                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 August 25, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-60592
                           Summary Calendar


MIRZA A. BAIG,

                                      Petitioner,

versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                                      Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                        BIA No. A72-450-368
                        --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Petitioner Mirza Baig has filed a petition for review of a

final order of the Board of Immigration Appeals (“BIA”) denying

his motion to reopen his deportation    proceeding.   We review for

abuse of discretion the BIA’s denial of a motion to reopen.

See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).

     Baig remained in the United States beyond his voluntary

departure date.    As a result, the BIA determined that he was

statutorily ineligible for an adjustment of status and denied his

motion to reopen.    Baig argues that the BIA abused its discretion

     *
       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this opinion should not be published and is not precedent except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. 03-60592
                                -2-

because, after the conclusion of his deportation hearing, he

became eligible for an adjustment of status due to his labor

certification under the Legal Immigration Family Equity Act (LIFE

Act) Amendments.**

     Because Baig’s deportation proceedings commenced prior to

the effective date of the Illegal Immigration Reform and

Immigrant Responsibility Act (IIRIRA), the governing statutory

provisions are found in the now-repealed Section 242B(e)(2)(A) of

the Immigration and Nationality Act (INA), 8 U.S.C. § 1252b,***

which provides in pertinent part:

     Any alien allowed to depart voluntarily under 244(e)(1)
     or who has agreed to depart voluntarily at his own
     expense under Section 242(b)(1) who remains in the
     United States after the scheduled date of departure,
     other than because of exceptional circumstances, shall
     not be eligible for relief described in paragraph (5)
     for a period of 5 years after the scheduled date of
     departure or the date of unlawful reenter,
     respectively.

INA § 242B(e)(2)(A), 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996).

The relief that is unavailable due to a failure to voluntarily

depart includes adjustments of status.    Id. § 242B(5)(C),

8 U.S.C. § 1252b(5)(C)(repealed 1996).    For purposes of the

voluntary departure provisions, “[t]he term ‘exceptional


     **
       The LIFE Act located at Pub. L. No. 106-553, and the LIFE
Act Amendments of 2000 at Pub. L. No. 106-554.
     ***
         The IIRIRA repealed 8 U.S.C. § 1252b and replaced it
with a new removal proceeding provision codified at 8 U.S.C.
§ 1229a. However, the provisions of 8 U.S.C. § 1252b apply to
this matter because Baig’s deportation proceedings commenced
prior to the April 1, 1997, effective date of the IIRIRA.
See Romani v. INS, 146 F.3d 737, 738 n.1 (9th Cir. 1998).
                           No. 03-60592
                                -3-

circumstances’ refers to exceptional circumstances (such as

serious illness of the alien or death of an immediate relative of

the alien, but not including less compelling circumstances)

beyond the control of the alien.”    Id. § 242B(f)(2), 8 U.S.C.

§ 1252b(f)(2)(repealed 1996).   Subsequent statutory changes

creating eligibility for adjustment of status are not one of the

enumerated “exceptional circumstances.”    See Shaar v. INS,

141 F.3d 953, 957 (9th Cir. 1998).   Accordingly, the BIA did not

abuse its discretion in denying Baig’s motion to reopen his

deportation proceedings.   See Lara, 216 F.3d at 496.

     Baig further argues that his due process rights were

violated when the BIA denied his motion to reopen deportation

proceedings prior to the Immigration and Naturalization Service

(INS),**** responding to his request for an extension of voluntary

departure.   We review due process challenges in immigration

proceedings de novo.   Anwar v. INS, 116 F.3d 140, 144 (5th Cir.

1997).

     Baig’s argument is not supported by the record as he did

receive notice of the INS’s denial of his extension request prior

to filing his motion to reopen.   Moreover, Baig has no

fundamental right to be present in the United States.

See Shaar, 141 F.3d at 958 (citing Harisiades v. Shaughnessy,

342 U.S. 580, 586-87 (1952)).


     ****
        The enforcement functions of the INS have since been
transferred to the Department of Homeland Security. 6 U.S.C.
§ 251.
                   No. 03-60592
                        -4-

PETITION DENIED.
