                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                            No. 09-12740                  ELEVENTH CIRCUIT
                                                             MARCH 29, 2010
                        Non-Argument Calendar
                                                               JOHN LEY
                      ________________________
                                                                CLERK

                        Agency No. A028-929-906

HELAMAN IQUIQUE, II,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                            (March 29, 2010)


Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
       Helaman Iquique, II, seeks review of the Board of Immigration Appeals’

(BIA’s) order dismissing his appeal, pursuant to 8 C.F.R. § 1003.3(e), because

Iquique was deported prior to filing his appeal. After review, we deny the petition.

       Iquique first asserts the Immigration Judge (IJ) erred when it denied his

motion to reopen his asylum proceedings. We review only the BIA’s decision,

except to the extent that it expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft,

257 F.3d 1262, 1284 (11th Cir. 2001). Here, because the BIA did not adopt any

part of the IJ’s opinion, we do not review the IJ’s opinion and Iquique’s arguments

pertaining to the IJ’s errors are irrelevant to this appeal.

       Iquique also asserts the BIA violated his statutory and due process right to

file a motion to reopen with the IJ because 8 C.F.R. § 1003.3(e) is “ultra vires” to

8 U.S.C. § 1229a(c)(7)(A). We review constitutional challenges de novo.

Contreras-Rodriguez v. U.S. Att’y Gen., 462 F.3d 1314, 1316 (11th Cir. 2006).

Pursuant to 8 U.S.C. § 1229a(c)(7)(A), an “alien may file one motion to reopen”

his proceedings. 8 C.F.R. § 1003.3(a)(1) provides that a party affected by an IJ’s

decision may appeal that decision by filing a Notice of Appeal with the BIA.

However, “[d]eparture from the United States of a person who is the subject of

deportation proceedings, prior to the taking of an appeal from a decision in his or

her case, shall constitute a waiver of his or her right to appeal” with the BIA. Id. at

§ 1003.3(e).
                                             2
      Iquique asserts the Attorney General went beyond the scope of its statutory

authority, 8 U.S.C. § 1229a(c)(7)(A), when it enacted a regulation that waived his

right to file an appeal from outside the United States. However, Iquique has not

presented any arguments that 8 C.F.R. § 1003.3(e) exceeds the Attorney General’s

power to create regulations that govern immigration appeals. The BIA’s authority

comes from various statutes that permit the Attorney General to create an

Executive Office for Immigration Review, 6 U.S.C. § 521(a), and the Attorney

General’s power to establish regulations and review administrative determinations

in immigrations proceedings, 8 U.S.C. § 1103(g)(1), (2). Iquique’s argument that

8 U.S.C. § 1229a prevents the Attorney General from promulgating 8 C.F.R.

§ 1003 is unpersuasive as 8 U.S.C. § 1229a deals with motions to reopen rather

than notices of appeal to the BIA. Iquique has not presented any arguments that 8

C.F.R. § 1103.3(e) exceeds the Attorney General’s power to create regulations

governing immigration appeals. Accordingly, we deny the petition for review.



      PETITION DENIED.




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