                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS         December 3, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 02-61092
                           Summary Calendar


ELIZABETH CROSBY-VARGAS,

                                     Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                                     Respondent.

                         --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                        (BIA No. A42-340-269)
                         --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Petitioner Elizabeth Crosby-Vargas (Crosby), a native and

citizen of Mexico, seeks our review of the Board of Immigration

Appeals’s (BIA) affirmance of the Immigration Judge’s (IJ) denial

of her application for discretionary waiver of removal under former

§ 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C.

§ 1182(c)(1994).   She argues that the IJ denied her due process at

the hearing on her application by assuming the role of prosecutor

in cross-examining her.    She further asserts that she was denied


     *
        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this opinion should not be published and is not precedent except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.
due process in her appeal to the BIA by the BIA’s failure to make

required findings of fact and conclusions of law when it affirmed

the IJ’s decision.

     As the parties agree, the transitional rules of the Illegal

Immigration Reform and Immigration Responsibility Act (IIRIRA)

apply    here    because   Crosby’s     removal      proceeding        began    before

April 1, 1997, and concluded more than 30 days after September 30,

1996.     See Goonsuwan v. Ashcroft, 252 F.3d 383, 386 (5th Cir.

2001); IIRIRA § 309(a), (c)(1).             Section 106(c) (codified at 8

U.S.C. § 1105(a)(c)(1994)) of the INA, which the transitional rules

incorporate,      requires   an   alien     to   exhaust       his    administrative

remedies; and his failure to do so serves as a jurisdictional bar

to our consideration of the issue.           Wang v. Ashcroft, 260 F.3d 448,

452-53 (5th Cir. 2001); Goonsuwan, 252 F.3d at 386-87.                    Because in

her BIA appeal Crosby failed to raise her due process challenge to

the IJ’s cross-examination, we lack jurisdiction to consider this

issue.    See Anwar v. INS, 116 F.3d 140, 144 n.4 (5th Cir. 1997);

cf. Calderon-Ontiveros v. INS, 809 F.2d 1050, 1051-52 (5th Cir.

1986).

     As    the    Attorney    General       points      out,     there    are     also

jurisdictional obstacles to our review of Crosby’s claim that she

was denied due process in her BIA appeal.               Under Lerma de Garcia v.

INS, 141 F.3d 215, 216-17 (5th Cir. 1998), we lack jurisdiction

over Crosby’s claim.       In light of the Supreme Court’s statement in

Calcano-Martinez      v.   INS,   533   U.S.     348,    349    n.2    (2001),    that

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constitutional concerns must be considered in determining the scope

of IIRIRA’s jurisdiction-stripping provisions, however, we recently

left open the question whether our jurisdiction would extend to

substantial constitutional claims.   Flores-Garza v. INS, 328 F.3d

797, 803 n.5 (5th Cir. 2003).   Nevertheless, because Crosby cannot

prevail regardless of whether we have jurisdiction, we do not

address this question. See United States v. Alvarez, 210 F.3d 309,

310 (5th Cir. 2000); United States v. Weathersby, 958 F.2d 65, 66

(5th Cir. 1992).

     Contrary to Crosby’s contention, the regulation used by the

BIA to affirm the IJ’s decision, 8 C.F.R. § 3.1(e)(4), now found at

8 C.F.R. § 1003.1(e)(4), does not require —— indeed, specifically

prohibits —— the BIA from including any further explanation or

reasoning when affirming the decision of the IJ without opinion.

To the extent that Crosby is contending that due process required

the BIA to make specific findings of fact and conclusions of law in

affirming the IJ’s decision, her argument is foreclosed by our

decision in Soadjede v. Ashcroft, 324 F.3d 830, 832-33 (5th Cir.

2003).

     For the foregoing reasons, Crosby’s petition for review is

DISMISSED IN PART FOR LACK OF JURISDICTION AND DENIED IN PART.




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