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this opinion should not be published and is not precedent except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

June 21, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-60317

Summary Calendar

 

SANDRA MARICELA HERNANDEZ DE CERVANTES,

also known as Sandra Cervantes,

Petitioner,

versus

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

Respondent.

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

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A75-948-829 

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

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Sandra Maricela Hernandez De Cervantes (Cervantes) appeals

from the Board of Immigration Appeals (BIA) denial of her

applications for adjustment of status and waiver of

inadmissibility. 8 U.S.C. §§ 1255(a), 1182(h). Cervantes argues

that her procedural due process rights were violated when the BIA

overruled the determination of the immigration judge (IJ) with

respect to her applications.
No. 04-60317

-2-

Section 242 of the Immigration and Naturalization Act (INA),

codified at 8 U.S.C. § 1252(a)(2000), strips this court of

jurisdiction to review the BIA’s denial of both Cervantes’s

applications for adjustment of status under 8 U.S.C. § 1255(a)

and waiver of inadmissibility under 8 U.S.C. § 1182(h), because

these statutes implicate purely discretionary determination of

the Attorney General. See 8 U.S.C. § 1252(a)(2)(B)(ii); Zhao v.

Gonzales, 404 F.3d 295, 303 (5th Cir. 2005); Assaad v. Ashcroft,

378 F.3d 471, 475 (5th Cir. 2004). Nevertheless, this court

retains jurisdiction only to consider whether Cervantes has

established a substantial constitutional due process violation. 

See Balogun v. Ashcroft, 270 F.3d 274, 277-78 & 278 n.11 (5th

Cir. 2001). To prevail upon a due process challenge in a

petition for review, the alien must establish substantial

prejudice. DeZavala v. Ashcroft, 385 F.3d 879, 884 (5th Cir.

2004). 

Cervantes argues that she was denied the procedural due

process guarantees in two ways. First, she argues that the BIA

lacked the authority to issue an independent, adverse, and

discretionary decision to that of the IJ’s ruling. Cervantes’s

argument is meritless because the BIA is authorized to conduct a

de novo review of the IJ’s order. See Castillo-Rodriguez v. INS,

929 F.2d 181, 183 (5th Cir. 1991). 

Second, she argues that the BIA rendered an adverse,

independent, and discretionary ruling to that of the IJ based
No. 04-60317

-3-

upon her veracity which was not at issue at her immigration

hearing. She asserts that she was not given an opportunity to

respond to the veracity issue.

Cervantes’s argument fails because the determinations of

adjustment of status and waiver of inadmissibility are purely

discretionary, and therefore the denial of such relief does not

constitute the deprivation of a liberty interest. See Assaad,

378 F.3d at 475. Further, the record reflects that issues

concerning Cervantes’s veracity, such as conflicting information

that she gave in police reports, were considered by the IJ. 

Finally, Cervantes makes no showing of substantial prejudice in

the BIA’s review process. See DeZavala, 385 F.3d at 883. 

Accordingly, Cervantes’s petition for review is DENIED.