 MARIE DELORAS JEAN, a/k/a Marie Dolores Jean, a/k/a Marie Dolores Duversaint,… v. ALBERTO R. GONZALES, Attorney General

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MARIE DELORAS JEAN, a/k/a Marie
Dolores Jean, a/k/a Marie Dolores
Duversaint, a/k/a Marie Dolores
Jean-Duversaint,
Petitioner, No. 04-2292 
v.
ALBERTO R. GONZALES, Attorney
General,
Respondent. 
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A91-563-585)
Argued: October 26, 2005
Decided: January 27, 2006
Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.
Petition for review dismissed in part and denied in part by published
opinion. Judge Traxler wrote the opinion, in which Judge Wilkinson
and Judge Williams joined.
COUNSEL
ARGUED: Mary Ann Berlin, Baltimore, Maryland, for Petitioner.
Bryan Stuart Beier, UNITED STATES DEPARTMENT OF JUS-
TICE, Office of Immigration Litigation, Washington, D.C., for

-- 1 of 14 --

Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney Gen-
eral, Civil Division, M. Jocelyn Lopez Wright, Assistant Director,
Office of Immigration Litigation, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.
OPINION
TRAXLER, Circuit Judge:
Marie Deloras Jean petitions for review of an order of the Board
of Immigration Appeals ("BIA") denying her motion to reconsider the
BIA’s denial of her applications for cancellation of removal and for
a waiver of inadmissibility. We dismiss her petition for lack of juris-
diction to the extent that it challenges the BIA’s refusal to reconsider
the denial of a waiver of inadmissibility. Finding no abuse of discre-
tion by the BIA as to the remainder of Jean’s claims, we deny them.
I.
In April 1997, the Immigration and Naturalization Service ("INS"),
now known as the Department of Homeland Security, placed Jean, a
native and citizen of Haiti, in removal proceedings as "[a]n alien pres-
ent in the United States without being admitted or paroled." 8
U.S.C.A. § 1182(a)(6)(A)(i) (West 1999). Although Jean conceded
removability, she applied for discretionary relief in the form of can-
cellation of removal, see 8 U.S.C.A. § 1229b(b)(1) (West Supp.
2005), or, alternatively, voluntary departure, see 8 U.S.C.A. § 1229c
(West 1999 & Supp. 2005). The immigration judge, however, con-
cluded that Jean was statutorily ineligible for cancellation of removal
for failure to establish the requisite "good moral character," based on
his factual determination that Jean was not truthful during the pro-
ceedings about her criminal history. See 8 U.S.C.A. § 1229b(b)(1)(B).1
1The relevant statute provides as follows:
The Attorney General may cancel removal of, and adjust to the
status of an alien lawfully admitted for permanent residence, an
alien who is inadmissible or deportable if the alien—
2 JEAN v. GONZALES

-- 2 of 14 --

Specifically, the immigration judge noted that Jean "indicated on
her application for cancellation of removal and during direct examina-
tion that she was not arrested or convicted of any crimes" but then
admitted during cross examination "that in fact she had been arrested
for petty larceny and ultimately convicted of disorderly conduct." J.A.
16. Jean also admitted that she had been "arrest[ed] during the pen-
dency of these proceedings for multiple charges [of] credit card
fraud." Id. The immigration judge concluded Jean’s "failure to make
full disclosure of her criminal history both in her application and
direct testimony" were "material omissions under oath made to avoid
discovery of facts adverse to her application" that "preclude[d] a find-
ing of good moral character." J.A. 16-17. See 8 U.S.C.A. § 1101(f)(6)
(West 1999 & Supp. 2005) (precluding a finding of good moral char-
acter for an alien "who has given false testimony for the purpose of
obtaining . . . benefits under [the INA]"). The immigration judge fur-
ther suggested that a finding of good moral character was prohibited
because Jean admitted committing "crimes of moral turpitude." J.A.
16. See 8 U.S.C.A. § 1101(f)(3); 8 U.S.C.A. § 1182(a)(2)(A). Alterna-
tively, the immigration judge concluded that Jean was ineligible for
cancellation of removal because she failed to establish that her
removal would result "in exceptional and extremely unusual hard-
ship." 8 U.S.C.A. § 1229b(b)(1)(D). Finally, the immigration judge
refused to grant voluntary departure and entered an order of removal
in June 1998.
(A) has been physically present in the United States for a
continuous period of not less than 10 years . . . ;
(B) has been a person of good moral character during such
period;
(C) has not been convicted of [certain enumerated criminal
offenses]; and
(D) establishes that removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or
child, who is a citizen of the United States or an alien law-
fully admitted for permanent residence.
8 U.S.C.A. § 1229b(b)(1)(B) (emphasis added).
3 JEAN v. GONZALES

