IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60122

TEODULO CANTU-DELGADILLO,

Petitioner,

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:

Teodulo Cantu-Delgadillo petitions this court for review of an order from

the Board of Immigration Appeals (BIA) denying his request for administrative

closure and dismissing his appeal. We deny the petition. 

I

Cantu-Delgadillo, a native and citizen of Mexico, entered the United States

as a lawful permanent resident on or about July 5, 1978. On November 27,

1996, Cantu-Delgadillo pleaded guilty in Texas state court to possessing more

than fifty pounds and less than 2000 pounds of marijuana. He received deferred

adjudication and was placed on probation for ten years. On January 31, 1997,

the Immigration and Naturalization Service (INS) issued an Order to Show

United States Court of Appeals

Fifth Circuit

F I L E D

October 1, 2009

Charles R. Fulbruge III

Clerk
No. 08-60122

 549 U.S. 47 (2006). 1

2

Cause, charging Cantu-Delgadillo as being deportable because he was an alien

convicted of a controlled substance violation and an aggravated felony.

Cantu-Delgadillo appeared before an immigration judge (IJ) and denied

all of the factual allegations and charges of deportability. The IJ found all of the

factual allegations and charges to be true, determined that Cantu-Delgadillo was

ineligible for any type of relief, and ordered him deported. The BIA agreed with

the IJ that Cantu-Delgadillo was deportable based upon his controlled substance

violation but held that Cantu-Delgadillo was not deportable as an aggravated

felon. However, in 1998, the BIA administratively closed the proceedings

pending the publication of a new regulation by the Attorney General to

implement a procedure, known as “repapering,” for terminating deportation

proceedings for certain lawful permanent residents. 

In 2001, the BIA reinstated the proceedings against Cantu-Delgadillo at

the request of the INS. The BIA then dismissed Cantu-Delgadillo’s appeal from

the IJ’s order. In the order of dismissal, the BIA agreed with the IJ that CantuDelgadillo was deportable because of his controlled substance conviction and also

because he was an aggravated felon. The BIA further determined that CantuDelgadillo was ineligible for discretionary relief under former Immigration and

Nationality Act (INA) § 212(c). 

Cantu-Delgadillo filed a federal habeas corpus petition challenging the

BIA’s findings, and his petition was consolidated with other similar petitions.

The district court denied the consolidated petitions, and all of the petitioners

appealed. This court dismissed the claims challenging the BIA’s decision and

affirmed the dismissal of the petitioners’ habeas petitions. However, the

Supreme Court vacated this court’s opinion and remanded for further

proceedings in light of Lopez v. Gonzales. On remand, this court vacated the 1
No. 08-60122

 Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). 2

 See Nguyen v. INS, 117 F.3d 206, 207 (5th Cir. 1997). 3

3

district court’s judgment as to Cantu-Delgadillo and remanded the matter to the

BIA for further consideration in light of Lopez. 

On remand, the Department of Homeland Security (DHS) withdrew the

aggravated felon charge but maintained that Cantu-Delgadillo’s conviction of a

controlled substance offense rendered him both deportable and ineligible for

discretionary relief under former INA § 212(c). Cantu-Delgadillo requested that

his case be administratively closed pending issuance of the repapering

regulations or, in the alternative, that his case be remanded so that he could

apply for suspension of deportation under former 8 U.S.C. § 1254(a)(2) (1996).

He also argued that the timing of the proceedings and the combination of

provisions applicable to him violated his rights to equal protection and due

process. The DHS opposed Cantu-Delgadillo’s request for administrative

closure.

The BIA denied Cantu-Delgadillo’s request for administrative closure on

the ground that such a request could not be granted if opposed by either party.

The BIA determined that Cantu-Delgadillo was ineligible for suspension of

deportation and that it lacked jurisdiction to consider Cantu-Delgadillo’s facial

constitutional challenges. Accordingly, the BIA dismissed Cantu-Delgadillo’s

appeal. Cantu-Delgadillo filed a timely petition for review in this court. 

