                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 13, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-60615
                          Summary Calendar


JOSE ASENCION TORRES-MARTINEZ,

                                    Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                    Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A41 312 816
                        --------------------

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Asencion Torres-Martinez (Torres) petitions for review

of a Board of Immigration Appeals (BIA) decision dismissing his

appeal from a final order of removal.   Torres argues that the BIA

erred by upholding the immigration judge’s decision following the

hearing of May 24, 2005, to pretermit consideration of his waiver

application under former Immigration and Nationality Act § 212(c)

based on Torres’s prior aggravated felony conviction.       Torres

argues that his waiver application should have been considered

under the law in place in 2003, which would have applied had he

     *
       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this opinion should not be published and is not precedent except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. 06-60615
                                -2-

received effective assistance of counsel and had his waiver

application been timely filed at the earlier time.   Torres

contends that his waiver application would likely have been

granted under the law in place in 2003 and that the subsequent

clarification of the law in 8 C.F.R. § 1212.3(f)(5) and

In re Blake, 23 I & N Dec. 722 (BIA 2005), should not apply.     He

asserts, citing Batanic v. INS, 12 F.3d 662 (7th Cir. 1993), that

the failure to consider his application nunc pro tunc violates

due process.

     Although we generally lack jurisdiction to review final

orders of removal of aliens who have been convicted of aggravated

felonies, see 8 U.S.C. § 1252(a)(2)(C), pursuant to the REAL ID

Act, we retain jurisdiction over constitutional claims or

questions of law.   § 1252(a)(2)(D); see Rodriguez-Castro v.

Gonzales, 427 F.3d 316, 319 (5th Cir. 2005).   Therefore, we may

consider Torres’s assertion that his right to due process was

violated by the failure to consider his arguments as of the time

his attorney should have filed his § 212(c) application.    We

review claims of a due process violation de novo.    Anwar v. INS,

116 F.3d 140, 144 (5th Cir. 1997).

     Torres has not pointed to any authority or evidence

supporting his claim that he would likely have received a waiver

under § 212(c) had his application for such relief been

adjudicated in 2003.   Nor has he supported his contention that

application of the clarification in Blake and § 1212.3(f)(5)
                          No. 06-60615
                               -3-

changes anything that would affect the process he received.    As

Torres admits, the statutory language regarding waivers of

admissibility has not changed.   Torres’s reliance on Batanic in

support of his argument is misplaced.     Batanic involved a change

in statutory law and is neither controlling nor persuasive

authority for Torres’s contention.   See Batanic, 12 F.3d at 664,

667-68.

     The petition for review is DENIED.