-- 3 of 14 --

Jean appealed to the BIA, arguing that the record did not support
the immigration judge’s finding that Jean testified falsely. Jean argued
that "[a]t worst, her testimony was equivocal and convey[ed] a tre-
mendous amount of confusion" and could not be construed as inten-
tionally false. J.A. 30. While the appeal was pending, Congress
enacted the Haitian Refugee Immigration Fairness Act of 1998
("HRIFA"), Pub. L. No. 105-277, § 901, 112 Stat. 2681 (1998), which
allows certain Haitian nationals to seek lawful permanent resident sta-
tus without having to surmount the standard barriers faced by other
immigrants. Ordinarily, for example, an immigrant seeking to adjust
his status must have been "inspected and admitted or paroled into the
United States." 8 U.S.C.A. § 1255(a) (West Supp. 2005); see 8 C.F.R.
§ 1245.1(b)(3) (2005). A Haitian national, however, may be eligible
for an adjustment of status even though he was never officially
inspected and admitted into the United States. See 8 C.F.R.
§ 1245.15(b). One of the biggest advantages is that an applicant for
permanent resident status under HRIFA is relieved of the burden of
proving that he "is eligible to receive an immigrant visa and is admis-
sible to the United States for permanent residence." 8 U.S.C.A.
§ 1255(a); see 8 U.S.C.A. § 1182(a) (West 1999 & Supp. 2005) (list-
ing classes of aliens ineligible for immigrant visas or admission to the
United States).
Under HRIFA, many inadmissibility grounds that render other
aliens ineligible for visas do not apply to qualified Haitian nationals.
For example, qualifying applicants under HRIFA are not inadmissible
on the grounds that they entered illegally or that they are likely to
become a public charge. See 8 U.S.C.A. §§ 1182(a)(4)(A), (6)(A)(i)
(West 1999); 8 C.F.R. § 1245.15(e)(1). While certain grounds for
inadmissibility still apply to HRIFA applicants, the applicant may
seek a waiver of inadmissibility under section 212 of the Immigration
and Nationality Act ("INA"), as would any other alien seeking to
establish visa eligibility. See 8 C.F.R. § 1245.15(e)(2). For example,
an applicant seeking relief under HRIFA is inadmissible, and thus not
eligible for an adjustment of status, if he has been convicted of "a
crime involving moral turpitude." 8 U.S.C.A. § 1182(a)(2)(A)(i)(I);
see 8 C.F.R. § 1245.15(e)(1). The Attorney General has the discretion
to grant a waiver of this particular ground of inadmissibility, provided
certain statutory requirements are "established to the satisfaction of
4 JEAN v. GONZALES