II

Under the transitional rules of the Illegal Immigration Reform and

Immigrant Responsibility Act (IIRIRA), this court lacks jurisdiction to review 2

the final order of removal against Cantu-Delgadillo. However, this court retains 3

jurisdiction to consider Cantu-Delgadillo’s arguments to the extent he raises
No. 08-60122

 See 8 U.S.C. § 1252(a)(2)(D). 4

Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). 5

 21 I. & N. Dec. 479, 480 (BIA 1996). 6

 See 8 C.F.R. § 1003.1(g) (“[D]ecisions of the Board, and decisions of the 7

Attorney General, shall be binding on all officers and employees of the

Department of Homeland Security or immigration judges in the administration

of the immigration laws of the United States.”); Galvez-Vergara v. Gonzales, 484

F.3d 798, 802 (5th Cir. 2007) (“[T]he BIA’s regulations require it to follow its own

precedent unless overruled.”). 

See Garza-Moreno v. Gonzales, 489 F.3d 239, 242 (6th Cir. 2007) (“The 8

decision to administratively close a case is, in this context, not distinguishable

from a continuance.”); Masih v. Mukasey, 536 F.3d 370, 372 n.2 (5th Cir. 2008)

(noting that there is no difference in treatment between a request for a

4

constitutional claims or questions of law. We review questions of law de novo 4

but “accord deference to the BIA’s interpretation of immigration statutes unless

the record reveals compelling evidence that the BIA’s interpretation is

incorrect.”5

III

A

Cantu-Delgadillo argues that, despite the DHS’s opposition to

administrative closure, the BIA should have administratively closed his case to

await the repapering regulations because the denial was unfair to him and

because the DHS’s opposition was unjustified and contrary to internal DHS

policy. The BIA held in In re Gutierrez-Lopez that “[a] case may not be

administratively closed if opposed by either of the parties.” Because the DHS 6

opposed the administrative closure, the BIA had no discretion to

administratively close the case. Accordingly, the BIA properly denied Cantu- 7

Delgadillo’s request for administrative closure and his alternative request for an

abeyance. 

8
No. 08-60122

continuance and a request for an abeyance). 

 See Matter of C-, 20 I. & N. Dec. 529, 532 (BIA 1992) (“[I]t is settled that 9

the immigration judge and this Board lack jurisdiction to rule upon the

constitutionality of the Act and the regulations.”). 

Malagon de Fuentes v. Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) 10

(quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). 

Id. 

11

Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006) (second alteration 12

in original) (quoting Rodriguez-Silva v. INS, 242 F.3d 243, 246, 247 (5th Cir.

2001)). 

5

B

Cantu-Delgadillo also contends that the BIA’s denial of his request for

administrative closure and the timing of his deportation proceedings each

resulted in the violation of his due process rights. To the extent that CantuDelgadillo also argues that the BIA erred by misconstruing his “as applied”

constitutional claims as facial challenges, any error was harmless because the

BIA lacked jurisdiction to consider those challenges. 

9

However, as noted, this court has jurisdiction to consider CantuDelgadillo’s constitutional issues. “To establish a substantive due process

violation, a plaintiff must first both carefully describe that right and establish

it as ‘deeply rooted in this Nation’s history and tradition.’” “If the right is so

10

deeply rooted—if it is fundamental—we subject it to more exacting standards of

review. If it is not, we review only for a rational basis.” Additionally, “[t]his 11

court has long held that ‘[a]liens enjoy some constitutional protections,

regardless of their status,’ but it has also long held that ‘this protection is limited

by Congress’s broad powers to control immigration.’”12

Cantu-Delgadillo asserts that, as a lawful permanent resident, he has a

fundamental liberty interest in being able to reside with his children and work

in the United States. We have previously rejected a similar argument in a
No. 08-60122

462 F.3d 498 (5th Cir. 2006). 13

Id. at 500. 

