Manzano-Garcia v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 15, 2005

Charles R. Fulbruge III
Clerk
No. 03-60745

ELISEO MANZANO-GARCIA, ET AL.,

Petitioners,

versus

ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL,

Respondent.

Petition for Review of a Final Order
of the Board of Immigration Appeals

Before JOLLY, JONES, and DeMOSS, Circuit Judges:

PER CURIAM:

Eliseo Manzano-Garcia, his wife, Reina Manzano-Olea, and their

minor child, Antonio Abraham Manzano-Olea (together, the

“Manzanos”) petition for review of the Board of Immigration

Appeals’ (“BIA”) order denying their motion to reopen removal

proceedings. For the following reasons, we DENY the Manzanos’

petition for review.

BACKGROUND

Mr. Manzano, a native and citizen of Mexico, entered the

United States on or about July 28, 1985, without being admitted or
paroled by an immigration officer. Mrs. Manzano and their two

sons,1 also natives and citizens of Mexico, entered the country in

April and August 1989, without being admitted or paroled by an

immigration officer. In 1998 the four family members were charged

with being subject to removal under the Immigration and Nationality

Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as

aliens present in the United States without being admitted or

paroled.

The Manzanos were scheduled for separate hearings in August

1998; the hearings were continued so the proceedings could be

consolidated. A hearing was held on September 17, 1998, and the

Manzanos, through counsel, admitted the allegations of fact,

conceded removal, and designated Mexico as their country of

removal. The Manzanos sought a 30-day continuance to explore

whether they were eligible for cancellation of removal.

On October 19, 1998, counsel advised that Mr. Manzano was not

eligible for cancellation of removal, but that he had filed,

through separate counsel, a labor certification application, which

was pending with the Department of Labor. The parties agreed to a

two-week continuance to verify the filing of the labor application.

Counsel alternatively sought a period of 120 days to make a

voluntary departure.

On November 12, 1998, Mr. Manzano presented the immigration

1
One of their sons is an adult and did not join in the
Manzanos’ motion to reopen.

2
judge (“IJ”) with a receipt for the labor certification

application, which had been filed on November 17, 1997. Mr.

Manzano requested another continuance, this one for six months, to

obtain approval of the certification and to file and obtain

approval of an immigrant visa petition. The government opposed

this request. During the discussion before the IJ, it was revealed

that Mr. Manzano had been voluntarily returned to Mexico in 1985

and 1995. The IJ indicated he was not pleased with the delays or

the voluntary returns. However, the IJ stated that in the interest

of the minor child, he would allow a three-month continuance to

complete the labor certification process. On February 11, 1999,

the Manzanos appeared and received another continuance of 90 days

because approval of the labor certification application remained

pending.

On May 17, 1999, a hearing commenced, and counsel for the

Manzanos stated that the labor certification had been approved but

that the immigrant visa petition had not been filed. Counsel

stated that the Manzanos’ other counsel had requested additional

information and a filing fee from Mr. Manzano in order to file the

I-140 immigrant visa petition, but Mr. Manzano contended he never

received that request. Counsel reported that earlier that morning,

Mr. Manzano had gone to his other counsel’s office and signed the

necessary paperwork to file the visa petition. However, counsel

indicated the I-140 form still needed to be filed.

The IJ recessed the proceeding to allow counsel to obtain

3
documents from the Manzanos’ other counsel and to determine when

the form would be filed. Counsel provided copies of the labor

certification, which reflected it had been approved on February 1,

1999, and sought another continuance to file and obtain the I-140

petition approval. The government objected, arguing that the labor

certification had been approved on February 1, 1999, and Mr.

Manzano had taken no action to file the I-140 form during the

ensuing three-month period. After further discussion, Mr. Manzano

submitted letters addressed to him from his other counsel, dated

March 18, April 19, and May 13, 1999, requesting that Mr. Manzano

pay a filing fee and submit a signed G-28 form. Mr. Manzano was

apparently in possession of the letters but had not provided them

to his counsel prior to the hearing. The Manzanos withdrew their

request for voluntary departure.

The IJ noted that the labor certificate had been approved on

February 1, 1999, and the immigrant visa petition had not been

filed due to Mr. Manzano’s failure to provide the requested

documents and fees. The IJ also relied on the fact that Mr.

Manzano did not produce the letters from his counsel requesting the

information and fees until the IJ indicated he would deny the

motion for continuance. The IJ determined that the Manzanos had

shown no justification for the lack of action during the three-and-

one-half months since the labor certification was approved and

noted that Mr. Manzano still had not filed an immigrant visa

petition or submitted an application for an adjustment in status.

