Rafael Diaz-Vazquez v. Eric Holder, Jr. ( 2011 )

Case: 11-60137 Document: 00511683013 Page: 1 Date Filed: 12/02/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2011
No. 11-60137
Summary Calendar Lyle W. Cayce
Clerk
RAFAEL DIAZ-VAZQUEZ,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 064 178
Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Rafael Diaz-Vazquez, a native and citizen of Mexico, petitions this court
for review of the decision of the Board of Immigration Appeals (BIA) denying his
8 C.F.R. § 1003.2 motion to reopen his removal proceedings. In those
proceedings, he conceded that he was removable under 8 U.S.C.
§ 1182(a)(6)(A)(i) as an alien present in the United States without being
admitted or paroled, and his request for cancellation of removal under 8 U.S.C.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-60137
§ 1229b(b)(1) was denied. After the BIA affirmed, he sought to reopen the
proceedings in light of new evidence pertaining to his claim for § 1229b relief.
We are prohibited by 8 U.S.C. § 1252(a)(2)(B) from reviewing “any
judgment regarding the granting of relief under . . . § 1229b.” § 1252(a)(2)(B)(i).
We have held that “‘where a final order of removal is shielded from judicial
review’ by a provision in § 1252(a)(2), ‘so, too, is [the BIA’s] refusal to reopen that
order.”’ Assaad v. Ashcroft, 378 F.3d 471, 474 (5th Cir. 2004) (alteration in
original) (quoting Patel v. United States Attorney General, 334 F.3d 1259, 1262
(11th Cir. 2003)). Because § 1252(a)(2)(B)(i) shields Diaz-Vazquez’s underlying
claim from judicial review, see Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir.
2004), we lack jurisdiction to review the denial of his motion to reopen, see
Assaad, 378 F.3d at 474.
Although Diaz-Vazquez argues that the Supreme Court’s recent holding
in Kucana v. Holder, 130 S. Ct. 827, 831-40 (2010), supports judicial review, the
Court in Kucana explained that the underlying asylum claim in that case “would
itself be reviewable,” id. at 839, and the Court expressly declined to “reach the
question whether review of a reopening denial would be precluded if the court
would lack jurisdiction over the alien’s underlying claim for relief,” id. at 839
n.17 (citing Assaad, 378 F.3d at 473-75). “Absent an en banc, or intervening
Supreme Court, decision, one panel of this court may not overrule a prior panel’s
decision.” Foster v. Quarterman, 466 F.3d 359, 367-68 (5th Cir. 2006). Thus, the
holding in Assaad remains binding precedent, and we lack jurisdiction over
Diaz-Vazquez’s reopening denial. See id.Diaz-Vazquez also contends that the BIA violated his right to due process
by failing to give his new evidence full weight. Although Diaz-Vazquez did not
raise this claim before the BIA, we can consider it. See Roy v. Ashcroft, 389 F.3d
132, 137 (5th Cir. 2004) (“Claims of due process violations, except for procedural
errors that are correctable by the BIA, are generally not subject to the
exhaustion requirement.”); see also § 1252(a)(2)(D) (preserving jurisdiction to
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No. 11-60137
review constitutional claims). The BIA did not violate his due process rights
because “there is no liberty interest at stake in a motion to reopen due to the
discretionary nature of the relief sought.” Gomez-Palacios v. Holder, 560 F.3d
354, 361 n.2 (5th Cir. 2009).
PETITION DISMISSED IN PART AND DENIED IN PART.
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