14

Id. 

15

Id. at 505. 

16

Id. at 505–06. 

17

Id. at 504. 

18

Id. at 505. 

19

Cf. Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006) (“This circuit 20

has repeatedly held that discretionary relief from removal, including an

application for an adjustment of status, is not a liberty or property right that

requires due process protection.”).

6

related context. In Malagon de Fuentes v. Gonzales, the petitioner, a lawful 13

permanent resident and mother of four natural-born United States citizens, was

convicted of theft of property in a welfare fraud and subsequently left the

country for a day. On return to the United States, the INS charged her as an 14

“arriving alien” inadmissible under the INA. On appeal from an order of 15

removal, the petitioner argued that her liberty interests in staying in the United

States and being with her children were violated. We affirmed, holding that 16

the petitioner had “no ‘right’ to be admitted to the United States” and, therefore,

“the government needs only a rational basis to enforce a law that bars her

admission.” Because “Congress’[s] choice to disfavor the admission of aliens 17

who have committed offenses is not irrational,” this court held that the 18

petitioner’s “predicament d[id] not constitute a deprivation of substantive due

process.” 

19

Similar to the petitioner in Malagon de Fuentes, Cantu-Delgadillo does not

have a fundamental liberty interest in being able to live and work in the United

States. Congress’s choice to disfavor the retention of aliens who have been 20
No. 08-60122

See In re Ke Sung Cho, No. A36 773 962, 2007 WL 1125778, at *1 (BIA 21

Feb. 23, 2007). (“While the Immigration Judges and this Board have

administratively closed many cases sua sponte for the purpose of repapering, we

have never done so over the objection of the DHS, nor do we have the authority

to do so in this case.”).

See Malagon de Fuentes, 462 F.3d at 507 (rejecting alien’s equal 22

protection claim, in which alien alleged she was treated differently from

similarly situated group, after determining that the alien was materially distinct

7

convicted of controlled substance violations is not irrational. Therefore, CantuDelgadillo’s substantive due process claim fails. 

C

Cantu-Delgadillo further asserts an equal protection claim. He argues

that the BIA’s refusal to close his case administratively impermissibly

differentiated him from similarly-situated lawful permanent residents who have

received the benefit of administrative closure, and that the results of his

deportation proceedings would have been different had the timing occurred

according to three alternative scenarios. 

Cantu-Delgadillo alleges that his case is the only known instance in which

the BIA refused to administratively close a case to await the repapering

regulations when unusually adverse factors did not exist. Although CantuDelgadillo cites to various cases in support of that assertion, none of the cited

cases specifically involves the BIA granting administrative closure to a lawful

permanent resident to await the repapering regulations in the face of DHS

opposition. In fact, the BIA recently noted in an unpublished decision that it has

never administratively closed a case for the purpose of repapering “over the

objection of the DHS.” Cantu-Delgadillo has failed to show that the BIA’s 21

decision regarding administrative closure in his case was different from the

BIA’s decisions in other cases involving lawful permanent residents in which the

DHS opposed administrative closure. Cantu-Delgadillo has therefore failed to

establish an equal protection claim on this basis.22
No. 08-60122

from that group).

See FCC v. Beach Communications, Inc., 508 U.S. 307, 316 (1993) (“The 23

prohibition of the Equal Protection Clause goes no further than the invidious

discrimination.” (quoting Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483

(1955))).

Beach Communications, 508 U.S. at 313. 

24

8

In support of the second ground of his equal protection claim, CantuDelgadillo asserts that, under the following alternative scenarios, he either

would not have been deportable or would have likely received discretionary

relief: (1) the deportation proceedings against him occurred before September 30,

1996; (2) the deportation proceedings against him arose prior to April 24, 1996,

but were not completed until after April 1, 1997; or (3) the deportation

proceedings against him were initiated after April 1, 1997. 

