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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60370

Summary Calendar

ALI NAWAZ

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. A95 319 982

Before HIGGINBOTHAM, BARKSDALE, AND ELROD, Circuit Judges.

PER CURIAM:*

Ali Nawaz, a citizen and native of Pakistan, petitions this court for review

of the Board of Immigration Appeals’ (BIA) order denying his motion for

reconsideration of the denial of his motion to reopen removal proceedings. He

has moved for a stay of removal during the pendency of his petition for review.

Nawaz concedes that his motion to reopen was untimely but argues that

the BIA abused its discretion by denying his motion for reconsideration because

the BIA should have reopened his removal proceedings pursuant to its authority

United States Court of Appeals

Fifth Circuit

F I L E D

March 18, 2009

Charles R. Fulbruge III

Clerk
No. 08-60370

2

to reopen removal proceedings sua sponte. He maintains that the BIA abused

its discretion because it did not address all of the factors he raised showing that

he met his burden of demonstrating exceptional circumstances and because it

did not provide a reasoned explanation to support its ruling. He further

contends that the BIA erroneously concluded that he was not eligible to adjust

his status because he had effectively withdrawn his request for voluntary

departure prior to the expiration of the time allowed for voluntary departure.

In Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004),

this court held that it did not have jurisdiction to review a decision not to reopen

removal proceedings sua sponte because there is no meaningful standard against

which to judge the exercise of discretion in making such a decision. Nawaz

acknowledges the ruling in Enriquez-Alvarado, but asserts that EnriquezAlvarado was wrongly decided. Regardless of the merits of Nawaz’s challenge

to the ruling in Enriquez-Alvarado, we may not overturn the ruling of the panel

in that case because there has not been an intervening change in law. See

Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

Accordingly, we do not have jurisdiction to review the BIA’s decision not to

reopen Nawaz’s removal proceedings sua sponte. See Enriquez-Alvarado, 371

F.3d at 249-50. As we do not have jurisdiction to review the BIA’s decision not

to reopen Nawaz’s removal proceedings sua sponte, we do not reach the BIA’s

alternative determination that Nawaz was ineligible for adjustment of status

consideration for a period of 10 years because he had not departed the United

States in the time allowed.

In addition to his non-constitutional challenges to the BIA’s denial of his

motion for reconsideration, Nawaz argues that the BIA violated his due process

rights in its denial of his motion for reconsideration. Nawaz asserts that the BIA

denied his due process rights to a full and fair hearing and a reasonable

opportunity to present evidence by not considering evidence and arguments he

presented.
No. 08-60370

3

While we do not have jurisdiction to consider Nawaz’s non-constitutional

challenges to the BIA’s refusal to reopen his removal proceedings sua sponte, we

retain jurisdiction to consider constitutional challenges that were raised before

the BIA. See 8 U.S.C. § 1252(a)(2)(D); Mai v. Gonzales, 473 F.3d 162, 164 (5th

Cir. 2006). We review constitutional claims de novo. Heaven v. Gonzales, 473

F.3d 167, 171 (5th Cir. 2006).

Although Nawaz styles his challenge as a due process claim, his argument

is that the BIA did not sufficiently consider his evidence and arguments because

it did not sufficiently discuss the evidence and arguments in its ruling. These

alleged deficiencies in the BIA’s ruling do not rise to the level of a due process

violation. See Toscano-Gil v. Trominski, 210 F.3d 470, 474 (5th Cir. 2000).

Furthermore, the reasoning provided in the BIA’s ruling was sufficient as it

demonstrated that it had considered the issues raised and had “heard and

thought and not merely reacted.” Yahkpua v. INS, 770 F.2d 1317, 1321 (5th Cir.

1985) (quoting Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir. 1984)).

PETITION FOR REVIEW DENIED; MOTION FOR STAY OF REMOVAL

DENIED.