                                                               [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                            FILED
                         _________________________ U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                                                         AUG 11, 2006
                                No. 05-16447
                                                      THOMAS K. KAHN
                            Non-Argument Calendar
                                                           CLERK
                         ________________________

                           Agency No. A30-788-759

RAFAEL GUERRERO BERMUDEZ,

                                                                Petitioner,

                                     versus

U. S. ATTORNEY GENERAL,

                                                                Respondent.

                          ______________________

                    Petition for Review of a Decision of the
                        Board of Immigration Appeals
                          _______________________

                               (August 11, 2006)

Before EDMONDSON, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

      Rafael Guerrero-Bermudez, a native and citizen of Colombia, petitions for

review of the order of the Board of Immigration Appeals (“BIA”) adopting the
order of the immigration judge (“IJ”) denying his application for a waiver of

inadmissibility under the former INA § 212(c), 8 U.S.C. § 1182(c).1 No reversible

error has been shown; we deny the petition.

       The parties disagree about whether we have jurisdiction over this case. “We

review subject matter jurisdiction de novo.” Gonzalez-Oropeza v. U.S. Attorney

Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We do have jurisdiction to hear

Guerrero-Bermudez’s claims on appeal because they are constitutional or present a

question of law. See 8 U.S.C. § 1252(a)(2)(C), (D) (removing our jurisdiction to

review a final removal order against an alien convicted of certain criminal offenses

unless the petitioner raises a constitutional question or a question of law).

       In this case, we review the decisions of the IJ and the BIA. See Al Najjar v.

Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (noting that we review the BIA’s

decision; but “[i]nsofar as the [BIA] adopts the IJ’s reasoning, we will review the



  1
   The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) repealed
§ 212(c), which provided that “[a]liens lawfully admitted for permanent residence who temporarily
proceeded abroad voluntarily and not under an order of deportation, and who are returning to a
lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the
Attorney General . . . .” (emphasis added). See Savoury v. U.S. Attorney Gen., 449 F.3d 1307, 1312
(11th Cir. 2006) (discussing repeal of § 212(c)). The Supreme Court has explained, however, that
provisions of the IIRIRA that repealed discretionary relief from deportation under § 212(c) do not
apply retroactively to aliens, such as Guerrero-Bermudez, who entered into a plea agreement before
amendment of § 212(c) and who would have been eligible for § 212(c) relief when entering into their
plea. INS v. St. Cyr, 121 S.Ct. 2271, 2291-93 (2001).


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IJ’s decision as well”). In addition, we review the denial of § 212(c) relief for

abuse of discretion. Ramsey v. INS, 55 F.3d 580, 582 (11th Cir. 1995).

        Guerrero-Bermudez raises three constitutional claims.2 First, he argues that

the IJ’s conclusion that he was ineligible for a discretionary § 212(c) waiver

because he had received such relief previously was erroneous and deprived him of

substantive due process. “The analysis of any claim to a substantive due process

right should begin with ‘a careful description of the asserted fundamental liberty

interest.’” Tinker v. Beasley, 429 F.3d 1324, 1327 (11th Cir. 2005) (quoting

Washington v. Glucksberg, 117 S.Ct. 2258, 2268 (1997)). We have concluded

“that the failure to receive discretionary relief in the immigration context does not

deprive an alien of a constitutionally protected liberty interest.” Tefel v. Reno,

180 F.3d 1286, 1300 (11th Cir. 1999). Because “an alien has no

constitutionally-protected right to discretionary relief or to be eligible for

discretionary relief,” and because the IJ denied Guerrero-Bermudez a § 212(c)


    2
     To the extent that Guerrero-Bermudez also asserts that the BIA erred as a matter of law in
adopting the IJ’s decision denying him a § 212(c) waiver, we reject this argument because the IJ
acted within his discretion. In reviewing Guerrero-Bermudez’s application for a § 212(c) waiver,
the IJ considered several factors, including Guerrero-Bermudez’s evasive testimony, that he
committed additional crimes after previously receiving a § 212(c) waiver, the time he spent in the
United States, his family ties to the United States, his work history, and his lack of recent criminal
history. See Cobourne v. INS, 779 F.2d 1564, 1567 (11th Cir. 1986) (concluding that, in reviewing
an application for a § 212(c) waiver, the IJ properly balanced “adverse factors including
[petitioner’s] criminal record and lack of evidence of rehabilitation against the favorable factors
including his family ties”).

                                                  3
waiver as a matter of discretion, his due process claim fails. Oguejiofor v. U.S.

Attorney Gen., 277 F.3d 1305, 1309 (11th Cir. 2002).

        Guerrero-Bermudez next argues that the IJ’s decision denying him a §

212(c) waiver violated his right to equal protection under the Fourteenth

Amendment.3 Again, the IJ’s decision denying Guerrero-Bermudez a § 212(c)

waiver was discretionary; and we discern no equal protection violation in this

case.

        Finally, Guerrero-Bermudez argues that the IJ committed a double jeopardy

violation in not dismissing violations of the law listed in his notice to appear

because these violations already had been adjudicated. Because we have

concluded that “the double jeopardy clause applies only to proceedings that are

essentially criminal and deportation is purely civil,” we reject Guerrero-

Bermudez’s double jeopardy claim. Cadet v. Bulger, 377 F.3d 1173, 1196 (11th

Cir. 2004) (internal quotation omitted).

        PETITION DENIED.




    3
     The Fourteenth Amendment does not apply to this federal-action case. But “we assume
[Guerrero-Bermudez is] seeking relief under the equal protection component of the Fifth
Amendment’s due process clause, which provides protection coterminous with that of the Fourteenth
Amendment’s equal protection clause.” Rodriguez-Padron v. INS, 13 F.3d 1455, 1458 n.7 (11th Cir.
1994) (citing Johnson v. Robison, 94 S.Ct. 1160, 1164 n.4 (1974)).

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