1 While Petitioner states that 8 U.S.C. § 1229a(c)(6)

provides for motions to reopen, that section of the Code

discusses motions to reconsider. Title 8 U.S.C. § 1229a(c)(7)

governs motions to reopen. The analysis, however, will be the

same, regardless of the section relied on by the parties. United States Court of Appeals

Fifth Circuit



## FILED

January 5, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 04-60976

Summary Calendar

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HERIBERTO ALTAMIRANO-LOPEZ,

Petitioner,

versus

ALBERTO R. GONZALES,

UNITED STATES ATTORNEY GENERAL,

Respondent,

Petition for Review from an Order of the

Board of Immigration Appeals

Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:

The question presented in this case is whether the Board of

Immigration Appeals ( “BIA”) erred by affirming the Immigration

Judge’s (“IJ”) denial of Heriberto Ismael Altamirano Lopez’s

“Altamirano” motion to reopen removal proceedings. 1 Because we find

that the motion was properly denied, we DENY the petition for review2 Title 8 U.S.C. § 1325(a)(1) provides that “[a]ny alien who

enters or attempts to enter the United States at any time or

place other than as designated by immigration officers... shall,

for the first commission of any such offense, be fined under

Title 18 or imprisoned not more than 6 months, or both, and, for

a subsequent commission of any such offense, be fined under Title

18, or imprisoned not more than 2 years, or both.” 8 U.S.C. §

1325(a)(1).

-2- and AFFIRM the judgement of the BIA.

I. BACKGROUND

Altamirano, a native Nica raguan, entered the United States,

without inspection, near Laredo, Texas on Mar ch 19, 2004.

Consequently, he was charged criminally with a violation of 8 U.S.C.

§ 1325(a)(1). 2 Upon entry of his guilty plea, Petitioner was

sentenced to thirty days imprisonment, and was remanded to the

custody of the Attorney General.

On April 5, 2004, while serving his sentence, Altamirano

executed a stipulated request for an order to be removed from the

United States, which was also signed by the Department of Homeland

Security. The stipulation was submitted to the Immigration Court,

which issued the removal order on April 9, 2004.

O n May 11, 2004, Petitioner filed a motion to reopen his

removal proceeding, asserting that he did not voluntarily,

knowingly, and intellige n tly execute the stipulated request for

removal. The IJ held a video-conference hearing with Altamirano and

19 other detainees who asserted similar claims. Petitioner alleges

that, at the hearing, the IJ favored questioning Altamirano himself,-3-

and refused to allow Petitioner’s attorney to que stion him.

Additionally, Altamirano claims that the IJ ended hi s testimony

before he finished speaking. Furthermore, Petitioner maintains that

the IJ took into account a sworn affidavit su bmitted by a

d eportation officer after the close of the hearing. In the

affidavit, the of ficer purported that he had a conversation with

Altamirano regarding his understanding of the stipulated waiver.

Finally, Altamirano complains that the IJ failed to create and

preserve a record of the hearing.

After the hearing, the IJ denied Altamirano’s motion, finding

that there was no evidence to support the claim that Altamirano was

not advised of his rights or had problems which would minimize his

comprehension.

On September 30, 2004, the BIA adopte d and affirmed the IJ’s

decision. The BIA acknowledged that Altamirano had been advised of

his rights in writing, in Spanish, prior to signing the stipulated

request upon which his removal order was based, and that the record

was lacki ng of any evidence that Altamirano did not voluntarily,

knowingly, and intelligently sign the request. Moreover, the BIA

noted that the stipulated request itself contains ade quate advice

and warnings in both English and Spanish.

Petitioner appe als, claiming that when it considered this

motion to reopen, the BIA erred in affirming the IJ’s conduct that

he alleges deprived him of a fair hearing.

II. DISCUSSION3 Title 8 U.S.C. § 1229a(b)(4) provides:

In proceedings under this section, under

regulations of the Attorney General– (A) the

alien shall have the privilege of being

represented, at no expense to the Government,

by counsel of the alien's choosing who is

authorized to practice in such proceedings,

(B) the alien shall have a reasonable

opportunity to examine the evidence against

the alien, to present evidence on the alien's

own behalf, and to cross-examine witnesses

presented by the Government but these rights

shall not entitle the alien to examine such

national security information as the

Government may proffer in opposition to the

alien's admission to the United States or to

an application by the alien for discretionary

relief under this chapter, and (C) a complete

record shall be kept of all testimony and

evidence produced at the proceeding.

