Filed: Jun. 21, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 21, 2005 Charles R. Fulbruge III Clerk 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 Mar
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 21, 2005 Charles R. Fulbruge III Clerk 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 Mari..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
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.
*
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this opinion should not be published and is not precedent except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.
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.