* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 3, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-61092

Summary Calendar

ELIZABETH CROSBY-VARGAS,

Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

Respondent.

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

Petition for Review of an Order of the

Board of Immigration Appeals

(BIA No. A42-340-269)

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

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM: *

Petitioner Elizabeth Crosby-Vargas (Crosby), a native and

citizen of Mexico, seeks our review of the Board of Immigration

Appeals’s (BIA) affirmance of the Immigration Judge’s (IJ) denial

of her application for discretionary waiver of removal under former

§ 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C.

§ 1182(c)(1994). She argues that the IJ denied her due process at

the hearing on her application by assuming the role of prosecutor

in cross-examining her. She further asserts that she was denied2

due process in her appeal to the BIA by the BIA’s failure to make

required findings of fact and conclusions of law when it affirmed

the IJ’s decision.

As the partie s agree, the transitional rules of the Illegal

Immigration Reform and Immigration Responsibility Act (IIRIRA)

apply here because Crosby’s removal proceeding b egan before

April 1, 1997, and concluded more than 30 days after September 30,

1996. S ee Goonsuwan v. Ashcroft

, 252 F .3d 383, 386 (5th Cir.

2001) ; IIRIRA § 309(a), (c)(1). Section 106(c) (codified at 8

U.S.C. § 1105(a)(c)(1994)) of the INA, which the transitional rules

incorporate, requir es an alien to exhaust his administrative

remedies; and his failure to do so serves as a jurisdictional bar

to our consideration of the issue. W ang v. Ashcroft

, 260 F.3d 448,

452-53 (5th Cir. 2001); Goonsuwan

, 252 F.3d at 386-87. Because in

her BIA appeal Crosby failed to raise her due process challenge to

the IJ’s cross-examination, we lack jurisdiction to consider this

issue. S ee Anwar v. INS

, 116 F .3d 140, 144 n.4 (5th Cir. 1997);

cf. Calderon-Ontiveros v. INS

, 809 F.2d 1050, 1 051-52 (5th Cir.

1986).

As the Attorney General points out, there are also

jurisdictional obstacles to our review of Crosby’s claim that she

was denied due process in her BIA appeal. Under L erma de Garcia v.

INS

, 141 F.3d 215, 216-17 (5th Cir. 1998), we lack jurisdiction

over Crosby’s claim. In light of the Supreme Court’s statement in

Calcano-Martinez v. INS

, 533 U.S. 348, 349 n.2 (2001), that3

constitutional concerns must be considered in determining the scope

of IIRIRA’s jurisdiction-stripping provisions, however, we recently

left open the question whether o ur jurisdiction would extend to

substantial constitutional claims. Flores-Garza v. INS , 328 F.3d

797, 803 n.5 (5th Cir. 2003). Nevertheless, because Crosby cannot

prevail re gardless of whether we have jurisdiction, we do not

address this question. S ee United States v. Alvarez

, 210 F.3d 309,

310 (5th Cir. 2000); United States v. Weathersby , 958 F.2d 65, 66

(5th Cir. 1992).

Contrary to Crosby’s contention, the regulation used by the

BIA to affirm the IJ’s decision, 8 C.F.R. § 3.1(e)(4), now found at

8 C.F.R. § 1003.1(e)(4), does not require —— indeed, specifically

prohibits

—— the BIA from including any further explanation or

reasoning when affirming the deci sion of the IJ without opinion.

To the extent that Crosby is contending that due process required

the BIA to make specific findings of fact and conclusions of law in

affirming the IJ’s decision, her argument is foreclosed by our

decision in Soadjede v. Ashcroft

, 324 F.3d 830, 832-33 (5th Cir.

2003).

For the foregoing reasons, Crosby’s petitio n for review is

DISMISSED IN PART FOR LACK OF JURISDICTION AND DENIED IN PART.4