                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                            U.S.
                                    ________________________ ELEVENTH CIRCUIT
                                                                          JULY 28, 2011
                                            No. 11-10038                   JOHN LEY
                                        Non-Argument Calendar                CLERK
                                      ________________________

                                           Agency No. A097-491-774


HILARIA VELASQUEZ,

llllllllllllllllllllllllllllllllllllllll                                           Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                        Respondent.

                                     ________________________

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

                                               (July 28, 2011)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:

         Hilaria Velasquez, a native and citizen of Mexico proceeding pro se,
petitions for review of the BIA’s order denying her motion to reopen her removal

proceedings. Velasquez argues that the BIA should have granted her motion to

reopen because she presented new, material evidence regarding her mental health

problems and deteriorating country conditions in Mexico. Velasquez also

contends that the denial of her motion violated her right to due process. For the

reasons stated below, we dismiss the petition for review in part and deny it in part.

                                           I.

      As an initial matter, we must consider whether we may exercise jurisdiction

over Velasquez’s petition for review. We review our own subject matter

jurisdiction de novo. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir.

2006). We lack jurisdiction to consider the BIA’s discretionary determination that

an alien has failed to establish eligibility for cancellation of removal, but we retain

jurisdiction to consider constitutional claims or questions of law. INA

§ 242(a)(2)(B)(i), (a)(2)(D), 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); Martinez, 446

F.3d at 1221–22.

      We have explained that we may not review an order denying a motion to

reopen if we also would lack jurisdiction to review the underlying order of

removal. Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1262 (11th Cir. 2003). In Patel,

the petitioner was charged with being removable due to a conviction for an

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aggravated felony. Id. at 1260 Patel initially waived his right to a hearing and

consented to removal, but later moved to reopen his case. Id. at 1260-61. After

the BIA denied the motion to reopen, Patel petitioned for review of the BIA’s

decision. Id. at 1261.

      We observed that our authority to review an order denying a motion to

reopen was implicit in 8 U.S.C. § 1252(a)(1), which authorizes Courts of Appeals

to review final orders of removal. Id. We then recognized that our jurisdiction

under § 1252(a)(1) was limited by the provisions of § 1252(a)(2)(C), which

provides that no court may review a final order of removal that is based on an

alien’s conviction for an aggravated felony. Id. at 1262. We concluded, “Just as

this jurisdiction-stripping provision would have deprived us of jurisdiction to

entertain an attack on the final order of removal if Patel had chosen to contest

removal, so, too, it strips us of jurisdiction to entertain an attack on that order

mounted through filing of a motion to reopen.” Id.

      Recently, the Supreme Court explained that federal courts generally have

jurisdiction to review orders denying motions to reopen. Kucana v. Holder, 558

U.S. ___, ___, 130 S.Ct. 827, 840, 175 L.Ed.2d 694 (2010). In so holding,

however, the Supreme Court reserved judgment as to whether a court may review

a motion to reopen if it would lack jurisdiction to review the petitioner’s

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underlying claim for relief. Id. at ___, 130 S.Ct. at 839 n.17. Thus, Kucana does

not affect the validity of Patel, which remains binding precedent in this Circuit.

See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (explaining that

a published decision of this Court “is binding on all subsequent panels unless and

until it is overruled or undermined to the point of abrogation by the Supreme

Court or by this court sitting en banc.”).

      Our reasoning in Patel dictates the outcome of this case. Had Velasquez

sought review of the BIA’s original order denying her application for cancellation of

removal, 8 U.S.C. § 1252(a)(2)(B)(i) would have deprived us of jurisdiction to

consider her petition. Therefore, § 1252(a)(2)(B)(i) also precludes us from reviewing

Velasquez’s attempt to challenge that order through a motion to reopen. See Patel,

334 F.3d at 1262. Accordingly, to the extent that Velasquez is arguing that the BIA

abused its discretion by denying her motion to reopen, we must dismiss the petition

for lack of jurisdiction.

                                         III.

      As noted above, the jurisdictional limitations in 8 U.S.C. § 1252(a)(2) do

not preclude us from reviewing constitutional or legal claims. 8 U.S.C.

§ 1252(a)(2)(D); Martinez, 446 F.3d at 1221–22. Therefore, we may consider the

merits of Velasquez’s due process claim. To establish a due process violation, an

                                             4
alien must show that she was deprived of liberty without due process of law, and

that she suffered substantial prejudice. Scheerer v. U.S. Att’y Gen., 513 F.3d

1244, 1253 (11th Cir. 2008). Purely discretionary forms of relief do not create a

protected liberty interest, and, thus, the denial of such relief can never violate due

process. Id.

      In this case, Velasquez has not established a due process violation. A motion

to reopen is a discretionary form of relief that does not give rise to a protected liberty

interest. See 8 C.F.R. 1003.2(a) (“The Board has discretion to deny a motion to

reopen even if the party moving has made out a prima facie case for relief.”);

Scheerer, 513 F.3d at 1253. As a result, Velasquez cannot show that the BIA’s denial

of that motion violated due process. See id. Accordingly, we deny the petition for

review with respect to Velasquez’s due process claim.

      PETITION DISMISSED IN PART, DENIED IN PART.




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