Cantu-Delgadillo does not suggest that the BIA applied these laws

unequally or in an invidiously discriminatory manner. Instead, he argues only 23

that reasonable laws that are being applied equally have an unfair result. But

“equal protection is not a license for courts to judge the wisdom, fairness, or logic

of legislative choices.” Cantu-Delgadillo’s second ground for equal protection 24

also fails. 

D

Cantu-Delgadillo argues that the BIA erred by holding that he was not

eligible for suspension of deportation under former 8 U.S.C. § 1254(a)(2). The

IIRIRA added a stop-time rule for determining an alien’s eligibility for

suspension of deportation or cancellation of removal, providing that:

any period of continuous residence or continuous physical presence

in the United States shall be deemed to end when the alien is served

a notice to appear under section 239(a) or when the alien has

committed an offense referred to in section 212(a)(2) that renders

the alien inadmissible to the United States under section 212(a)(2)
No. 08-60122

 IIRIRA, sec. 304, 110 Stat. 3009-595 (1996) (codified as amended at 8 25

U.S.C. § 1229b(d)(1)). 

Gonzalez-Torres v. INS, 213 F.3d 899, 902 (5th Cir. 2000). 26

Id. at 902-03 (internal quotation marks and citation omitted). 27

Id. at 902. 

28

Heaven v. Gonzales, 473 F.3d 167, 176 (5th Cir. 2006). 29

 22 I. & N. Dec. 1236, 1239 (BIA 2000). 30

9

or removable from the United States under section 237(a)(2) or

237(a)(4), whichever is earliest. 

25

Under the stop-time rule, aliens could no longer accrue years of continuous

physical presence while in deportation proceedings. Although IIRIRA was 26

generally not retroactively applicable, IIRIRA § 309(c)(5) explicitly made the

stop-time rule applicable “to notices to appear issued before, on, or after the date

of the enactment of this Act.” In 1997, the stop-time rule was amended for 27

purposes of clarity to replace “notices to appear” with “orders to show cause.”28

Although IIRIRA § 309(c)(5) made no mention as to its retroactive application

to criminal offenses, this court has held “that the stop-time rule should be

retroactively applied to convictions that arose before the IIRIRA was enacted.”29

The BIA has interpreted the stop-time rule in cases involving former 8

U.S.C. § 1254(a)(1) to prohibit the restarting of the clock once an alien has been

served with an Order to Show Cause. In In re Mendoza-Sandino, the BIA held

that “the continuous physical presence clock does not start anew after the service

of an Order to Show Cause so as to allow an alien to accrue the time required to

establish eligibility for suspension of deportation subsequent to the service of an

Order to Show Cause.” Relying on both the plain language of the statute and 30
No. 08-60122

Id. at 1241–42. 31

 238 F.3d 371, 376 (5th Cir. 2001) (“For purposes of review by a federal 32

appellate court, the BIA’s interpretation of the stop-time rule clearly meets

Chevron’s requirement that the agency’s construction be ‘based on a permissible

construction of the statute.’”). 

Id. 

33

Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). 34

10

the legislative history, the BIA determined that the service of an Order to Show

Cause terminates an alien’s continuous physical presence. 

31

This court in McBride v. INS concluded that the BIA’s interpretation of the

stop-time rule in Mendoza-Sandino was reasonable and therefore entitled to

deference. We stated, “[a]lthough the BIA’s reading of the statute is not the 32

only one possible or necessarily even the best possible reading, it is certainly a

credible one. That reading accounts for the language employed by Congress and

is well supported by the legislative history of the stop-time rule as well as by the

other legislation in this realm of the immigration law’s structure.”33

Although the BIA in Mendoza-Sandino and this court in McBride dealt

with 8 U.S.C. § 1254(a)(1), the sections of the IIRIRA relied upon in both of those

cases, § 304 and § 309(c)(5), are also applicable to 8 U.S.C. § 1254(a)(2).

