          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                               February 12, 2008
                                No. 06-60505
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

ANA BANECIA AYALA

                                           Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

                                           Respondent


                    Petition for Review of an Order of the
                       Board of Immigration Appeals
                            BIA No. A72 528 543


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Ana Banecia Ayala (Banecia), a native and citizen of El Salvador, has filed
a petition for review of the Board of Immigration Appeals’ (BIA) denial of her
motion to reopen removal proceedings for lack of jurisdiction and as barred by
time and numerical restrictions. Banecia asserts that the general time and
numerical limitations governing motions to reopen are not applicable and that
the BIA’s decision violates her equal protection and due process rights.



      *
      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should not be published and is not precedent except under the limited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. 06-60505

      In 1995, Banecia was ordered deported in absentia after failing to appear
at her scheduled removal hearing. She did not appeal the removal order. On
September 10, 1998, Banecia filed a special motion to reopen and stay
deportation so that she could apply for relief under § 309(g) of the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA), as amended
by § 203(c) of the Nicaraguan and Central American Relief Act (NACARA).1 On
December 20, 2000, the immigration judge (IJ) denied the motion because
Banecia failed to file a complete application for NACARA relief by the November
18, 1999 deadline. See 8 C.F.R. § 1003.43. On December 22, 2003, Banecia filed
a renewed motion to reopen proceedings under § 309(h)(3) of IIRIRA, as
amended by § 1505(c) of the Legal Immigration Family Equity (LIFE) Act
Amendments,2 contending that she was now eligible for suspension of
deportation because on April 16, 2003, her spouse was accorded legal permanent
resident status under § 203 of NACARA.          The IJ sitting in Los Angeles,
California, granted Banecia’s motion as well as a change of venue to Dallas,
Texas.
      On January 26, 2005, after a hearing on the merits, the IJ in Dallas
determined that Banecia was ineligible for special rule suspension of deportation


      1
         Under § 203 of NACARA, aliens were allowed to apply for suspension of
deportation under the more lenient standard that existed before IIRIRA was
enacted. Before IIRIRA, deportation could be stayed if an applicant could show
that she or a qualifying relative would suffer extreme hardship. See
Immigration and Naturalization Act (INA) 244(a)(1), 8 U.S.C. 1254(a)(1)(1994).
In addition, the applicant could accrue time to the satisfy the seven-year
continuous presence requirement notwithstanding that she had been served
with an Order to Show Cause. Id. After IIRIRA, time stopped for the purposes
of satisfying the continuous presence requirement after an alien was served with
an Order to Show Cause. IIRIRA § 309(c)(5); INA §240A(d)(1), 8 U.S.C. §
1229(d)(1).
      2
       Banecia asserted that her first motion pursuant to the §1505(c) of the
LIFE Act Amendments was mailed on or about April 10, 2001, R. 194; however,
this motion is not in the record.

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                                  No. 06-60505

pursuant to § 203 of NACARA and vacated the previous order to reopen
proceedings because the IJ in Los Angeles lacked jurisdiction to consider the
motion pursuant to 8 C.F.R. 1003.43(e), which permits an alien to file only one
motion to reopen for NACARA benefits. On appeal, the BIA affirmed the IJ’s
decision and dismissed Banecia’s appeal. The BIA agreed that the Los Angeles
IJ did not have jurisdiction to grant Banecia’s motion to reopen, but also noted
that the LIFE Act Amendments motion may have been untimely and that
§ 1505(c) relief was not applicable to Banecia.3      The BIA also found that
Banecia’s motion was untimely under the general rules governing motions to
reopen. See 8 C.F.R. 1003.2(c)(2)(2006) (providing that, with certain exceptions,
a motion to reopen in any case previously subject to a final decision by the IJ or
the BIA must be filed no later than 90 days after the date of that decision, or on
or before September 30, 1996, whichever date is later in time).
      Banecia contends that the normal time and numerical limitations do not
preclude her from filing a subsequent motion to reopen under § 309(h) of IIRIRA
because the statutory language of § 309(h) sets forth specific requirements
allowing one motion to reopen under the section notwithstanding any other time
and numerical restrictions found elsewhere in the regulations. In addition,
Banecia contends that (1) her due process rights were violated because the Los


      3
         Section 241(a)(5) of the INA, 8 U.S.C. 1231(a)(5) provides for the
reinstatement of removal orders against aliens who illegally reenter the United
States after having been removed or voluntarily departed under order of
removal; in addition, aliens whose removal orders have been reinstated are not
eligible for any relief under the Act and are prohibited from reopening or
reviewing their previous removal order. Section 1505(c) of the LIFE Act
Amendments removed the § 241(a)(5) bar to relief for those aliens who were
otherwise eligible for relief under § 203 of NACARA and also provides for a
special reopening procedure notwithstanding the time and number limitations
otherwise governing motions to reopen. Motions filed pursuant to § 1505(c) of
the LIFE Act Amendments were required to be filed by October 16, 2001. See
8 C.F.R. § 1003.43(f)(2006).


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                                  No. 06-60505

Angeles IJ’s decision to reopen the proceedings could have been based upon the
IJ’s authority to act sua sponte; and(2) she was denied equal protection because
it is unconstitutional to prohibit aliens not under newly reissued orders of
removal from applying for suspension of deportation under § 1505(c) of the LIFE
Act Amendments.
      After a review of the record, we conclude that the Los Angeles IJ did not
have jurisdiction to grant Banecia’s motion to reopen. Only an alien with a
reinstated final order of deportation or a newly issued final order based on illegal
entry after deportation or voluntary removal may file, with the Immigration
Court or the BIA, a motion to reopen pursuant to § 1505(c) of the LIFE Act
Amendments. 8 C.F.R. § 1003.43(i)(1). Other aliens who wish to apply for
suspension of deportation pursuant to § 1505(c) of the LIFE Act Amendments
may do so before the Office of International Affairs (OIA). Id.; see also 8 C.F.R.
240.62(b) (conferring initial jurisdiction on the OIA in cases such as where a
spouse has been granted relief under NACARA). Although under an order of
deportation, Banecia never left the United States and thus was not subject to
either a reinstated or newly issued order upon illegal reentry.
      Banecia’s constitutional claims are without merit.          Without proper
jurisdiction, the Los Angeles IJ could not exercise sua sponte authority. In
addition, because the decision to grant or deny a motion to reopen is purely
discretionary, there is no liberty interest at stake and thus, no due process
violation. Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550-51 (5th Cir. 2006).
Further, in order to establish an equal protection claim, Banecia had to show
that there is no rational basis for treating her differently than other similarly
situated aliens. Brieva-Perez v. Gonzales, 482 F.3d 356, 362 (5th Cir. 2007).
Aliens not under a reinstated final order or newly issued order of deportation are
not precluded from applying for relief under § 1505(c) of the LIFE Act
Amendments; rather, they must first file an application with the OIA. This



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procedural distinction does not rise to the level of a constitutional violation. See
Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978).
      Accordingly, Banecia’s petition for review is DENIED.




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