-- 4 of 14 --

the Attorney General." 8 U.S.C.A. § 1182(h)(1)(A) (West Supp.
2005).
Before the BIA had ruled on the merits of her appeal, Jean moved
to have her status adjusted under HRIFA. In November 1999, the BIA
remanded the case to the immigration judge for consideration of
Jean’s application for relief under HRIFA. On December 10, 1998,
during the time that her appeal to the BIA was pending, Jean was con-
victed of petty theft in Prince George’s County, Maryland, for which
she received probation. Because this offense qualified as "a crime
involving moral turpitude," 8 U.S.C.A. § 1182(a)(2)(A)(i)(I), which
constitutes grounds for finding Jean inadmissible and therefore ineli-
gible for relief under HRIFA, see 8 C.F.R. §§ 1245.15(b)(3), (e)(1),
the parties agreed Jean was required to seek a waiver of inadmissibil-
ity in order to be eligible for an adjustment of status.
At the hearing on Jean’s request for a waiver of inadmissibility,
evidence of Jean’s criminal history included an April 1998 arrest for
possession of stolen property and forgery; the December 1998 convic-
tion for theft; and December 1999 charges for theft, forgery, and
credit card fraud. In light of this evidence, the immigration judge con-
tinued the case to afford Jean "an opportunity to demonstrate good
moral character and rehabilitation from her criminal past." J.A. 47.
Ultimately, after continuing the case for a second time, the immigra-
tion judge held a final hearing in June 2002. In the interim, Jean had
been charged with three counts of leaving a child unattended.
On August 27, 2002, the immigration judge entered an order deny-
ing Jean’s application for waiver of inadmissibility. Although the
immigration judge found that Jean "introduced sufficient evidence to
establish ‘extreme hardship,’ and was therefore eligible for a waiver,
the judge concluded that Jean "failed to demonstrate that she merits
relief as a matter of discretion." J.A. 49. Applying the factors articu-
lated by the BIA in Matter of Marin, 16 I. & N. Dec. 581, 584-85
(BIA 1978), the immigration judge concluded that the factors adverse
to the favorable exercise of discretion — primarily Jean’s record of
criminal activity and failure to rehabilitate herself — outweighed
favorable factors including Jean’s lengthy presence in the United
States from an early age, her traumatic childhood, and the likelihood
that her removal would result in hardship for her children.
5 JEAN v. GONZALES

-- 5 of 14 --

On April 30, 2004, the BIA issued a decision adopting and affirm-
ing both the June 5, 1998, decision of the immigration judge denying
cancellation of removal and voluntary departure and the August 27,
2002, decision denying a waiver of inadmissibility. The BIA summa-
rized its decision as follows:
We note that several equities are present in this case, including
the length of the respondent’s residence in the United States, as
well as the presence of her three United States citizen children.
Nonetheless, we agree that the respondent has failed to demon-
strate good moral character required for cancellation of removal
and voluntary departure, and that she does not merit a favorable
exercise of discretion in adjudicating her application for a waiver
of inadmissibility . . . so as to allow her to adjust status under
HRIFA.
J.A. 81.
Jean did not petition for judicial review of this decision. Instead,
she filed a motion for the BIA to reconsider its decision of April 30,
2004. With respect to the BIA’s denial of cancellation of removal,
Jean essentially restated her original argument to the BIA that she did
not lie under oath about her criminal history and that the immigration
judge simply misunderstood the testimony in so concluding. Jean also
argued that the BIA erred in adopting the immigration judge’s refusal
to grant a third continuance for Jean to find representation. On Sep-
tember 17, 2004, the BIA denied this motion as it could "find no new
legal argument or particular aspect of the case which was overlooked
and no ground upon which to reconsider our previous decision." J.A.
133.2
2Jean also filed a motion to reopen to allow her to introduce new evi-
dence of her rehabilitation. The BIA concluded that the additional facts
submitted by Jean in support of her motion to reopen were merely "cu-
mulative of evidence which was of record at the time of [the BIA’s]
April 30, 2004, order." J.A. 133. The BIA also refused to reopen on the
basis of Jean’s assertion that she received ineffective legal counsel, con-
cluding that Jean failed to meet the requirements necessary to establish
a claim for ineffective assistance of counsel. In her petition for review,
Jean does not challenge the BIA’s refusal to reopen.
6 JEAN v. GONZALES

-- 6 of 14 --

Jean then petitioned this court for review of the BIA’s denial of her
motion to reconsider. Jean raises two arguments. First, she contends
that the BIA erred in adopting the immigration judge’s original denial
of relief which, according to Jean, rested on misstatements of fact.
Second, Jean contends that she suffered a constitutional deprivation
to the extent that the BIA refused to reconsider its adoption of the
immigration judge’s denial of a continuance.
II.
Because the underlying BIA decision involved the denial of discre-
tionary relief from removal, we are obliged to verify our jurisdiction
to review Jean’s claims. Under the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA"), Congress sharply
circumscribed judicial review of various categories of BIA decisions,
including denials of discretionary relief under certain enumerated pro-
visions of the INA:
(2) Matters not subject to judicial review
. . .
(B) Denials of discretionary relief
Notwithstanding any other provision of law, no court
shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under
section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title,
or
(ii) any other decision or action of the Attorney General
the authority for which is specified under this subchapter to
be in the discretion of the Attorney General, other than the
granting of relief under section 1158(a) of this title.
8 U.S.C.A. § 1252(a)(2)(B) (West 1999). Because decisions under
sections 1182(h) and 1229b are included, this provision precludes
judicial review of "any judgment regarding the granting of" waivers
7 JEAN v. GONZALES