4
The IJ thus denied the motion for continuance for lack of good

cause. Because the Manzanos had abandoned their request for a

voluntary departure and had no other applications for relief

pending, the IJ ordered them removed to Mexico.

The Manzanos filed a timely notice of appeal from the IJ’s

decision to the BIA, arguing that the IJ abused his discretion in

denying their motion for continuance and ordering their removal

without allowing Mr. Manzano to complete the labor certification

process. The Manzanos further argued that Mr. Manzano’s petition

for alien labor certification had been granted after the IJ ordered

his removal and that, if the case was remanded, Mr. Manzano could

have his status adjusted to being a lawful permanent resident. The

government opposed this appeal, arguing that the IJ had properly

denied the motion for continuance because the Manzanos had not

shown good cause for their delay in processing the adjustment in

status application.

On December 9, 2002, a single BIA member affirmed the IJ’s

decision without opinion. The Manzanos did not file a petition for

review from that decision. On January 9, 2003, the Manzanos filed

a timely motion to reopen to allow Mr. Manzano to apply for an

adjustment of status and to stay removal proceedings. Mr. Manzano

argued he was prima facie eligible for an adjustment of status and

attached an I-485 form to that effect, which he had filed on

December 17, 2002. The government opposed the motion, arguing that

5
Mr. Manzano could have presented this evidence during the former

proceeding.

The BIA denied the motion to reopen, noting that Mr. Manzano’s

visa petition had not been approved prior to the IJ’s decision

because Mr. Manzano had not provided his counsel with the requested

signed G-28 form. The BIA also considered that the Manzanos had

been granted three prior continuances to pursue the labor

certification, two of which were for three-month periods. The BIA

noted the third continuance was granted after the labor

certification had been approved, and during the three subsequent

months, Mr. Manzano failed to facilitate the filing of the visa

petition by signing and submitting the G-28 form. The BIA found

that “although [Mr. Manzano] was not previously eligible to apply

for adjustment of status, the cause is due in part to his

contribution to the delay in the filing of the visa petition.” The

Manzanos timely filed this petition for review.

DISCUSSION

I. Whether this Court has jurisdiction to review motions to
reopen.

Jurisdiction under INA § 242(a)(2)(B)(ii), 8 U.S.C. §
1252(a)(2)(B)(ii).

To begin, the government argues that this Court lacks

jurisdiction to review the BIA’s denial of the motion to reopen

because, under INA § 242(a)(2)(B)(ii), now codified at 8 U.S.C. §

6
1252(a)(2)(B)(ii),2 review of discretionary decisions is

prohibited. The government contends that although the statute

allowing motions to reopen does not per se state that a decision

regarding a motion to reopen is within the sole or unreviewable

discretion of the Attorney General, 8 U.S.C. § 1229a(c)(6), such

determinations are universally recognized as inherently

discretionary. See, e.g., INS v. Doherty, 502 U.S. 314, 323-24

(1992) (noting Attorney General’s broad discretion to deny motions

to reopen). The Manzanos contend this Court retains jurisdiction

under § 1252(a) over an appeal from a final order of a denial of

the BIA of a motion to reopen.

This Court recently undertook to resolve this precise issue –

“the degree to which 8 U.S.C. § 1252(a)(2)(B)(ii) . . . precludes

judicial review of motions to reopen immigration proceedings.”

Zhao v. Gonzales, 404 F.3d 295, 301-02 (5th Cir. 2005). There, the

Court noted that it is a federal regulation, 8 C.F.R. §

2
Subsection 1252(a)(2)(B) provides, in relevant part:

Notwithstanding any other provision of law, no court
shall have jurisdiction to review– . . .

(ii) any other decision or action of the Attorney General
the authority for which is specified under this
subchapter to be in the discretion of the Attorney
General, other than the granting of relief under section
1158(a) of this title.

8 U.S.C. § 1252(a)(2)(B)(ii).

7
1003.23(b)(3),3 and not any statute, which furnishes the amount of

discretion that the Attorney General enjoys when considering

motions to reopen. Zhao, 404 F.3d at 303. The Court continued on

to discuss how due to this regulatory-provided discretion, §

1252(a)(2)(B)(ii) could mistakenly be read:

as stripping us of the authority to review any
discretionary immigration decision. That reading,
however, is incorrect, because § 1252(a)(2)(B)(ii) strips
us only of jurisdiction to review discretionary authority
specified in the statute. The statutory language is
uncharacteristically pellucid on this score; it does not
allude generally to “discretionary authority” or to
“discretionary authority exercised under this statute,”
but specifically to “authority for which is specified
under this subchapter to be in the discretion of the
Attorney General.”

