Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney *

General Peter D. Keisler is substituted for former Attorney General

Alberto R. Gonzales as respondent.

 Of the Ninth Circuit, sitting by designation. **

United States Court of Appeals

For the First Circuit

No. 06-1849

ABU HASAN MAHMUD PARVEZ,

Petitioner,

v.

PETER D. KEISLER, Acting Attorney General *

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lipez, Circuit Judge

Tashima, Senior Circuit Judge, **

and Howard, Circuit Judge.

William E. Graves Jr. for petitioner.

Peter D. Keisler, Assistant Attorney General, Nancy E.

Friedman, Office of Immigration Litigation Attorney, and Richard M.

Evans, Office of Immigration Litigation Assistant Director, for

respondent.

November 2, 2007
 Beginning in November 2002, the Attorney General instituted 1

the National Security Entry-Exit Registration System (NSEERS)

program, which required men from certain countries to report in

person to the former Immigration and Naturalization Service (INS)

to register their presence in the United States. 67 Fed. Reg.

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LIPEZ, Circuit Judge. The petitioner, Abu Hasan Mahmud

Parvez, a native and citizen of Bangladesh, seeks review of a

decision by the Board of Immigration Appeals ("BIA") denying his

motion to reopen proceedings to enable him to renew his request for

cancellation of removal and to apply for asylum and withholding of

removal. Parvez also claims that the BIA deprived him of his right

to due process by failing to adjudicate his motion for a stay of

voluntary departure. We deny his petition for review.

I.

Parvez entered the United States in 1991 on a diplomatic

visa, as an assistant to his uncle, a Bangladeshi diplomat. Soon

afterward, he applied for and was granted student status. He

attended college for one year, after which he remained in the

United States despite the expiration of his visa. In 1998, Parvez

married a fellow Bangladeshi who was in the process of applying for

permanent legal residence. Together they had a son, who is a U.S.

citizen.

In 2003, Parvez was placed in removal proceedings by the

Department of Homeland Security (“DHS”) after he voluntarily

reported under a registration program applicable to Bangladeshi

residents. Through counsel, Parvez conceded removability, but 1
70526 (Nov. 22, 2002). Initially, this list of countries did not

include Bangladesh. In January 2003, the Attorney General added

Bangladesh to the NSEERS program. As a result, men from Bangladesh

who entered the United States during a certain time frame were

required to register with the INS. 68 Fed. Reg. 2363 (Jan. 16,

2003). 

 In considering what constitutes “exceptional and extremely 2

undue hardship,” the relevant inquiry here is the experience of

Parvez’s son should Parvez be removed rather than the experience of

Parvez himself. Section 240A(b), codified at 8 U.S.C. § 1229b(b),

provides for cancellation of removal if the alien has been

physically present in the United States for a continuous period of

not less than ten years, has been a person of good moral character,

has not been convicted of various statutory offenses, and

“establishes that removal would result in exceptional and extremely

unusual hardship to the alien’s spouse, parent, or child, who is a

citizen of the United States or an alien lawfully admitted for

permanent residence.” 

 The IJ found: "Certainly, Bangladesh is a violent country 3

plagued by cyclones and floods, and politically motivated violence

since the 2001 election, but the respondent has significant family

ties in that country who do not appear to have ever suffered any

deprivation from any of these conditions." 

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sought cancellation of removal under § 240A(b) of the Immigration

and Nationality Act on the ground that removal would constitute an

extremely unusual hardship for his young son. In an oral ruling 2

after a hearing, the Immigration Judge (“IJ”) determined that

Parvez’s removal would not expose his son to exceptional and

extremely unusual harm, denied his application for relief, and

granted him voluntary departure. The IJ based her decision in part

on evidence that Parvez had family, including his politically

influential uncle, in Bangladesh, and a finding that there was no

evidence that Parvez’s family members had suffered persecution.3
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Parvez filed a timely notice of appeal with the BIA,

which affirmed the IJ’s decision and extended Parvez’s period of

voluntary departure to March 11, 2006. On March 9, 2006, Parvez

filed a motion to reopen with the BIA on the grounds that he had

new evidence regarding his uncle's death, the hardship his son

would experience if Parvez were removed, changed country conditions

in Bangladesh, and additional familial changes. On these grounds,

he argued, he should be permitted to file with the IJ an

application for asylum and withholding of removal, and his request

for cancellation of removal should be reconsidered. Parvez also

moved for a stay of voluntary departure.

