                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS                December 12, 2003

                                                               Charles R. Fulbruge III
                          FOR THE FIFTH CIRCUIT                        Clerk

                        _______________________

                              No. 02-60756
                        _______________________


                         ANTONIO BRAVO-GALLAGA,
                               A42 909 078

                                                                Petitioner,

                                  versus

                          JOHN D. ASHCROFT,
               Attorney General of the United States,

                                                                Respondent.


                ON PETITION FOR REVIEW OF AN ORDER OF
                   THE BOARD OF IMMIGRATION APPEALS



Before JONES, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

Per Curiam:*

           The Court has carefully considered this appeal in light

of the briefs, record and oral arguments.             Having done so, we

affirm both the Board’s decision to deny Bravo-Gallaga’s motion to

terminate his removal proceeding and its order of removal.




     *
            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opinion should not be published and is not precedent except under the limited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.
           Petitioner contends that the Board’s interpretation of

8 C.F.R. § 239.2(f) to require “an affirmative communication of the

[Immigration and Naturalization] Service” in line with Matter of

Cruz, 15 I&N Dec. 236 (BIA 1975), is wrong.            Since applicable law

and procedures have changed since Cruz was issued, Petitioner

contends he is deprived of the opportunity for a court to review

his prima facie eligibility for naturalization.               He suggests the

immigration judge misapplied Cruz by refusing to adjudicate his

prima facie eligibility and instead demanding a statement from the

Service, especially because the Service was then engaged in trying

to deport him.       Alternatively, Petitioner urges that Cruz be

“revisited” to permit immigration judges to rule on the issue of

prima facie eligibility for purposes of § 239.2(f).

           In our view, these arguments are unavailing for three

reasons.     First, the statutes still do not authorize immigration

judges or the Board to decide issues of naturalization.               Second,

Petitioner’s inability to obtain a decision from a court (though he

never went to court for such relief) or the Service amounts to

harmless error in this case, because his conviction for alien

smuggling destroyed his prima facie eligibility for naturalization

at the time of the immigration hearing.            Finally, this court lacks

jurisdiction to require the Board to “revisit” its own decision,

and we are without authority to issue an order in this appeal

compelling    the   Service   to   rule   in   a   separate    administrative

proceeding on Bravo-Gallaga’s prima facie eligibility.

                                      2
          The Board did not abuse its discretion in denying the

relief requested.   AFFIRMED.




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