Id. Thus, the Court found it had jurisdiction to review the BIA’s

denial of the petitioner’s motion to reopen because the BIA had not

exercised any statutorily provided discretion under the subchapter

of title 8 governing immigration proceedings, but instead had

exercised discretion as delineated by a regulation of the Attorney

General. Id. This is the precise case here; the BIA exercised its

regulatory-granted discretion to deny the Manzanos’ motion to

reopen their removal proceedings. Therefore, we retain the

authority to review this motion to reopen under §

3
Section 1003.23(b)(3) provides, in relevant part: “The
Immigration Judge has discretion to deny a motion to reopen even if
the moving party has established a prima facie case for relief.”
8 C.F.R. § 1003.23(b)(3).

8
1252(a)(2)(B)(ii). See id.

Jurisdiction under INA § 242(a)(2)(B)(i), 8 U.S.C. §
1252(a)(2)(B)(i).

The government also makes the argument that this Court lacks

jurisdiction pursuant to INA § 242(a)(2)(B)(i), now codified at 8

U.S.C. § 1252(a)(2)(B)(i), which states that we cannot review “any

judgment regarding the granting of relief under section 1182(h),

1182(i), 1229b, 1229c, or 1255 of this title.” 8 U.S.C. §

1252(a)(2)(B)(i). The government contends § 1252(a)(2)(B)(i) bars

our review because the BIA’s exercise of its authority to deny

reopening the Manzanos’ proceedings was a discretionary decision

that relates to INA § 245, 8 U.S.C. § 1255, which governs

adjustment of status. The government also insists Rodriguez v.

Ashcroft, 253 F.3d 797, 799-800 (5th Cir. 2001) (per curiam), where

this Court determined that it had no jurisdiction to review the

BIA’s denial of a petitioner’s motion to reopen, controls such that

we cannot review the Manzanos’ motion to reopen.

In Rodriguez, the IJ concluded that the petitioner had failed

to establish that he would suffer extreme hardship should he be

deported and thus denied his application for suspension of

deportation under INA § 244, 8 U.S.C. § 1254 (now repealed). Id.

at 798. The BIA affirmed; the petitioner did not appeal but

instead filed a motion for reconsideration in light of new

evidence, which the BIA treated as a motion to reopen. Id. at 798-

99. The BIA concluded the new evidence was insufficient to change

9
its prior decision. Id. at 799. The petitioner appealed, arguing

that the BIA abused its discretion in affirming the IJ’s conclusion

that he failed to establish that he would suffer extreme hardship

if deported. Id. We acknowledged that “Congress has expressly

precluded our consideration of the merits of [the petitioner’s]

claim that the BIA abused its discretion in denying his application

for suspension of deportation pursuant to INA § 244 for his failure

to establish that he would suffer extreme hardship if deported to

his native” country. Id. Thus, because § 309(c)(4)(E) of the

Illegal Immigration Reform and Immigrant Responsibility Act

(“IIRIRA”) prohibited review of discretionary decisions relating to

the INA § 244 element of “extreme hardship,” we held:

It is axiomatic that if we are divested of jurisdiction
to review an original determination by the [BIA] that an
alien has failed to establish that he would suffer
extreme hardship if deported, we must also be divested of
jurisdiction to review the [BIA]’s denial of a motion to
reopen on the ground that the alien has still failed to
establish such hardship.

Id. at 800; see also IIRIRA § 309(c)(4)(E) (“[T]here shall be no

appeal of any discretionary decision under section 212(c), 212(h),

212(i), 244, or 245 of the Immigration and Nationality Act.”). We

noted that “[t]o hold otherwise would create a loophole that would

thwart the clear intent of Congress that the courts not review the

discretionary decisions of the BIA.” Id. Thus, in Rodriguez, we

considered if we had jurisdiction pursuant to the IIRIRA equivalent

of § 1252(a)(2)(B)(i) and determined we did not because §

10
309(c)(4)(E) expressly precluded our review of the merits of

extreme hardship determinations under INA § 244. See id. at 800

(distinguishing Arrozal v. INS, 159 F.3d 429 (9th Cir. 1998),

because there the “merits of the denial to reopen . . . involved a

deportation order under INA § 241(a)(2)” for the petitioner

overstaying her visa, not her request for suspension of deportation

under INA § 244).

