Noel U. Udarbe v. Alberto R. Gonzales

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 2, 2005
Decided May 16, 2005
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-2164
NOEL U. UDARBE,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
Petition for Review of
an Order of the Board of
Immigration Appeals
No. A38-052-399
O R D E R
Noel Udarbe, a native and citizen of the Philippines, has been a lawful permanent resident
of the United States since his arrival in 1982. In 2001, Udarbe pled guilty and was convicted of
battery in Indiana and sentenced to one year in jail. Finding that to be a conviction for an
aggravated felony, the INS charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii). In the
course of the removal proceedings, Udarbe admitted that he had been convicted but claimed that
his conviction should not qualify as an aggravated felony. He argued that removing him under
that provision violated his Fifth Amendment rights because if he had been convicted of the same
crime in Illinois, the maximum sentence would have been 364 days, meaning that he would not
have been convicted of a felony.
The immigration judge found Udarbe removable. Udarbe appealed, again admitting his
conviction and sentence but repeating his equal protection argument. The Board of Immigration
Appeals dismissed Udarbe’s appeal, stating that it did not “have the authority to rule on the
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 04-2164 2
constitutionality of the Act . . . .” Udarbe filed a motion to reconsider, which the Board also
denied. Udarbe appeals that decision, arguing again that his constitutional rights were violated
and that the Board erred in determining that it did not have the authority to rule on his
constitutional claims.
Unfortunately for Udarbe, we don’t have the authority to examine the merits of his
constitutional argument, either. On July 19, 2004, we issued an order explaining that, because
Udarbe did not file a timely petition for review of the Board’s initial decision, this appeal is limited
to review of the Board’s April 6, 2004, denial of Udarbe’s motion to reconsider. In that order,
the Board stated simply that Udarbe “failed to show any particular errors of fact or law in our
prior decision,” noting that Udarbe instead simply repeated constitutional arguments the Board
had previously considered.
In this appeal, Udarbe does not dispute the Board’s contention that he failed to present
any new facts or evidence in his motion for reconsideration. Therefore, we find no error in the
Board’s order denying Udarbe’s motion for reconsideration. And, as we explained in our July 19
order, our review is limited to that decision, so we do not have jurisdiction to consider Udarbe’s
claim that the Board erred in its initial decision not to consider Udarbe’s constitutional arguments.
The petition to review the denial of the petition for reconsideration is therefore DENIED.

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