-- 7 of 14 --

of inadmissibility, see 8 U.S.C.A. § 1182(h), and cancellation of
removal, see 8 U.S.C.A. § 1229b(b)(1). Although section
1252(a)(2)(B) appears, by its terms, to create an unqualified bar to
judicial review of decisions involving the specified types of discre-
tionary relief, many courts concluded that the statute was intended to
eliminate judicial review of agency decisions resting on the exercise
of discretion, but that "non-discretionary legal determinations regard-
ing an alien’s eligibility" for such relief fell outside of the
jurisdiction-stripping language of section 1252(a)(2)(B) and were thus
subject to direct review by the courts of appeal. Moran v. Ashcroft,
395 F.3d 1089, 1091 (9th Cir. 2005); see Morales-Morales v. Ash-
croft, 384 F.3d 418, 421-22 (7th Cir. 2004); Mendez-Moranchel v.
Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003). This court has not
weighed in on the scope of subsection (a)(2)(B) in the present context,
but recently enacted legislation amending the judicial review provi-
sion makes it unnecessary to do so.
In May 2005, Congress enacted the REAL ID Act of 2005, Pub.
L. No. 109-13, 119 Stat. 231 (2005), essentially confirming the pre-
vailing view on the scope of jurisdictional limitations imposed by sec-
tion 1252(a)(2)(B). The new language provides that "[n]othing in
subparagraph (B) or (C), or any other provision of this chapter (other
than this section) which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or questions
of law raised upon a petition for review filed with an appropriate
court of appeals in accordance with this section." 8 U.S.C.A.
§ 1252(a)(2)(D). Following the enactment of the REAL ID Act, there-
fore, direct judicial review is available for constitutional questions or
questions of law arising from the agency’s decision to deny discre-
tionary relief. See Higuit v. Gonzales, ___ F.3d ___, 2006 WL 9606
at *2 (4th Cir. Jan. 3, 2006); see also Rodriguez-Castro v. Gonzales,
427 F.3d 316, 319 (5th Cir. 2005). To the extent that a petition asks
us to review a discretionary or factual determination, however, we
still lack jurisdiction. See Vasile v. Gonzales, 417 F.3d 766, 768 (7th
Cir. 2005) (explaining that "discretionary or factual determinations
continue to fall outside the jurisdiction of the court of appeals enter-
taining a petition for review"); see also Schroeck v. Gonzales, 429
F.3d 947, 951 (10th Cir. 2005); Grass v. Gonzales, 418 F.3d 876,
878-79 (8th Cir. 2005). Accordingly, it is critical for us to determine
whether the petition for review presents a legal or constitutional chal-
8 JEAN v. GONZALES

-- 8 of 14 --

lenge to the agency’s decision or whether the petition seeks review of
a discretionary determination by the BIA.
A. Motion to Reconsider Denial of a Waiver of Inadmissibility
To the extent Jean’s petition for review challenges the BIA’s
refusal to reconsider the denial of a waiver of inadmissibility, we lack
jurisdiction. As explained above, the BIA unquestionably denied Jean
relief under section 1182(h) as a matter of discretion. Jean does not
contend that the BIA applied the wrong standard or made an error of
law in refusing to grant a waiver of inadmissibility. Jean argues only
that the immigration judge drew the wrong factual conclusions from
the evidence and then determined these conclusions outweighed any
factors supporting a favorable exercise of discretion. In turn, Jean
contends the BIA perpetuated this error by adopting the immigration
judge’s inaccurate view of the evidence. These are discretionary deci-
sions, however, that we have no jurisdiction to review.
We realize, of course, that the merits of the underlying denial of
a waiver of inadmissibility are not before us. Ordinarily, we review
the BIA’s decision to grant or deny a motion to reconsider for abuse
of discretion. See Zhong Guang Sun v. United States Dep’t of Justice,
421 F.3d 105, 107 (2d Cir. 2005); cf. Stewart v. INS, 181 F.3d 587,
595 (4th Cir. 1999) (applying abuse of discretion standard to review
of denial of motion to reopen). And, although the decision on a
motion to reconsider is itself discretionary, the jurisdictional limita-
tions imposed by section 1252(a)(1)(B) do not preclude judicial
review. See Obioha v. Gonzales, ___ F.3d ___, 2005 WL 3312762
(4th Cir. Dec. 8, 2005).
In this case, however, the fact that we are technically reviewing the
BIA’s denial of the motion to reconsider certainly does not afford us
jurisdiction to consider Jean’s argument. When the BIA refuses to
reconsider the discretionary denial of relief under one of the provi-
sions enumerated in 1252(a)(2)(B) — a decision which is not subject
to review in the first place — the court will not have jurisdiction to
review that same denial merely because it is dressed as a motion to
reconsider. It is important to remember that Jean is in a less favorable
posture now than if she had timely sought judicial review of the
BIA’s original denial, which was unreviewable in any event. As the
9 JEAN v. GONZALES

