                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-1434


PAUL ANTHONY RANGOLAN,

                Petitioner,

           v.

MICHAEL B. MUKASEY, Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   October 28, 2008                  Decided:   December 3, 2008


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Dismissed by unpublished per curiam opinion.


ARGUED:    Linda Anna Dominguez, L.A. DOMINGUEZ LAW, L.L.C.,
Baltimore, Maryland, for Petitioner.    M. Jocelyn Lopez Wright,
UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration
Litigation, Washington, D.C., for Respondent.         ON BRIEF:
Gregory G. Katsas, Assistant Attorney General, Civil Division,
Carol   Federighi,   Senior   Litigation   Counsel,  Office   of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Paul Rangolan, a citizen of Jamaica, petitions for review

of an order of the Board of Immigration Appeals (BIA) denying

his   motion     to   reopen     the    BIA’s      order      of    removal.       Because

Rangolan has not raised a constitutional or legal question with

respect to that order of denial, we dismiss the petition for

lack of jurisdiction.



                                             I.

       In July 1987, the BIA granted Rangolan lawful permanent

resident status in the United States; however, in December 1998,

an immigration judge ordered his removal from this country as an

aggravated      felon.         Three    months         later,       Rangolan     illegally

reentered     the     United    States.           In   June    2004,     the    Government

arrested Rangolan and later convicted him of using, carrying,

and possessing a firearm during a drug trafficking offense and

of    illegal    reentry       following      removal         for    conviction        of    an

aggravated felony.

       When     the    Department       of       Homeland      Security        (DHS)        took

Rangolan into custody after he served his criminal sentence, he

expressed fear of persecution or torture in Jamaica on account

of    his   (homosexual)       sexual     orientation.              An   asylum    officer

conducted a “reasonable fear” interview pursuant to 8 C.F.R.



                                             2
§ 208.31 (2008), and transferred the matter to an immigration

judge (IJ) for a hearing.

        At   his     hearing,       Rangolan      conceded     his       ineligibility        for

asylum       because       of    his     aggravated      felony     conviction,         but    he

argued       that     if        removed    to    Jamaica,      the       government       would

persecute and torture him because of his sexual orientation.                                   He

testified that when deported to Jamaica in January 1999, he had

to   move      out    of    his     brother’s         house   because       the    neighbors,

suspecting         Rangolan        was    gay,       threatened      both    him    and       his

brother.        Rangolan further explained that he returned to the

United       States    shortly         after     an    incident     in    which     a    crowd,

yelling      homosexual          slurs,    chased       him   and    a    friend,       hit   the

friend on the head with a brick, and cut Rangolan with a broken

bottle.       Finally, Rangolan’s sister testified at the immigration

hearing that neighbors killed Rangolan’s brother in July 1999

because of his relationship to Rangolan.

      The IJ found Rangolan ineligible for withholding of removal

under    the    asylum          statute    and    the    Convention       Against       Torture

(“CAT”) because he had been convicted of a particularly serious

crime and because his prior crimes and his firearms collection

make him a danger to the community.                            However, the IJ found

Rangolan eligible for deferral of removal under CAT, reasoning

that it was more likely than not that Rangolan would be subject

to imprisonment and torture for homosexual acts if deported to

                                                 3
Jamaica.      In reaching this conclusion, the IJ cited the State

Department’s 2005 Country Report on Human Rights Practices in

Jamaica,     which     noted     that     public     demonstrations           of    physical

intimacy between men was a crime punishable by imprisonment in

Jamaica, that there had been a number of incidents of civilian

violence     against        homosexuals     that   year,       and     that      reports    of

physical abuse of homosexual prisoners continued.

      On August 16, 2007, the BIA granted DHS’s appeal, vacated

the IJ’s grant of CAT deferral, and ordered Rangolan removed to

Jamaica.     The BIA found the IJ’s conclusion that Rangolan would

be tortured in Jamaica to be “based on a series of unsupported

suppositions” and concluded it not more likely than not that

“any torture the applicant may suffer in Jamaica would be by or

at the acquiescence of the government.”

      Rangolan      petitioned       this    court      for    review       of     the   BIA’s

decision and sought a stay of removal.                        The government opposed

the   stay    and      moved    to     dismiss     the    petition          for     lack    of

jurisdiction.        On October 23, 2007, over a dissent, we granted

the motion to dismiss and denied the motion to stay.                                Rangolan

v.    Mukasey,      No.      07-1838      (4th   Cir.     Oct.       23,      2007).       We

subsequently        denied      Rangolan’s       petition        for       rehearing       and

rehearing en banc.             Rangolan, No. 07-1838 (4th Cir. Nov. 21,

2007).     The Supreme Court denied Rangolan’s application and re-

application      for    a    stay    of   removal,      Rangolan       v.   Mukasey,       128

                                             4
S. Ct. 1331 (2008), and his petition for certiorari, Rangolan v.

Mukasey, 128 S. Ct. 2934 (2008).

       On March 7, 2008, Rangolan moved to reopen his case with

the BIA and to stay his removal during the pendency of its

consideration        of    that     motion.         He    claimed     that     “there    is    a

critical change in circumstances and/or a denial of due process

in    his   case.”         Rangolan     based      his    argument      primarily       on    an

unpublished BIA decision issued December 18, 2007 in which the

BIA    reversed      the    decision      of       an    IJ    and    determined    that       a

homosexual Jamaican alien was eligible for statutory withholding

of removal because of his sexual orientation.                                On March 31,

2008, the BIA denied as untimely Rangolan’s motion to reopen

explaining that an applicant must file a motion to reopen within

90 days after a BIA decision, in this case on or before November

14, 2007 -- 90 days following the BIA’s August 16, 2007 decision

ordering Rangolan’s removal to Jamaica.



