* 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this opinion should not be published and is not precedent except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

November 28, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-60626

Summary Calendar

JOSE EZEQUIEL MARTINEZ-MARTINEZ,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

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

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A41 272 217 

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

Before KING, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Jose Ezequiel Martinez-Martinez (Martinez), a native and

citizen of Mexico, filed a 28 U.S.C. § 2241 petition in the

district court challenging the Board of Immigration Appeals’ (BIA)

decision affirming the Immigration Judge’s (IJ) denial of relief

under former § 212(c) of the Immigration and Nationality Act and

the BIA’s decision denying Martinez’s motion to reopen based on

ineffective assistance of counsel. The district court transferred

the case to this Court pursuant to the REAL ID Act of 2005 and we

now consider the matter as a petition for review of the BIA’s
No. 05-60626

-2-

decisions. See Rosales v. Bureau of Immigration and Customs

Enforcement, 426 F.3d 733, 736 (5th Cir. 2005), cert. denied, 126

S. Ct. 1055, 163 L. Ed. 2d 882 (2006).

The REAL ID Act generally precludes judicial review of

discretionary decisions of the Attorney General, including the

grant or denial of a waiver of removability. 8 U.S.C. 

§ 1252(a)(2)(B)(ii); see Gutierrez-Morales v. Homan, 461 F.3d 605,

609 (5th Cir. 2006). The Act also precludes judicial review of any

removal order based on, inter alia, commission of an aggravated

felony. § 1252(a)(2)(c); see Hernandez-Castillo v. Moore, 436 F.3d

516, 519 (5th Cir. 2006), petition for cert. filed (Mar. 28, 2006)

(No. 05-1251). However, none of these provisions “shall be

construed as precluding review of constitutional claims or

questions of law raised upon a petition for review . . . .” 

§ 1252(a)(2)(D).

Martinez contends that the BIA erred when it affirmed the IJ’s

denial of his application for § 212(c) relief. Although Martinez

phrases his arguments in legal terms, he is, in essence, seeking

review of the IJ’s discretionary denial of § 212(c) relief. See

Delgado-Reynua v. Gonzales, 450 F.3d 596, 599-600 (5th Cir. 2006).

An IJ’s discretionary denial of relief under § 212(c) does not

present a question of law or a constitutional claim over which this

court has jurisdiction. Marquez-Marquez v. Gonzales, 455 F.3d 548,

561 (5th Cir. 2006). Therefore, we lack jurisdiction to review
No. 05-60626

-3-

Martinez’s challenge to the BIA’s decision affirming the IJ’s

denial of his application for § 212(c) relief.

Martinez also contends that the BIA erred when it denied his

motion to reopen based on ineffective assistance of counsel.

Martinez argues that he had constitutionally protected liberty and

property interests in his application for § 212(c) relief and,

thus, he was entitled to due process in the adjudication of that

application. 

We have not conclusively determined whether an alien has a

constitutional right to effective counsel in removal proceedings.

See Gutierrez-Morales, 461 F.3d at 609. Nevertheless, we have

“stated several times in dicta . . . that an alien’s right to due

process is violated when the representation afforded [him] was so

deficient as to impinge upon the fundamental fairness of the

hearing, and, as a result, the alien suffered substantial

prejudice.” Id. (internal quotation marks and citations omitted).

Even if aliens have a constitutional right to effective

counsel in certain circumstances, Martinez does not allege a

violation of due process. Martinez’s ineffective assistance claim

relates to the denial of his application for § 212(c) relief.

Because § 212(c) relief is available within the broad discretion of

the Attorney General, it is not a right protected by due process.

United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002).

His counsel’s alleged deficiencies merely restricted Martinez’s

chance of obtaining discretionary relief under § 212(c) and,
No. 05-60626

-4-

therefore, Martinez has not alleged a violation of due process.

See Assaad v. Ashcroft, 378 F.3d 471, 476 (5th Cir. 2004); LopezOrtiz, 313 F.3d at 231. Because Martinez does not present a

constitutional claim, we lack jurisdiction to review his challenge

to the BIA’s denial of his motion to reopen. 

Accordingly, the petition for review is dismissed for lack of

jurisdiction.

PETITION DISMISSED.