-- 9 of 14 --

Fifth Circuit reasoned, "[i]t is axiomatic that if we are divested of
jurisdiction to review an original determination by the [BIA] that an
alien has failed to establish" that he merits a favorable exercise of dis-
cretion for a waiver of inadmissibility, "we must also be divested of
jurisdiction to review the [BIA]’s denial of a motion to re[consider]
on the ground that the alien . . . still [does not merit the favorable
exercise of discretion]." Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th
Cir. 2001) (per curiam). Otherwise, there would exist a "loophole"
through which we "would thwart the clear intent of Congress that the
courts not review the discretionary decisions of the BIA." Id. By con-
trast, when the BIA’s denial of a motion to reconsider "ha[s] the
effect of affirming the BIA’s previous decisions denying . . . cancella-
tion of removal . . . based on statutory ineligibility," we do not lack
jurisdiction. Sepulveda v. Gonzales, 407 F.3d 59, 64 (2d Cir. 2005)
(emphasis added); see id. (explaining that the court of appeals has
jurisdiction to review the BIA’s decision on a motion to reconsider
that is "‘sufficiently connected’ to the final order of removal based on
nondiscretionary factors").
In this case, Jean’s petition for review reasserts the same arguments
she raised in her motion for reconsideration and in her appeal to the
BIA: that the immigration judge drew the wrong conclusions from the
evidence and the BIA, in adopting these conclusions, erroneously
decided not to exercise its discretion to grant a waiver of inadmissibil-
ity. Jean’s opening brief includes a heading that suggests she is seek-
ing review of the BIA’s "fail[ure] to address" her claims in denying
the motion to reconsider. Brief of Petitioner at 10. See Casalena v.
INS, 984 F.2d 105, 107 (4th Cir. 1993) (explaining that the BIA must
explain its decisions "in terms sufficient to enable a reviewing court
to perceive that it has heard and thought and not merely reacted")
(internal quotation marks omitted). Jean fails to develop this argument
further, however, reverting to her basic contention that the record
does not support the discretionary refusal to grant relief under section
1182(h). Thus, we lack jurisdiction to review Jean’s petition to the
extent it challenges the refusal to reconsider the denial of a waiver of
inadmissibility.
B. Motion to Reconsider Denial of Cancellation of Removal
To the extent that Jean’s motion for reconsideration challenges the
BIA’s denial of her request for cancellation of removal, we conclude
10 JEAN v. GONZALES