The evidence Parvez asked the BIA to consider included

proof that his uncle had passed away in December 2004, that his

mother had been forcibly retired (on account of age), that his

sister’s family had left Bangladesh, that his son had become even

more acclimated to life in the United States (including forgetting

how to speak Bengali), and that conditions in Bangladesh had

changed so as to make it dangerous for westernized, non-practicing

Muslims such as Parvez and his family. On April 28, 2006, the BIA

denied Parvez’s motion to reopen, concluding that Parvez had

produced no new information regarding his uncle's death or his

son's circumstances. Moreover, the BIA found that Parvez had

failed to demonstrate that he would likely suffer persecution if he

were to return to Bangladesh.
 We review the BIA’s legal interpretations de novo, with 4

appropriate deference to the BIA’s interpretation of the underlying

statute in accordance with the principles of administrative law.

See Molina De Massenet v. Gonzales, 485 F.3d 661, 663 (1st Cir.

2007).

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This petition for review followed. In it, Parvez claims

that the BIA abused its discretion by refusing to reopen

proceedings to allow him to renew his request for cancellation of

removal and to apply for asylum and withholding of removal. He

further claims that the BIA erred by failing to address his motion

to stay voluntary departure.

II.

We have consistently held that "[m]otions to reopen

removal proceedings are disfavored as contrary to 'the compelling

public interests in finality and the expeditious processing of

proceedings.'” Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.

2007)(quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.

2005)). Accordingly, the denial of a motion to reopen is reviewed

solely for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323 4

(1992) (holding that a denial of a motion to reopen is reviewed for

abuse of discretion regardless of the underlying basis of the

alien's request to reopen); Molina De Massenet v. Gonzales, 485

F.3d 661, 663 (1st Cir. 2007); Raza, 484 F.3d at 127. A decision

will be upheld “unless the complaining party can show that the BIA

committed an error of law or exercised its judgment in an

arbitrary, capricious, or irrational way.” Raza, 484 F.3d at 127.
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A motion to reopen the BIA’s proceedings must be based

upon (1) new material evidence that was not available and which an

alien could not have presented at the prior hearing and (2) a

showing of a “prima facie case for the underlying substantive

relief sought.” Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir.

2005); see also 8 C.F.R. § 1003.2(c). 

A. Cancellation of Removal

When the BIA denies cancellation of removal based on the

factual determination that an alien fails to demonstrate the

requisite hardship, we lack jurisdiction to review its decision.

8 U.S.C. § 1252(a)(2)(B)(i)("[N]o court shall have jurisdiction to

review . . . any judgment regarding the granting of relief under

section 1229b [cancellation of removal]."). See Cruz-Camey v.

Gonzales, No. 06-2590, slip op. at 3, (1st Cir. Sept. 11, 2007);

Elysee v. Gonzales, 437 F.3d 221, 223 (1st Cir. 2006). Therefore,

we also lack jurisdiction to consider the BIA's denial of the

motion to reopen for consideration of cancellation of removal when

the BIA has decided there was not the requisite hardship. Kaweesa

v. Gonzalez, 450 F.3d 62, 67 (1st Cir. 2006); Mehilli v. Gonzales,

433 F.3d 86, 92-93 (1st Cir. 2005).

We do, however, have jurisdiction to review

constitutional claims or questions of law under 8 U.S.C. §
 The section states that no provision "which limits or 5

eliminates judicial review[] shall be construed as precluding

review of constitutional claims or questions of law raised upon

petition for review."

 8 C.F.R. § 1003.2(c) states: "A motion to reopen proceedings 6

shall not be granted unless it appears to the Board that evidence

sought to be offered is material and was not available and could

not have been discovered or presented at the former hearing." 

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1252(a)(2)(D). Mehilli, 433 F. 3d at 93. Parvez attempts to 5

bring himself within this exception by asserting that the BIA made

a legal error and violated his right to due process by failing to

consider the supporting materials he provided pertaining to his

motion to reopen for cancellation of removal. This supporting

material primarily related to the death of his uncle, changes in

the circumstances of the other family members, and his son's

continued social and educational development.

1. New Evidence Regarding His Uncle's Death

We have jurisdiction to review Parvez's claim that the

BIA committed a legal error in determining that the death of

Parvez's uncle did not constitute new material evidence within the

meaning of 8 C.F.R. § 1003.2(c). Parvez argues that because his 6

uncle died in December 2004, two months after the IJ issued her

oral ruling, a finding that the evidence reporting his uncle's

death was not new evidence was in contravention of the regulation.

This argument fails to recognize that Parvez had an

opportunity to file a motion with the BIA prior to its ruling on
 BIA Practice Manual § 4.8(b) (2004)("The Board does not 7

consider new evidence on appeal. If new evidence is submitted,

that submission may be deemed a motion to remand proceedings to the

Immigration Judge for consideration of that evidence and treated

accordingly.").

