                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-2283



MARTIN PETER; AUDREY PETER; C.P.,

                                                          Petitioners,

           versus


ALBERTO R. GONZALES, Attorney General,

                                                           Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals. (A71-955-386; A71-955-384; A71-955-385)


Argued:   October 26, 2006               Decided:    December 29, 2006


Before WILKINS, Chief Judge, and WIDENER and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jonathan Scott Greene, HOWANSKI & GREENE, L.L.C., Towson,
Maryland, for Petitioners. Eric Warren Marsteller, UNITED STATES
DEPARTMENT   OF  JUSTICE,   Office   of   Immigration   Litigation,
Washington, D.C., for Respondent.     ON BRIEF: Peter D. Keisler,
Assistant Attorney General, Civil Division, Carol Federighi, Senior
Litigation Counsel, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.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

     Petitioner Martin J. Peter (“Mr. Peter”), a citizen of South

Africa, came to the United States on a temporary basis in 1991,

seeking medical treatment for his two children who suffer from a

rare genetic illness. In July 2001, Mr. Peter’s petition for alien

worker status was approved and the Department of Homeland Security

(“DHS”) filed with Mr. Peter a joint motion to reopen before the

immigration judge so that the Peters could file for adjustment of

status.   Unfortunately,   Mr.   Peter   concealed   an   arrest   for

solicitation of a prostitute from the immigration judge; when the

immigration judge became aware of this untruth, he denied Mr.

Peter’s motions to reopen and reconsider. Mr. Peter appealed this

decision to the Board of Immigration Appeals (“BIA”) which affirmed

the immigration judge’s decision.        He then appealed the BIA’s

decision to this court, alleging that both the immigration judge

and BIA abused their discretion in denying his motions to reopen

and reconsider.   Mr. Peter also alleges that the immigration judge

violated due process in denying these motions without a hearing.

For the reasons that follow, we affirm.



                                 I.

     Mr. Peter, a South African citizen, entered the United States

with his wife and two children (“the Peters”) in May 1991 with

authorization to remain until November 1991.    Mr. Peter’s children


                                  2
were to receive treatment for a rare mitochondrial disease at Johns

Hopkins University.1        Still in the U.S. on January 14, 1992, the

Peters received permission to depart before January 13, 1993 and

later received an extension until July 10, 1994.            The Peters did

not leave the country by this deadline.            In June 1996, Mr. Peter

was charged with deportability for remaining in the country longer

than permitted, and on August 21, 1996, an immigration judge

granted    Mr. Peter’s application for voluntary departure but also

issued an alternative removal order if Mr. Peter failed to depart

by March 1, 1997.      Again, the Peters did not leave the United

States.

     In July 2001, Mr. Peter’s petition for alien worker status was

approved and the Department of Homeland Security (“DHS”) filed with

him a joint motion to reopen before the immigration judge so that

the Peter family could file for adjustment of status.            Mr. Peter

was required to fill out a variety of paperwork related to this

motion, including a Form I-485, which asks: “Have you ever, in or

outside the U.S. . . . been arrested, cited, charged, indicted,

fined,    or   imprisoned    for   breaking   or   violating   any   law   or

ordinance, excluding traffic violations?” J.A. 5.                Mr. Peter

answered “no.” Id.          A separate question asked whether he had

“within the past 10 years been a prostitute or procured anyone for




     1
      The Peters’ son passed away in 1999.

                                      3
prostitution.” Id.   Mr. Peter answered “no” again. Id.         On July 22,

2004, the immigration judge granted the joint motion to reopen.

      After granting the motion, however, the judge learned that Mr.

Peter had been arrested for soliciting a prostitute in 1997.             The

immigration judge then sua sponte vacated his July 22 order and

denied the joint motion to reopen.              The judge found that the

information about the crime was concealed from the court and stated

that he would not have granted the motion initially had he been

aware of the incident.

