* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

May 12, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-41624

Summary Calendar

ISMAEL GALVAN,

Petitioner-Appellant,

versus

A. G. WINFREY, Interim Field Office Director, DHS HLG/DO;

UNITED STATES OF AMERICA,

Respondents-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:03-CV-213

--------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Ismael Galvan challenges the district

court’s denial of his petition for habeas corpus, contending that 

he is entitled to a discretionary waiver of admissibility under 

former Immigration and Nationality Act § 212(c). The parties

dispute whether we should treat this case as an appeal of the

denial of a habeas corpus petition under 28 U.S.C. § 2241 or a

petition for review under the REAL ID Act of 2005, Pub. L. No.

109-13, 119 Stat. 231 (May 11, 2005). Although Congress was
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silent as to the effect of the Real ID Act on § 2241 cases

pending on appeal, we have held that habeas petitions on appeal

on May 11, 2005, the REAL ID Act’s effective date, “are properly

converted into petitions for review.” Rosales v. Bureau of

Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir.

2005), cert. denied, 126 S. Ct. 1055 (2006). Accordingly, we

will treat Galvan’s appeal as a petition for review. 

The parties also dispute whether we can consider only the

Board of Immigration Appeals (BIA) decision or the decisions of

the immigration judge (IJ) and BIA. This court generally has the

authority to review only decisions of the BIA, not decisions of

an IJ. See Alarcon-Chavez v. Gonzales, 403 F.3d 343, 345 (5th

Cir. 2005). However, this court may review an IJ’s decision if

that decision had some impact on the BIA’s decision. Mikhael v.

INS, 115 F.3d 299, 302 (5th Cir. 1997). 

In dismissing Galvan’s appeal and affirming the IJ’s

decision, the BIA expressly, though succinctly, noted that the IJ

had taken into account the positive and negative equities and

made no clear error in his various factual conclusions. Because

the BIA relied, at least in part, on the IJ’s decision, we will

consider both the IJ’s and the BIA’s decisions. Mikhael, 115

F.3d at 302. 

Galvan raises four claims: (1) the BIA failed to issue a

sufficiently reasoned decision that addressed the legal and

factual issues which he raised; (2) the BIA’s decision violated
No. 04-41624

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its regulations and did not satisfy Galvan’s due process rights;

(3) Galvan was substantially prejudiced by the BIA’s failures;

and (4) his appeal should have been referred to a three-member

panel. 

Alleged Inadequacy of the BIA’s Decision

Galvan alleges that the BIA failed to issue a sufficiently

reasoned decision that addressed the legal and factual issues

which he raised. In part, he bases this claim on assertions that

this court can consider only the BIA’s decision and that the

BIA’s decision standing alone fails to provide an adequate basis

for this court to review the BIA’s legal and factual conclusions. 

As noted above, this court can consider the decisions of the

IJ and BIA in this petition for review. See Mikhael, 115 F.3d at

302. The BIA’s decision, while succinct, agreed with the IJ’s

extensive factual analysis and legal conclusions. The IJ

considered Galvan’s factual and legal arguments and, in

compliance with BIA precedent, weighed the positive and negative

equities. Because there is substantial evidence in the record to

support the IJ’s and BIA’s conclusions, Galvan’s contention that

the BIA’s decision was inadequate is unavailing. See Chun v.

INS, 40 F.3d 76, 78 (5th Cir. 1994). 

Alleged Violations of BIA Regulations and Galvan’s Due

Process Rights

Galvan contends that the BIA abused its discretion when it

considered non-record factors, its workload and litigation
No. 04-41624

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priorities. This court has rejected similar arguments. See

Soadjede v. Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003).

Galvan also asserts that the BIA failed to give meaningful

consideration to the substantial evidence in favor of his claim

and violated Galvan’s due process rights by failing to engage in

de novo review of the IJ’s legal conclusions and application of

pertinent standards. The BIA did not violate Galvan’s due

process rights by relying on the reasons set forth by the IJ. 