                                             II.

       Rangolan moves for a stay of removal and seeks review of

the BIA’s denial of his motion to reopen as untimely.                                        The

government     opposes           this   motion      and       moves   for    dismissal        of

Rangolan’s     petition,           arguing     that      8     U.S.C.   §    1252(a)(2)(C)

(2006)      deprives        us     of   jurisdiction            to    review     Rangolan’s

petition.

                                               5
       Section       1252(a)(2)(C)      provides      in    relevant         part:        “[N]o

court       shall    have    jurisdiction       to   review      any    final       order         of

removal against an alien who is removable by reason of having

committed       a     criminal    offense        covered        in     section       .       .     .

1227(a)(2)(A)(iii).”             This     statute     generally         deprives         us       of

jurisdiction to review a final order of removal issued against

an alien (like Rangolan) removable as an aggravated felon.                                   But,

as    the    Government       concedes,     pursuant       to    “the    Real       ID    Act’s

addition      of    new     Section   242(a)(2)(D)         to    the    INA    .    .    .       the

federal courts” retain jurisdiction to review such an order if

the case presents a constitutional claim or a question of law.

See    8     U.S.C.    §    1252(a)(2)(D)       (2006);         see    also    Saintha            v.

Mukasey, 516 F.3d 243, 248 (4th Cir. 2008).

       Admittedly, no statute explicitly permits us to review the

BIA’s denial of a motion to reopen.                        See Sarmadi v. INS, 121

F.3d 1319, 1321 (9th Cir. 1997); Patel v. Att’y Gen., 334 F.3d

1259, 1261 (11th Cir. 2003).                However, we believe that implicit

in our power to review a final BIA order is the power, in the

appropriate case, to review the denial of a motion to reopen

removal proceedings.            See Stewart v. INS, 181 F.3d 587, 593 (4th

Cir.    1999)       (noting    that   the   Fourth     Circuit         and    our       “sister

circuits”       “have       traditionally       interpreted           ‘final       order          of

deportation’ . . . to include a BIA order denying a motion to

reopen”); see also Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir.

                                            6
2008) (holding that the authority to review an order denying a

motion to reopen is implicit in the grant of authority to review

a final BIA order); Patel, 334 F.3d at 1261 (same); Sarmadi, 121

F.3d at 1321 (same); Chow v. INS, 113 F.3d 659, 664 (7th Cir.

1997) (same), abrogated on other grounds by LaGuerre v. Reno,

164 F.3d 1035 (7th Cir. 1998). 1

     Tellingly,        Rangolan       does      not     suggest     any    other

jurisdictional basis permitting us to review the BIA’s denial of

a motion to reopen removal proceedings, and we can find none.

Thus, the general power to review any “final order of removal”

in § 1252(a)(1) provides a basis -- but our only basis -- to

review a denial of a motion to reopen.

     For   criminal     aliens,      Section    1252(a)(2)   expressly    limits

our power to review final orders of removal in § 1252(a)(1) to

constitutional       and     legal    questions,       and   thus   necessarily

restricts our review of a denial of a criminal alien’s motion to

reopen     removal     proceedings       to     constitutional      and   legal

questions.     Five courts of appeals that have considered this

jurisdictional       issue   have     reached    the   identical    conclusion.

     1
       Notably, not even the Government argues to the contrary.
Moreover, in 1964, when the Ninth Circuit held that it did not
have jurisdiction to review a BIA’s denial of a motion to
reopen, the Supreme Court reversed that decision in a one-
sentence decision. See Giova v. Rosenburg, 379 U.S. 18 (1964).
As a result, it seems clear that the courts of appeals retain
jurisdiction to review motions to reopen removal proceedings
despite the lack of an explicit statutory grant.


                                         7
See, e.g., Hanan, 519 F.3d at 763; Cruz v. Att’y Gen., 452 F.3d

240, 246 (3d Cir. 2006); Patel, 334 F.3d at 1261-62; Sarmadi,

121 F.3d at 1321; Chow, 113 F.3d at 664; see also Pepaj v.

Mukasey, 509 F.3d 725, 727-28 (6th Cir. 2007) (holding that the

court lacked jurisdiction to review a denial of a motion to

reopen by a criminal alien where petitioner raised only an issue

of fact); Boakai v. Gonzales, 447 F.3d 1, 4 & n.5 (1st Cir.

2006)    (same);   Durant   v.   INS,   393   F.3d   113,   115-16    (2d   Cir.

2004). 2

     In the case at hand, Rangolan presents no constitutional or

legal question.     Therefore, Rangolan’s petition for review is



                                                                     DISMISSED.




     2
       We note that our decision in the case at hand does not in
any way conflict with our recent holding in Obioha v. Gonzales,
431 F.3d 400 (4th Cir. 2005).      There, we addressed 8 U.S.C.
§ 1252(a)(2)(B)(i) (2006), which limits judicial review of “any
judgment regarding the granting of relief under” certain
immigration    law   provisions.        That   statute,   unlike
§ 1252(a)(2)(C), does not limit a court’s jurisdiction to review
a final order of removal and therefore in that case, we had no
need to consider the relationship between a final order of
removal and a denial of a motion to reopen.


                                        8