      Mr. Peter then filed a motion to reconsider and an alternative

motion to reopen with the immigration judge.           His primary argument

was that the alleged misrepresentation was nonmaterial and that the

unique medical needs of his children warranted adjusting his

status.    In February 2005, the immigration judge denied these

motions, finding them “meritless.” J.A. 51.            The judge explained

that his decision to vacate was based on Mr. Peter’s concealment of

his solicitation incident from the court.            Because Peter did not

allege any error of law in the immigration judge’s exercise of

discretion, the judge denied the motion to reconsider.           The judge

also denied Mr. Peter’s motion to reopen as a matter of law and as

a matter of his discretion.      The motion was denied as a matter of

law because Mr. Peter was not admissible on two grounds: because he

(1) solicited a prostitute and (2) concealed his criminal record.

The   judge   concluded   that   Mr.       Peter’s   misrepresentation   was


                                       4
material.    The immigration judge also found that even if Peter had

been legally eligible for relief, he would have exercised his

discretion and denied the motion to reopen.

     After the immigration judge denied his motions, Mr. Peter

filed an appeal with the BIA.              He argued that the immigration judge

(1) denied him due process rights by vacating the earlier decision

without a full evidentiary hearing, (2) abused his discretion by

refusing     to     grant      Mr.       Peter      a     discretionary       waiver    of

inadmissibility, (3) erred in finding that the single act of

solicitation       was     enough        to      render    him      inadmissible    under

Immigration and Nationality Act (“INA”) § 212(a)(2)(D)(ii), and (4)

erred   as    a    matter      of    law      in    concluding       that   Mr.    Peter’s

misrepresentation was material.                    See J.A. 58-71. Mr. Peter also

argued that the immigration judge cited an incorrect statute as

grounds for finding him inadmissible.

     On    October       20,   2005,       the     BIA    adopted    and    affirmed   the

immigration       judge’s      decision       denying      Mr.   Peter’s     motions    to

reconsider and reopen.              The BIA found that the alleged errors of

law or fact were not supported in the record or the law, and it

also found that Mr. Peter was not prejudiced by the immigration

judge’s citation of the improper code section because Mr. Peter had

admitted     to    soliciting        a    prostitute        which     was   grounds    for

inadmissibility. See J.A. 74.                 Also, the BIA found that Mr. Peter

failed to make out a prima facie case for adjustment of status.


                                               5
The   BIA       noted    that   a   conviction      record   for   the    solicitation

incident was not required to establish inadmissibility because the

inadmissibility is not based on being convicted of a crime. 8

U.S.C.      §    1182(a)(2)(D).          Ultimately,    the     BIA   criticized   the

immigration judge’s decision to reverse the decision to reopen

prior to holding a hearing but found that this was not an error

worthy of remand.           After the BIA adopted the immigration judge’s

order, Mr. Peter filed a petition for review with this court.



                                            II.

                                               A.

      We first consider whether the BIA erred by affirming the

immigration        judge’s      denial    of    Mr.   Peter’s    motion    to   reopen.

Because we agree with the BIA that the immigration judge had the

authority to sua sponte reconsider his decision to grant the

motion, we find no error.

      We review a denial of a motion to reopen for an abuse of

discretion. INS v. Abudu, 485 U.S. 94, 104-05 (1988).                             “This

Court's review of a decision by the BIA denying a motion to reopen

is extremely deferential; we will not reverse the BIA absent an

abuse of discretion.” Stewart v. INS, 181 F.3d 587, 595 (4th Cir.

1999).      A party moving to reopen bears a heavy burden. Abudu, 485

U.S. at 110.            Motions to reopen “are disfavored. . . . This is

especially true in a deportation proceeding, where, as a general


                                               6
matter, every delay works to the advantage of the deportable alien

who wishes merely to remain in the United States.” INS v. Doherty,

502 U.S. 314, 323 (1992).   Federal regulations also clearly state

that an immigration judge “may upon his or her own motion at any

time . . . reopen or reconsider any case in which he or she has

made a decision, unless jurisdiction is vested with the Board of

Immigration Appeals.” 8 C.F.R. § 1003.23(b)(1).

     An immigration judge may deny a motion to reopen on at least

three different grounds: (1) for failure to establish a prima facie

case for the relief sought; (2) in the absence of previously

unavailable material evidence; and (3) where the ultimate relief is

discretionary, if the party fails to show he warrants the relief

sought as a matter of discretion. In Re Coelho, 20 I. & N. Dec.