Soadjede, 324 F.3d at 832-33. 

As noted above, the IJ considered the positive and negative

equities as required by BIA precedent, including Galvan’s claim

of rehabilitation and the evidence opposed to this claim. After

doing so, the IJ found that Galvan failed to carry his burden of

showing he was entitled to § 212(c) relief. Because there is no

evidence in the record which compels a contrary conclusion, the

BIA did not abuse its discretion when it affirmed the IJ’s

decision. Chun, 40 F.3d at 78. 

Galvan also contends that the BIA abused its discretion by

denying his unopposed motion to remand. The BIA routinely treats

motions to remand as motions to reopen. See Ogbemudia v. INS,

988 F.2d 595, 599-600 (5th Cir. 1993); Matter of Coelho, 20 

I. & N. Dec. 464, 471 (BIA 1992). The BIA applies the same

standards to a motion to remand as it does to a motion to reopen,

and this court reviews both motions for an abuse of discretion. 

Ogbemudia, 988 F.2d at 600. 
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The BIA must deny a motion to reopen if it finds that the

movant has not introduced previously unavailable, material

evidence or if the movant has not established a prima facie case

for the underlying substantive relief sought. Ogbemudia, 988

F.2d at 599-600. Further, even if a movant establishes those

threshold requirements, the BIA may deny a motion to reopen if it

determines that “the movant would not be entitled to the

discretionary grant of relief.” Id. at 600 (internal quotation

marks and citation omitted). 

The BIA did not abuse its discretion in denying Galvan’s

motion to remand. The IJ stated that his decision would not be

affected even if Galvan’s 1990 conviction had been lowered to a

misdemeanor. Further, the IJ based his decision that Galvan

failed to establish his rehabilitation, in part, on Galvan’s use

of cocaine in relation to the 2001 conviction. Thus, Galvan was

not entitled to a remand based on his “new” evidence related to

his 1990 and 2001 convictions, and the BIA did not err when it

failed to order a remand or to address the motion to remand. Roy

v. Ashcroft, 389 F.3d 132, 139-40 (5th Cir. 2004); Ogbemudia, 988

F.2d at 599-600. 

Alleged Need for Referral to a Three-Member Panel

Galvan contends that, under 8 C.F.R. § 1003.1(e)(6)(iii),

(v), (vi), a three-member panel was required to hear his appeal

to the BIA. The immigration regulations state that, “[u]nless a

case meets the standards for assignment to a three-member panel
No. 04-41624

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under paragraph (e)(6) of this section, all cases shall be

assigned to a single Board member for disposition.” 8 C.F.R. 

§ 1003.1(e). A three-member panel is appropriate only if there

is a need “to review a decision by an immigration judge . . .

that is not in conformity with the law or with applicable

precedents,” “to review a clearly erroneous factual determination

by an immigration judge,” or “to reverse the decision of an

immigration judge or the Service, other than a reversal under 

§ 1003.1(e)(5).” § 1003.1(e)(6)(iii), (v), (vi). 

Galvan has not established that the IJ’s and BIA’s decisions

did not comply with the law or BIA precedent. Similarly, he has

not proven that the BIA’s or IJ’s decisions were based on clearly

erroneous factual findings. Finally, Galvan has not established

any other reasons that would require the BIA to reverse the IJ’s

decision. Accordingly, the BIA did not abuse its discretion when

it failed to refer Galvan’s appeal to a three-member panel. 

Alleged Prejudice

Galvan argues that he was substantially prejudiced by the

BIA’s failure to comply with its regulations and issue a

sufficiently reasoned decision that addressed his factual and

legal issues. The decisions issued by the IJ and BIA

sufficiently evaluated Galvan’s factual and legal claims, and

Galvan failed to establish that the BIA did not comply with its

regulations. Because the IJ’s and BIA’s decisions complied with
No. 04-41624

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BIA regulations, due process requirements, and this court’s

precedent, Galvan’s claim of prejudice is unavailing.

Accordingly, Galvan’s petition for review is DENIED.