-4- While this Court reviews a denial of a motion to reopen under

a “highly defere ntial abuse-of-discretion standard,” Zhao v.

Gonzales , 404 F.3d 295, 303 (5th Cir. 2005), we review

constitutional challenges de novo

. S oadjede v. Ashcroft

, 324 F.3d

830, 831 (5th Cir. 2003). Additionally, motions to reopen

deportation proceedings are “disfavored,” and the moving party bears

a “heavy burden.” INS v. Abudu , 485 U.S. 94, 107-08 (1988).

A ltamirano makes two main arguments: 1) the hearing on

Petitioner’s Motion to Reopen deprived him of t he due process

protections provided by 8 U.S.C. § 1229a(b)(4) 3 ; and 2) the hearing

on Petitioner’s Motion to Reopen deprived him of constitutional due

process. We will consider each claim in turn.

A. Petitioner’s Statutory Claim-5-

The Petitioner argues that the IJ violated his rights pursuant

to 8 U.S.C. § 1229a(b)(4) by not allowing his attorney to question

him, ending his testimony before he finished speaking, taking into

account a sworn affidavit submitted by a deportation officer after

the close of the hearin g, and by failing to create and preserve a

record of the hearing. Title 8 U.S.C. § 1229a(b)(4), however,

applies to removal proceedings

-– not to motions to reopen. Motions

to reopen are motions to reconvene re moval proceedings. To that

e nd, motions to reopen help to serve the due process requ irements

associated with re m oval proceedings. Like section 1229a(b)(4),

subsection 1229a(c)(7) applies to “proceedings under [§ 1229a],” or

removal proceedings. Because the hearing on the motion to reopen

was not a removal proceeding, the Petitioner is not entitled to the

rights enumerated in 8 U.S.C. § 1229a(b)(4). Moreover, neither the

Immigration and Nationality Act, nor 8 C.F.R. § 1003.23, the section

of the regulations governing motions to reopen, provides for any of

the safeguards that Petitioner claims were denied.

B. Petitioner’s Fifth Amendment Claim

Petitioner also claims that the IJ violated his rights pursuant

to the Due Process Clause by not allowing his attorney to question

him, ending his testimony before he finished speaking, taking into

account a sworn affidavit submitted by a deportation officer after

the close of the hearing, and by failing to create a nd preserve a

record of the hearing. Because we determine that there is no-6-

liberty interest at stake in a motion to reopen, Altamirano cannot

establish a due process violation. The decision to grant or deny

a motion to reopen is pure ly discretionary. 8 C.F.R. §

1003.23(b)(1)(iv). Even if a moving party has established a prima

facie case for relief, an IJ can still deny a motion to reopen. 8

C.F.R. § 1003.23(b)(3). As we stated in F inlay v. INS

, “the denial

of discretionary relief does not rise to the level of a

constitutional violation even if [the moving party] had been

e ligible for it.” F inlay

, 210 F.3d 556, 557 (5th Cir. 2000); see

also, Assaad v. Ashcroft

, 378 F.3d 471, 475 (5th Cir.

2004)(“[Petitioner’s] motion to reopen does not allege a violation

of his Fifth Amendment right to due process because ‘the failure to

receive relief that is purely discretionary in nature does not

amount to a deprivation of a liberty interest.’”) (citation

omitted). Furthermore, when considering motions to reopen, many

judges merely consult the parties’ pl eadings without even holding

a hearing. S ee, e.g.

, A hwazi v. INS

, 751 F.2d 1120, 1122-23 (9th

Cir. 1985). Hence, because there is no liberty interest at stake

in a motion to reopen, Altamirano cannot establish a due process

violation under the Fifth Amendment. Additionally, we find no other

evidence that the IJ abused his discretion in denying Petitioner’s

motion.

III. CONCLUSION-7-

For the foregoing reasons, we DENY the petition for review and

AFFIRM the judgment of the BIA affirming the Immigration Judge’s

denial of Altamirano’s motion to reopen removal proceedings

.

AFFIRMED.