Here, unlike in Rodriguez, we would not have been precluded

from reviewing the original determination of the BIA, which

summarily affirmed the IJ’s decision in his order of removal that

the Manzanos had not shown good cause to merit another continuance,

because that judgment did not relate to any of the delineated

subsections of title 8 we cannot review under § 1252(a)(2)(B)(i).

Instead, the IJ ordered, and the BIA affirmed, the Manzanos

removable under INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).

The IJ did not make any discretionary determination based on

voluntary departure or adjustment of status pursuant to his

statutorily granted discretion under 8 U.S.C. § 1229c or § 1255.

Rather, the IJ expressly noted that the Manzanos had abandoned

their request for voluntary departure and that there was no

adjustment of status application yet submitted to the court because

there was no current, approved immigrant visa petition and no visa

petition had yet been filed. The IJ’s denial of continuance and

the BIA’s summary affirmance of that decision were indeed

11
discretionary; however, such discretion is authorized pursuant to

regulation, not to any statute outlined in § 1252(a)(2)(B)(i). See

8 C.F.R. § 1003.29 (“The Immigration Judge may grant a motion for

continuance for good cause shown.”).4 Therefore, Rodriguez does

not preclude our review here.

As for any argument that we lack jurisdiction because the

Manzanos’ motion to reopen relates to a request for adjustment of

Mr. Manzano’s status, this would clearly be the case if the BIA had

actually made a discretionary determination on the merits to deny

such adjustment of status under INA § 245, 8 U.S.C. § 1255. See

Medina-Morales v. Ashcroft, 371 F.3d 520, 526 (9th Cir. 2004) (“If

the denial of [the petitioner’s] motion to reopen was a judgment

regarding the granting of relief under . . . § 1255 . . ., then we

are without jurisdiction to review the discretionary aspects of the

BIA’s decision.”). However, the parties’ arguments on appeal here

only relate to the allegedly erroneous factual and legal findings

of the BIA in denying the Manzanos their motion to reopen their

removal proceedings, not to any alleged factual or legal errors

made by the BIA in any decision to actually deny Mr. Manzano

adjustment of status under § 1255.

Mr. Manzano’s basis for the reopening of removal proceedings

was that his visa petition had now been approved; that is, he

4
Such regulatory-based discretionary decision would also be
reviewable under the reasoning of Zhao.

12
alleged he was now prima facie eligible for an adjustment of status

pursuant to INA § 245(i), 8 U.S.C. § 1255(i). The government

opposed the reopening because “[t]he crucial information in this

case . . . is not new and could have been presented earlier.”

Under 8 C.F.R. § 1003.2 (formerly 8 C.F.R. § 3.2), the BIA could

not grant the motion to reopen unless it found that Mr. Manzano’s

new evidence was “material and was not available and could not have

been discovered or presented at the former hearing.” 8 C.F.R. §

1003.2(c)(1) (emphasis added). The record indicates that the BIA

denied the Manzanos’ motion to reopen because of Mr. Manzano’s

prior dilatory actions in not promptly filling out the requisite

paperwork and applying for his visa such that at the time the

Manzanos sought yet another continuance from the IJ and were deemed

removable under INA § 242(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i),

Mr. Manzano was still not eligible to apply for adjustment of

status under § 1255.

Apparently, the BIA determined that Mr. Manzano’s tardiness in

applying for his visa, particularly where multiple continuances had

been granted by the IJ, meant his approved visa could feasibly have

been presented at some time during the former proceeding for him to

apply for adjustment of status. Thus, we reasonably infer that the

BIA denied the motion to reopen based on the second ground

enumerated in INS v. Abudu, 485 U.S. 94 (1988): “the movant has

not introduced previously unavailable, material evidence, 8 CFR §

13
3.2.”5 Id. at 104-05. But see Mickeviciute v. INS, 327 F.3d 1159,

1163 (10th Cir. 2003) (remanding where it was not clear on what

ground of Abudu the BIA had relied to deny a motion to reopen).

Here, the BIA denied the Manzanos’ motion to reopen pursuant to 8

C.F.R. § 1003.2 and the “new evidence” ground of Abudu. See 485

U.S. at 105. The BIA thus ultimately affirmed its prior affirmance

of the Manzanos’ removability under § 1182(a)(6)(A)(i); it did not

make an adverse determination of the merits of Mr. Manzano’s

application for adjustment of status under § 1255.