Therefore, because there is no compelling evidence that the BIA’s interpretation

of § 1254(a)(2) and the stop-time rule were incorrect, that interpretation

warrants deference. 

34

The parties agree that the BIA erred by calculating the requisite period of

continuous physical presence under § 1254(a)(2) as commencing on the date that

Cantu-Delgadillo committed his controlled substance offense, rather than on the

date of his controlled substance conviction. However, this error is harmless

because even under the correct calculation, Cantu-Delgadillo failed to meet the

requisite period of continuous physical presence. Accordingly, the BIA did not
No. 08-60122

 8 C.F.R. § 1003.1(e)(5). 35

 8 C.F.R. § 3.1(a)(7)(iv) (2001). 36

11

err in holding that Cantu-Delgadillo was not eligible for suspension of

deportation under former 8 U.S.C. § 1254(a)(2).

E

Cantu-Delgadillo contends that the BIA erred by permitting a single board

member to decide his case rather than a three-member panel. Under 8

C.F.R.§ 1003.3(f), “[a]ll cases and motions pending on September 25, 2002, shall

be adjudicated according to the rules in effect on or after that date . . . .” Under

the current regulations, if a single board member determines that an appeal is

not appropriate for affirmance without opinion, that member “shall issue a brief

order affirming, modifying, or remanding the decision under review, unless the

Board member designates the case for decision by a three-member panel.”35

However, prior to 2002, the regulations required that an appeal for which

affirmance without opinion was not appropriate be assigned to a three-member

panel for review and decision. Cantu-Delgadillo asserts that his case was not 36

“pending” on September 25, 2002, because, on that date, he was challenging the

BIA’s prior decision in his case in federal district court. He argues that

§ 1003.3(f) is therefore not applicable to his case and that his appeal should have

been sent to a three-member panel for review.

This court remanded the case to the BIA for determination on February

13, 2007. Therefore, regardless of whether Cantu-Delgadillo’s appeal was

actually “pending” before the BIA on September 25, 2002, the case was pending

before the BIA “on or after” that date and § 1003.3(f) is applicable. 

Cantu-Delgadillo also argues that his appeal should have been heard by

a three-judge panel because the case met the requirements of 8 C.F.R.
No. 08-60122

See 8 C.F.R. § 1003.1(e)(6)(ii) (stating that a case may be assigned for 37

review by a three-member panel if there is a “need to establish a precedent

construing the meaning of laws, regulations, or procedures”).

See 8 C.F.R. § 1003.1(e)(5) (“If the Board member to whom an appeal is 38

assigned determines, upon consideration of the merits, that the decision is not

appropriate for affirmance without opinion, the Board member shall issue a brief

order affirming, modifying, or remanding the decision under review, unless the

Board member designates the case for decision by a three-member panel under

paragraph (e)(6) of this section under the standards of the case management

plan.”). 

See 8 C.F.R. § 1003.1(e)(6) (“Cases may only be assigned for review by 39

a three-member panel if the case presents one of these circumstances . . . .”

(emphasis added)). 

See 8 U.S.C. § 1252(a)(2)(C) (“[N]o court shall have jurisdiction to review 40

any final order of removal against an alien who is removable by reason of having

committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii),

(B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of

this title for which both predicate offenses are, without regard to their date of

commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.”).

12

§ 1003.1(e)(6)(ii). But 8 C.F.R. § 1003.1(e)(5) provides that a single-board 37

member has the discretion to decide whether the case merits review by a threemember panel. Assignment to a three-member board is not mandatory even 38

if it meets the criteria under 8 C.F.R. § 1003.1(e)(6). Because the decision to 39

designate the case to be heard by a three-member panel is discretionary, this

court lacks jurisdiction to review the BIA’s decision. Accordingly, the BIA did 40

not err in following its own regulations by permitting a single board member to

decide the case. 

* * *

Cantu-Delgadillo’s petition for review is DENIED.