### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-60137 Summary Calendar

RAFAEL DIAZ-VAZQUEZ,
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. A088 064 178

Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM: * Rafael Diaz-Vazquez, a native and citizen of Mexico, petitions this court for review of the decision of the Board of Immigration Appeals (BIA) denying his 8 C.F

. R

. § 1003.2 motion to reopen his removal proceedings. In those proceedings, he conceded that he was removable under 8 U.S.C. § 1182(a)(6)(A) (i) as an alien present in the United States without being admitted or paroled, and his request for cancellation of removal under 8 U.S.C. U n i te d S ta te s C o u rt o f Ap p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 2 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publish ed and is not pr ece dent excep t unde r the lim ite d circum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 11-60137 Document: 00511683013 Page: 1 Date Filed: 12/02/2011No. 11-60137

§ 1229b(b)(1) was denied. After the BIA affirmed, he sought to reopen the proceedings in light of new evidence pertaining to his claim for § 1229b relief. We are prohibited by 8 U.S.C. § 1252(a)(2)(B) from reviewing “any judgment regarding the granting of relief under

. . . § 1229b.” § 1252(a)(2)(B)(i). We have held that “‘where a final o r d e r of removal is shielded from judicial review’ by a provision in § 1252(a)(2), ‘so, too, is [the BIA’s] refusal to reopen that order.”’ Assaad v. Ashcroft , 378 F.3d 471, 474 (5th Cir. 200 4) ( alt eration in original) (quoting Patel v. United States Attorney General , 334 F.3d 1259, 1262 (11th Cir. 2003)). Because § 1252(a)(2)(B)(i) shields Diaz-Vazquez’s underlying claim from judicial r evi e w , s ee Rueda v. Ashcroft , 380 F.3d 831, 831 (5th Cir. 2004), we lack jurisdiction to review the denial of his motion to reopen, see Assaad , 378 F.3d at 474

. Although Diaz-Vazquez argues that the Supreme Court’s recent holding in Kucana v. Holder , 130 S. Ct. 827, 831-40 (2010), supports judicial review, the Court in Kucana explained that the underlying asylum claim in that case “would itself be reviewable,” id. at 839, and the Court expressly declined to “reach the question whether review of a reope ni n g denial would be precluded if the court would la c k j u risdiction over the alien’s underlying claim for relief,” id. at 839 n.17 (citing Assaad , 378 F.3d at 473-7 5). “Absent an en banc, or intervening Supreme Court, decision, one panel of this court may not overrule a prior panel’s decision.” Foster v. Quarterman , 466 F.3d 359, 367-68 (5th Cir. 2006). Thus, the holding in Assaad remains binding precedent, and we lack jurisdiction over Diaz-Vazquez’s reopening denial. See id. Diaz-Vazquez also contends that the BIA violated his right to due process by failing to give his new evidence full weight. Although Diaz-Vazquez did not raise this claim before the BIA, we can consider it. See Roy v. Ashcroft , 389 F.3d 132, 137 (5th Cir. 2004) (“Claims of due process violations, except for procedural

e rr o r s that are correctable by the BIA, are generally not subject to th e exhaustion requirement.”); see also § 1252(a) (2)(D) (preserving jurisdiction to
2 Case: 11-60137 Document: 00511683013 Page: 2 Date Filed: 12/02/2011No. 11-60137

review constitutional claims). The BIA did not violate his due process rights because “th ere is no liberty interest at stake in a motion to reopen due to the discretionary nature of the relief sought.” Gomez-Palacios v. Holder , 560 F.3d 354, 361 n.2 (5th Cir. 2009). PETITION DISMISSED IN PART AND DENIED IN PART.

3 Case: 11-60137 Document: 00511683013 Page: 3 Date Filed: 12/02/2011