As the government acknowledges, courts from other Circuits

have held that the analogous judicial review provision of IIRIRA,

§ 309(c)(4)(E), does not bar a court’s jurisdiction over a motion

to reopen where the denial is not based on the merits of any

delineated barred subsection.6 One court has held such in the

5
The other available Abudu grounds are either: that the
petitioner has not established a prima facie case for the
underlying relief sought; or without deciding either that a prima
facie case has not been met or the new evidence was previously
available, leaping ahead and “simply determin[ing] that even if
[the two threshold concerns] were met, the movant would not be
entitled to the discretionary grant of relief.” 485 U.S. at 104-
05.
6
See Stewart v. INS, 181 F.3d 587, 595-96 (4th Cir. 1999)
(finding BIA’s denial of motion to reopen was a decision that the
petitioner had not shown “exceptional circumstances” under INA §
242B(e)(2)(A), not a merits determination of adjustment of status
under INA § 245, barred from review by INA § 309(c)(4)(E));
Arrozal, 159 F.3d at 432 (finding BIA’s denial of motion to reopen
was a decision under INA § 241(a)(2) that the petitioner had
overstayed her visa, not a merits determination of whether she met
a showing of extreme hardship under INA § 244, barred from review
by INA § 309(c)(4)(E)); see also Prado v. Reno, 198 F.3d 286, 291

14
context of INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). See

Medina-Morales, 371 F.3d at 527 (finding BIA’s denial of motion to

reopen was a decision affirming removal under § 1182(a)(6)(A)(i),

not based on an adverse determination of the merits under § 1229c

or § 1255, and thus was not barred from review by §

1252(a)(2)(B)(i)). We agree with such reasoning here and hold that

review of the BIA’s denial of the Manzanos’ motion to reopen

pursuant to 8 C.F.R. § 1003.2 is not barred by § 1252(a)(2)(B)(i)

because such denial was an affirmance of their removability under

§ 1182(a)(6)(A)(i), not an adverse determination of the merits of

Mr. Manzano’s requested adjustment of status under § 1255.

II. Whether the BIA abused its discretion in denying the Manzanos’
motion to reopen.

We review the BIA’s denial of a motion to reopen proceedings

under a highly deferential abuse of discretion standard. Zhao, 404

F.3d at 303; see also Lara v. Trominski, 216 F.3d 487, 496 (5th

Cir. 2000) (“[M]otions for reopening of immigration proceedings are

disfavored . . . .”) (quoting Doherty, 502 U.S. at 323). Even

where the petitioner has made out a prima facie case of eligibility

for suspension of removal, the BIA can choose to deny the motion to

reopen if it finds “the movant has not introduced previously

(1st Cir. 1999) (“The decision as to which [the petitioner] seeks
review is not a BIA judgment on whether to adjust [her] status
[under INA § 245], which would be a ‘judgment regarding the
granting of relief under’ an enumerated section, but is rather a
decision not to reopen under 8 C.F.R. § 3.2” (now 8 C.F.R. §
1003.2) not barred from review by INA § 309(c)(4)(E)).

15
unavailable, material evidence.” Abudu, 485 U.S. at 104-05 (noting

the proper standard of review for a denial on such ground is abuse

of discretion). Such discretion is not to be disturbed “so long as

it is not capricious, racially invidious, utterly without

foundation in the evidence, or otherwise so aberrational that it is

arbitrary rather than the result of any perceptible rational

approach.” Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993)

(citation omitted).

The Manzanos argue that the BIA’s decision to deny their

motion to reopen was based on erroneous factfindings and an

improper application of the law, and thus that such denial was

unreasonable and arbitrary. The main facts the Manzanos dispute

are that Mr. Manzano did not sign the G-28 form due to delay on his

part, but rather because he did not receive the form from his

counsel, and that they only received two, not three, prior

continuances for completion of the labor certification process.

The Manzanos argue that even if such facts were correct, their case

is factually distinguishable from other cases where motions to

reopen have been denied for reasons such as repeated violations of

immigration laws and frivolous appeals, INS v. Rios-Pineda, 471

U.S. 444, 450-52 (1985); being a fugitive from justice,

Wittgenstein v. INS, 124 F.3d 1244, 1245 (10th Cir. 1997);

concealment of whereabouts, Arana v. United States Immigration &

Naturalization Serv., 673 F.2d 75, 76-77 (3d Cir. 1982); or refusal

16
to comply with a surrender notice, Matter of Barocio, 19 I & N Dec.