464, 472 (BIA 1992).   Moreover, this court must uphold the BIA’s

affirmance of a denial of a motion to reopen unless it “(1) was

made without a rational explanation, (2) inexplicably departed from

established policies, or (3) rested on an impermissible basis such

as invidious discrimination against a particular race or group.”

M.A. v. INS, 899 F.2d 304, 310 (4th Cir. 1990) (superseded in part

by the 1996 adoption of 8 U.S.C. § 1229a(c)(6) creating a statutory

provision for motions to reopen) (quoting Oviawe v. INS, 853 F.2d

1428, 1431 (7th Cir. 1988)).

     Below, the BIA affirmed the immigration judge’s denial of the

motion to reopen on two of the grounds above.      First, the BIA

                                 7
affirmed the immigration judge’s denial of the motion to reopen on

the grounds that his discretion counseled against granting it

because Mr. Peter concealed the solicitation arrest.                  Second, the

BIA affirmed the immigration judge’s denial of the motion to reopen

because the judge found that Mr. Peter failed to establish a prima

facie case for adjustment of status.           Either of these grounds is an

independently sufficient basis on which to deny the motion. See

Abudu, 485 U.S. at 104-05.

     We    need    not     reach    the   question    of    whether       Mr.   Peter

established a prima facie case for relief, as even if he had, the

immigration judge had discretion to deny a motion to reopen.                        8

C.F.R. § 1003.23(b)(3). It is clear that where the ultimate relief

sought is discretionary, as it is for a motion to reopen, an

immigration judge may deny the relief if the party fails to show he

warrants the relief sought as a matter of discretion. See In Re

Coelho, 20 I. & N. Dec. 464, 472 (BIA 1992).               Mr. Peter argues that

because the judge initially granted the motion to reopen, he lacked

the authority to change his mind and deny it sua sponte.                    Federal

regulations state, however, that an immigration judge “may upon his

or her own motion at any time . . . reopen or reconsider any case

in which he or she has made a decision, unless jurisdiction is

vested    with    the    Board     of   Immigration   appeals.”       8    C.F.R.   §

1003.23(b)(1).          Both common sense and the regulations lead us to

the inescapable conclusion that if the immigration judge had the


                                          8
power to grant the motion to reopen, which is discretionary relief,

he had the power to deny it if jurisdiction had not vested in the

BIA, which it had not here.

     Also, the immigration judge clearly explained that he denied

the motion to reopen because Mr. Peter concealed his solicitation

arrest from the court.        As explained above, he filed statements

before the court denying ever having been arrested or soliciting a

prostitute. Mr. Peter had an opportunity to discuss the conviction

before   the   court   and   instead    proclaimed   that   his   record   was

“clean.”   Importantly, as we have explained, motions to reopen are

disfavored, and our review of the BIA and immigration judge’s

rulings is severely circumscribed. The immigration judge explained

(and the BIA reiterated) that Mr. Peter’s untruthfulness before the

tribunal was the reason for denying relief; we find that this was

rational, this was in line with established policies, and there is

no evidence that the ruling “rested on an impermissible basis such

as invidious discrimination against a particular race or group.”

See M.A., 899 F.2d at 310.              Therefore, we find no abuse of

discretion.




                                       B.

     We next consider whether the BIA erred by affirming the

immigration judge’s denial of Mr. Peter’s motion to reconsider.


                                       9
Again, because we agree with the BIA that the immigration judge had

the authority to sua sponte reconsider his decision to grant the

motion, we find no error.

        We review a motion to reconsider under the same “extremely

deferential” standard as a motion to reopen: abuse of discretion.

See Stewart, 181 F.3d at 595.         The BIA has explained that a motion

to reconsider is proper when a petitioner raises “additional legal

arguments, a change of law, or . . .an aspect of the case which was

overlooked.” In re Cerna, 20 I. & N. Dec. 399, 402 n.2 (BIA 1991).

As explained above, an immigration judge “may upon his or her own

motion at any time . . . reopen or reconsider any case in which he

or she has made a decision, unless jurisdiction is vested with the

Board of Immigration appeals.” 8 C.F.R. § 1003.23(b)(1).