 In determining that the death of Parvez’s uncle was not 8

material new evidence, the BIA stated:

In this regard, we note that the respondent’s uncle died

in December 2004, which was more than 1 year prior to our

decision on the respondent’s appeal. The respondent has

not explained why he did not file a motion to reopen on

this basis during the pendency of his appeal. 

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his appeal, through which he could have presented the new evidence

about his uncle's death to the IJ after a remand by the BIA.7

However, Parvez did not submit evidence of his uncle's death to the

BIA until after the BIA rendered its decision on his appeal.

Therefore, the BIA was justified in its position that the death of

Parvez's uncle cannot constitute "new evidence sufficient to merit

reopening" because "the respondent has not explained why he did not

file a motion to reopen on this basis during the pendency of his

appeal."8

2. New Evidence Regarding Other Familial Changes

Parvez also argues that the BIA violated his due process

rights because "[t]he BIA appeared not to have considered any of

the supporting evidence filed with the motion," particularly

evidence pertaining to his sister's departure from Bangladesh, his

mother's forced retirement on account of age, and his son's success

in school. However, the BIA’s language adequately demonstrates

that the BIA considered the proffered evidence on these other
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familial changes and nonetheless decided against Parvez. The BIA

directly addressed his son's circumstances, noting that the son

would not experience "exceptional and extremely unusual hardship"

in part because he is "very young, and capable of adapting to life

in Bangladesh."

Here, Parvez's claim is a disguised challenge to fact

finding. See Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007)

(holding that constitutional claims raised under the §

1252(a)(2)(D) exception must be more than "a disguised challenge to

factual findings”). Thus, we have no jurisdiction to review the

BIA's denial of the motion to reopen the cancellation of removal on

the ground that the BIA did not adequately consider evidence

regarding his sister's, mother's, and son's changed circumstances.

B. Asylum Application 

Parvez also argues that the BIA abused its discretion by

refusing to reopen proceedings to allow him to apply for asylum. 

An alien in removal hearings may move at any time to apply for

asylum or withholding of deportation if the alien is able to

establish a prima facie entitlement to the substantive relief

sought, 8 C.F.R. § 1003.2(c)(1), and there are changed

circumstances arising in the country to which deportation has been

ordered, id. § 1003.2(c)(3)(ii). 

Parvez asserts that he has "demonstrated a prima facie

case for asylum based upon his religious beliefs as a non-
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practicing Muslim who may be considered a heretic, his status as a

westernized Bangladeshi, and his political opinion as a relative of

the prominent part of the opposition Awami League." The BIA took

a different view. It noted that Bangladesh has been plagued by

politically motivated violence since the 2001 elections, yet

Parvez's sister and mother, whose religious and political positions

seem to be similar to Parvez's, "do not appear to have ever

suffered any deprivation from any of these conditions." Moreover,

the country condition information Parvez provided was "very general

in nature" and did not indicate that someone in a position similar

to Parvez's would experience persecution. In the BIA's view,

"respondent's broad allegations that he will suffer persecution

upon his return to Bangladesh amount to mere speculation." Given

this assessment of the deficiencies in Parvez's case for asylum,

the BIA did not abuse its discretion in denying his motion to

reopen proceedings for consideration of an asylum claim. 

C. Withholding of Removal

Our conclusion that the BIA supportably found that Parvez

did not make a prima facie showing with respect to his asylum claim

necessarily dooms his claim with respect to the withholding of

removal. See Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st

Cir. 2005) (finding that the BIA's rejection of the petitioner's

asylum claim, if sustainable, "sounds the death knell for his

counterpart claim for withholding of removal"). Accordingly, we
 The government asserts that Parvez should have sought an 9

extension of his voluntary departure period from the Department of

Homeland Security. Naeem v. Gonzales, 469 F.3d 33, 38 n.3 (1st

Cir. 2006). Parvez filed his motion to stay voluntary departure

with the BIA on March 9, 2006, two days prior to the expiration of

his voluntary departure period. If the BIA had granted a stay

pending its ruling on the motion to reopen, Parvez would have been

required to depart on April 30,2007.

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conclude that the BIA did not abuse its discretion by denying the

motion to reopen proceedings so as to allow Parvez to apply for

such relief. 

D. Failure to Rule on Motion to Stay Voluntary Departure

Parvez claims that the BIA denied him due process by

failing to rule on his motion to stay voluntary departure pending

its decision on his motion to reopen proceedings. Even if Parvez

could assert a due process claim based on the BIA's failure to rule

on his motion to stay voluntary departure (an issue on which we

take no position), such a claim would at least require a statutory

or regulatory obligation to rule on the motion. Parvez has not

established that the BIA had such an obligation.9

For the foregoing reasons, we deny the petition for

review.

So ordered.