           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           March 18, 2009
                                     No. 08-60370
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ALI NAWAZ

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U S ATTORNEY GENERAL

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A95 319 982


Before HIGGINBOTHAM, BARKSDALE, AND ELROD, Circuit Judges.
PER CURIAM:*
       Ali Nawaz, a citizen and native of Pakistan, petitions this court for review
of the Board of Immigration Appeals’ (BIA) order denying his motion for
reconsideration of the denial of his motion to reopen removal proceedings. He
has moved for a stay of removal during the pendency of his petition for review.
       Nawaz concedes that his motion to reopen was untimely but argues that
the BIA abused its discretion by denying his motion for reconsideration because
the BIA should have reopened his removal proceedings pursuant to its authority

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-60370

to reopen removal proceedings sua sponte. He maintains that the BIA abused
its discretion because it did not address all of the factors he raised showing that
he met his burden of demonstrating exceptional circumstances and because it
did not provide a reasoned explanation to support its ruling.           He further
contends that the BIA erroneously concluded that he was not eligible to adjust
his status because he had effectively withdrawn his request for voluntary
departure prior to the expiration of the time allowed for voluntary departure.
      In Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249-50 (5th Cir. 2004),
this court held that it did not have jurisdiction to review a decision not to reopen
removal proceedings sua sponte because there is no meaningful standard against
which to judge the exercise of discretion in making such a decision. Nawaz
acknowledges the ruling in Enriquez-Alvarado, but asserts that Enriquez-
Alvarado was wrongly decided. Regardless of the merits of Nawaz’s challenge
to the ruling in Enriquez-Alvarado, we may not overturn the ruling of the panel
in that case because there has not been an intervening change in law. See
Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
Accordingly, we do not have jurisdiction to review the BIA’s decision not to
reopen Nawaz’s removal proceedings sua sponte. See Enriquez-Alvarado, 371
F.3d at 249-50. As we do not have jurisdiction to review the BIA’s decision not
to reopen Nawaz’s removal proceedings sua sponte, we do not reach the BIA’s
alternative determination that Nawaz was ineligible for adjustment of status
consideration for a period of 10 years because he had not departed the United
States in the time allowed.
      In addition to his non-constitutional challenges to the BIA’s denial of his
motion for reconsideration, Nawaz argues that the BIA violated his due process
rights in its denial of his motion for reconsideration. Nawaz asserts that the BIA
denied his due process rights to a full and fair hearing and a reasonable
opportunity to present evidence by not considering evidence and arguments he
presented.

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      While we do not have jurisdiction to consider Nawaz’s non-constitutional
challenges to the BIA’s refusal to reopen his removal proceedings sua sponte, we
retain jurisdiction to consider constitutional challenges that were raised before
the BIA. See 8 U.S.C. § 1252(a)(2)(D); Mai v. Gonzales, 473 F.3d 162, 164 (5th
Cir. 2006). We review constitutional claims de novo. Heaven v. Gonzales, 473
F.3d 167, 171 (5th Cir. 2006).
      Although Nawaz styles his challenge as a due process claim, his argument
is that the BIA did not sufficiently consider his evidence and arguments because
it did not sufficiently discuss the evidence and arguments in its ruling. These
alleged deficiencies in the BIA’s ruling do not rise to the level of a due process
violation. See Toscano-Gil v. Trominski, 210 F.3d 470, 474 (5th Cir. 2000).
Furthermore, the reasoning provided in the BIA’s ruling was sufficient as it
demonstrated that it had considered the issues raised and had “heard and
thought and not merely reacted.” Yahkpua v. INS, 770 F.2d 1317, 1321 (5th Cir.
1985) (quoting Osuchukwu v. INS, 744 F.2d 1136, 1142-43 (5th Cir. 1984)).
      PETITION FOR REVIEW DENIED; MOTION FOR STAY OF REMOVAL
DENIED.




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