a record of the hearing.
After the hearing, the IJ denied Altamirano’s motion, finding
that there was no evidence to support the claim that Altamirano was
not advised of his rights or had problems which would minimize his
comprehension.
On September 30, 2004, the BIA adopted and affirmed the IJ’s
decision. The BIA acknowledged that Altamirano had been advised of
his rights in writing, in Spanish, prior to signing the stipulated
request upon which his removal order was based, and that the record
was lacking of any evidence that Altamirano did not voluntarily,
knowingly, and intelligently sign the request. Moreover, the BIA
noted that the stipulated request itself contains adequate advice
and warnings in both English and Spanish.
Petitioner appeals, claiming that when it considered this
motion to reopen, the BIA erred in affirming the IJ’s conduct that
he alleges deprived him of a fair hearing.
II. DISCUSSION
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While this Court reviews a denial of a motion to reopen under
a “highly deferential abuse-of-discretion standard,” Zhao v.
Gonzales, 404 F.3d 295, 303 (5th Cir. 2005), we review
constitutional challenges de novo. Soadjede v. Ashcroft, 324 F.3d
830, 831 (5th Cir. 2003). Additionally, motions to reopen
deportation proceedings are “disfavored,” and the moving party bears
a “heavy burden.” INS v. Abudu, 485 U.S. 94, 107-08 (1988).
Altamirano makes two main arguments: 1) the hearing on
Petitioner’s Motion to Reopen deprived him of the due process
protections provided by 8 U.S.C. § 1229a(b)(4)3; and 2) the hearing
on Petitioner’s Motion to Reopen deprived him of constitutional due
process. We will consider each claim in turn.
A. Petitioner’s Statutory Claim
3
Title 8 U.S.C. § 1229a(b)(4) provides:
In proceedings under this section, under
regulations of the Attorney General– (A) the
alien shall have the privilege of being
represented, at no expense to the Government,
by counsel of the alien's choosing who is
authorized to practice in such proceedings,
(B) the alien shall have a reasonable
opportunity to examine the evidence against
the alien, to present evidence on the alien's
own behalf, and to cross-examine witnesses
presented by the Government but these rights
shall not entitle the alien to examine such
national security information as the
Government may proffer in opposition to the
alien's admission to the United States or to
an application by the alien for discretionary
relief under this chapter, and (C) a complete
record shall be kept of all testimony and
evidence produced at the proceeding.
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The Petitioner argues that the IJ violated his rights pursuant
to 8 U.S.C. § 1229a(b)(4) by not allowing his attorney to question
him, ending his testimony before he finished speaking, taking into
account a sworn affidavit submitted by a deportation officer after
the close of the hearing, and by failing to create and preserve a
record of the hearing. Title 8 U.S.C. § 1229a(b)(4), however,
applies to removal proceedings -– not to motions to reopen. Motions
to reopen are motions to reconvene removal proceedings. To that
end, motions to reopen help to serve the due process requirements
associated with removal proceedings. Like section 1229a(b)(4),
subsection 1229a(c)(7) applies to “proceedings under [§ 1229a],” or
removal proceedings. Because the hearing on the motion to reopen
was not a removal proceeding, the Petitioner is not entitled to the
rights enumerated in 8 U.S.C. § 1229a(b)(4). Moreover, neither the
Immigration and Nationality Act, nor 8 C.F.R. § 1003.23, the section
of the regulations governing motions to reopen, provides for any of
the safeguards that Petitioner claims were denied.
B. Petitioner’s Fifth Amendment Claim
Petitioner also claims that the IJ violated his rights pursuant
to the Due Process Clause by not allowing his attorney to question
him, ending his testimony before he finished speaking, taking into
account a sworn affidavit submitted by a deportation officer after
the close of the hearing, and by failing to create and preserve a
record of the hearing. Because we determine that there is no
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liberty interest at stake in a motion to reopen, Altamirano cannot
establish a due process violation. The decision to grant or deny
a motion to reopen is purely discretionary. 8 C.F.R. §
1003.23(b)(1)(iv). Even if a moving party has established a prima
facie case for relief, an IJ can still deny a motion to reopen. 8
C.F.R. § 1003.23(b)(3). As we stated in Finlay v. INS, “the denial
of discretionary relief does not rise to the level of a
constitutional violation even if [the moving party] had been
eligible for it.” Finlay, 210 F.3d 556, 557 (5th Cir. 2000); see
also, Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.
2004)(“[Petitioner’s] motion to reopen does not allege a violation
of his Fifth Amendment right to due process because ‘the failure to
receive relief that is purely discretionary in nature does not
amount to a deprivation of a liberty interest.’”) (citation
omitted). Furthermore, when considering motions to reopen, many
judges merely consult the parties’ pleadings without even holding
a hearing. See, e.g., Ahwazi v. INS, 751 F.2d 1120, 1122-23 (9th
Cir. 1985). Hence, because there is no liberty interest at stake
in a motion to reopen, Altamirano cannot establish a due process
violation under the Fifth Amendment. Additionally, we find no other
evidence that the IJ abused his discretion in denying Petitioner’s
motion.
III. CONCLUSION
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For the foregoing reasons, we DENY the petition for review and
AFFIRM the judgment of the BIA affirming the Immigration Judge’s
denial of Altamirano’s motion to reopen removal proceedings.
AFFIRMED.
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