255, 257-58 (BIA 1985).

The government responds that the BIA did not err in stating

the facts underlying its decision. Through counsel, the government

argues, Mr. Manzano requested a total of six continuances – of

which he received five. The government maintains the IJ granted

three prior continuances for Mr. Manzano to pursue his application

for labor certification, on October 19, 1998 (to await approval of

the application), November 12, 1998 (again, to await approval of

the application), and February 11, 1999 (pending final decision on

the application). The government also contends the record supports

that the delay in filing the I-140 immigrant visa petition was due,

in part, to Mr. Manzano’s failure to respond to his counsel’s

repeated communications in that regard.

We find that the record does not support the Manzanos’

assertion that the BIA made erroneous factfindings. Mr. Manzano’s

assertion that he did not receive the G-28 form from his counsel

was belied by the fact that Mr. Manzano had three letters from such

counsel handling his immigrant visa status on his person at the May

17, 1999, hearing before the IJ. The record also does not reflect

that the Manzanos received only two prior continuances related to

the labor certification process. While the government only

contested the latter two continuances, the IJ was aware that

separate counsel was handling the labor certification process and

17
allowed the Manzanos a two-week continuance on October 19, 1998; a

three-month continuance on November 12, 1998; and a three-month

continuance on February 11, 1999, to conclude Mr. Manzano’s

certification. The Manzanos offered no, much less any reasonable,

explanation for their delays in filing the forms necessary to

obtain an adjustment in Mr. Manzano’s residency status.

Here, the BIA considered whether the Manzanos merited the

exercise of its discretion to grant reopening for adjustment of

status and noted that Mr. Manzano was partly the cause for an

approved visa petition not being presented during the former

proceeding such that he would have, at that time, been eligible for

adjustment of status. Thus, the BIA concluded that Mr. Manzano’s

dilatory actions did not merit such exercise because the evidence

was not “new” and could have been presented earlier. See Abudu,

485 U.S. at 104-05; see also 8 C.F.R. § 1003.2(c)(i). Because such

decision was neither unreasonable nor arbitrary, we conclude the

BIA did not abuse its discretion in denying the motion to reopen.

See Rios-Pineda, 471 U.S. at 450 (approving the discretion to

“legitimately avoid creating a further incentive for stalling by

refusing to reopen [removal] proceedings for those who became

eligible for such [removal] only because of the passage of time”

through repeated delays).

III. Whether the BIA violated the Manzanos’ due process rights.

The Fifth Amendment requires that aliens subject to removal

18
proceedings be provided due process: “(1) notice of the charges

against him, (2) a hearing before an executive or administrative

tribunal, and (3) a fair opportunity to be heard.” United States

v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002), cert. denied,

537 U.S. 1135 (2003) (citing Kwong Hai Chew v. Colding, 344 U.S.

590, 597-98 (1953)).

The Manzanos make no contention that they were not properly

afforded either notice, a hearing, or a fair opportunity to be

heard. The Manzanos merely make a one-sentence argument that their

constitutional due process rights have been violated due to the

legal and factual errors committed by the BIA in the denial of

their motion to reopen. Thus, what the Manzanos presuppose is that

they have a constitutionally protected right to actual

discretionary relief from removal or to be eligible for such

discretionary relief, and that because the BIA denied their motion

to reopen, it follows that their due process rights have been

violated. This is incorrect. See Jay v. Boyd, 351 U.S. 345, 353

(1956) (“[T]hough we assume a statutory right to a full hearing on

those issues, it does not follow that such a right exists on the

ultimate decision – the exercise of discretion to suspend

deportation.”); Lopez-Ortiz, 313 F.3d at 230-31 (holding in illegal

reentry criminal case that petitioner had no constitutional due

process interest in eligibility for discretionary relief from

removal under § 212(c) of the Immigration and Nationality Act); see

19
also Nguyen v. Dist. Dir., Bureau of Immigration & Customs

Enforcement, 400 F.3d 255, 259 (5th Cir. 2005) (holding same in a

collateral civil proceeding). We find no evidence in the record

that indicates the BIA violated the Manzanos’ due process rights.

CONCLUSION

Having carefully considered the record of the case and the

parties’ respective briefing, for the reasons set forth above, we

DENY the petition for review.

DENIED.

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