     On appeal, Mr. Peter argues that the BIA erred as a matter of

law in holding that 8 C.F.R.§ 1003.23(b)(1) permits an immigration

judge   to   reconsider   a   prior    decision   at   any   time   prior   to

jurisdiction vesting with the BIA. Peter argues that the BIA erred

in affirming the immigration judge’s denial of the motion to

reconsider for two reasons: (1) because the judge lacked authority

to reconsider his prior decision sua sponte, and (2) both the judge

and the BIA relied improperly on contested facts regarding Peter’s

history of soliciting a prostitute.         We dismiss Mr. Peter’s first

argument on the same analysis that we affirm the court’s denial of

his motion to reopen above.      Again, federal regulations and common

                                       10
sense weigh in favor of our finding that the immigration judge had

the authority to reconsider his own decision sua sponte.                    See 8

C.F.R. § 1003.23(b)(1). We find that the immigration judge had the

authority to reconsider his prior decision and that the BIA was

within its discretion to affirm it.

       The essence of Mr. Peter’s second argument--that the BIA erred

in affirming the denial of his motion to reconsider--is that the

BIA    “based   its   decision     to   affirm   the    immigration      judge   in

substantial part on its misimpression that [Peter] had admitted

committing      the      crime    of    solicitation.”        In   Mr.     Peter’s

characterization of the facts, he did not admit to solicitation: he

merely admitted to being arrested for solicitation.                      He argues

that   legally     the   arrest   is    not   grounds   for    inadmissibility.

Rather, Mr. Peter argues, engaging in the act of solicitation

itself is grounds for inadmissibility.            The immigration judge did

not point to the act of solicitation as the reason for denying the

motion to reconsider; he denied the motion because Mr. Peter was

not truthful about the arrest and concealed it from the court.

Although     the   BIA    did    inaccurately     characterize     Mr.     Peter’s

admission as being to solicitation rather than an arrest for

solicitation, this was not the basis for the BIA’s affirmance of

the immigration judge’s decision.             Rather, the BIA found no clear

error warranting remand as the judge exercised his discretion

pursuant to federal immigration law.             Under the appropriate level


                                        11
of deference we must show to the BIA’s ruling, there is no abuse of

discretion warranting a reversal on this issue. See Stewart, 181

F.3d at 595.




                                      C.

     We   next   consider   whether    the   immigration   judge   and   BIA

violated Mr. Peter’s due process rights by denying his motions

without a hearing.    We also find no due process violation.

     We review due process claims de novo.         Blanco de Belbruno v.

Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004).        Although the Supreme

Court has made it clear that a lawful alien may not be deprived of

liberty without due process, Matthews v. Diaz, 426 U.S. 67, 77

(1976), a petitioner cannot mount a due process claim without first

showing that he has a protected liberty or property interest at

stake, Board of Regents of State Colls. v. Roth, 408 U.S. 564, 569-

70 (1972).   We have “held that discretionary statutory ‘rights’ do

not create liberty or property interests protected by the Due

Process Clause” and that the right to suspension of deportation is

just such a discretionary right. Smith v. Ashcroft, 295 F.3d 425,

430 (4th Cir. 2002).

     As we find that there is no protected right at issue, there

can be no due process violation here.        There must be entitlement to

a benefit to constitute a protected right, in contrast to a


                                      12
discretionary       benefit,   and   here,    the   benefit   in   question   is

adjustment of status which is discretionary in nature. See id. at

430.       Mr. Peter argues that the immigration judge violated his due

process rights when he initially scheduled a hearing on his motions

and then cancelled it after finding out that Mr. Peter had lied

about his solicitation arrest.              This argument fails because it

ignores the threshold requirement that there be a protected right

at issue.       Our precedent dictates that a discretionary right does

not give rise to a due process claim. See id. at 425.               Therefore,

we hold that Mr. Peter has no due process claim.




                                      III.

       In conclusion, we hold that the immigration judge was within

his authority to deny Mr. Peter’s motions and that there was no due

process violation.2       It is hereby ordered that the order of the

Board of Immigration Appeals is

                                                                     AFFIRMED.




       2
      In so concluding we recognize that further recourse remains
open to the Peters. As the government acknowledged during oral
argument, the Peters may still petition for relief from the
Attorney General.     Given the unique medical needs of their
daughter, we are confident that the government will give due
consideration to their request for relief.

                                       13
