IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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.

United States Court of Appeals

Fifth Circuit

F I L E D

December 2, 2011

Lyle W. Cayce

Clerk

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.

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§ 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 order 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. 2004) (alteration 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 review, see 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 reopening denial would be precluded if the court

would lack jurisdiction over the alien’s underlying claim for relief,” id. at 839

n.17 (citing Assaad, 378 F.3d at 473-75). “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

errors that are correctable by the BIA, are generally not subject to the

exhaustion requirement.”); see also § 1252(a)(2)(D) (preserving jurisdiction to

2

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review constitutional claims). The BIA did not violate his due process rights

because “there 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.

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