-- 10 of 14 --

that we have jurisdiction. As noted above, cancellation of removal is
a discretionary form of relief, like a waiver of inadmissibility, falling
within the scope of the jurisdiction-stripping language in section
1252(a)(2)(B)(i). Again, such decisions are not subject to judicial
review to the extent they rest on the actual exercise of discretion by
the BIA.
In this case, unlike the BIA’s discretionary refusal to waive inad-
missibility, the BIA’s conclusion that Jean was statutorily precluded
from demonstrating good moral character, rendering her ineligible for
cancellation of removal, was not a discretionary decision. Jean’s
claim nevertheless fails because the BIA did not abuse its discretion
in denying the motion to reconsider the denial of cancellation of
removal.
As explained previously, the immigration judge concluded Jean
was ineligible for cancellation of removal on alternative grounds: that
she was precluded from being found "a person of good moral charac-
ter," 8 U.S.C.A. § 1229b(b)(1)(B), and that her removal would not
result "in exceptional and extremely unusual hardship," 8 U.S.C.A.
§ 1229b(b)(1)(D). Although the BIA adopted and affirmed this deci-
sion, it specifically noted that Jean "failed to demonstrate good moral
character required for cancellation of removal." J.A. 81. The BIA’s
failure to rely specifically on the immigration judge’s conclusion that
Jean failed to establish extreme hardship was understandable in view
of the fact that, in Jean’s subsequent waiver of inadmissibility hear-
ing, a second immigration judge determined that Jean did, in fact,
submit sufficient evidence to establish that removal would result in
extreme hardship. We proceed, therefore, with the understanding that
the BIA’s denial of Jean’s application for cancellation of removal
rested solely on the grounds that she was not able to satisfy the good
moral character element.
The question becomes whether the decision that Jean was "pre-
cluded" from establishing "good moral character" was discretionary
in nature. Consideration of the "good moral character" prerequisite for
cancellation of removal requires reference to the general definition
provision of the INA, which establishes a number of per se categories
that, if applicable, bar an alien from establishing his "good moral
character." See 8 U.S.C.A. § 1101(f) (West 1999 & Supp. 2005).
11 JEAN v. GONZALES

-- 11 of 14 --

These ineligible categories include aliens "who ha[ve] given false tes-
timony for the purpose of obtaining any benefits under this chapter,"
8 U.S.C.A. § 1101(f)(6), and aliens who have committed crimes of
moral turpitude, see 8 U.S.C.A. § 1101(f)(3). Section 1101(f) also
provides a catch-all provision: "The fact that any person is not within
any of the foregoing classes shall not preclude a finding that for other
reasons such person is or was not of good moral character."
The decision that an alien falls within one or more of the ineligible
per se categories is not a discretionary decision. It is essentially a
legal determination involving the application of law to factual find-
ings. See Ikenokwalu-White v. INS, 316 F.3d 798, 803 (8th Cir. 2003);
see also Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.
2003); Bernal-Vallejo v. INS, 195 F.3d 56, 62 (1st Cir. 1999). We
conclude, therefore, that whether the BIA erred in determining that
Jean was precluded from establishing good moral character based on
her false testimony and crimes of moral turpitude presents a review-
able decision. See 8 U.S.C.A. § 1252(a)(2)(D).
Of course, Jean failed to petition for judicial review of the BIA’s
underlying denial of relief. Therefore, our review is limited to the
motion to reconsider the denial of cancellation of removal. A motion
to reconsider asserts that the BIA made an error "of fact or law" in
the underlying decision. 8 C.F.R. § 1003.2(b)(1) (2005). The BIA
enjoys broad discretion to grant or deny a motion to reconsider, and
thus we will reverse only for an abuse of discretion. See Zhong Guang
Sun, 421 F.3d at 107. In applying this standard, we must affirm the
BIA’s denial unless it lacked a "rational explanation," "departed from
established policies," or "rested on an impermissible basis." M.A. v.
INS, 899 F.2d 304, 310 (4th Cir. 1990) (en banc).
In her motion to reconsider, Jean simply repackaged her original
argument that the immigration judge incorrectly concluded that she
testified falsely and should have instead found that Jean was simply
confused by counsel’s misleading questions. The BIA could "find no
new legal argument or particular aspect of the case which was over-
looked." J.A. 133. We conclude that the BIA supplied a rational
explanation for its decision and properly exercised its discretion in
denying Jean’s motion to reconsider.
12 JEAN v. GONZALES

-- 12 of 14 --

III.
Finally, Jean challenges the immigration judge’s refusal to grant
her a continuance of the case following the withdrawal of counsel
shortly before her final status hearing. Following the evidentiary hear-
ing on Jean’s application for a waiver of inadmissibility, at which
Jean was represented by counsel, the immigration judge continued the
case for well over one year before entering a final order denying relief
under section 1182(h) and closing the case. The immigration judge
delayed making a final decision to allow Jean to build a case that she
was rehabilitated and merited an exercise of discretion in her favor.
During this extended period, the immigration judge conducted peri-
odic "status" hearings to determine Jean’s progress. Six weeks before
the last of the scheduled status hearings, Jean’s attorney moved to
withdraw as counsel based on Jean’s failure to make fee payments.
The judge granted the motion and Jean appeared at the hearing pro
se. Although Jean indicated that she needed a continuance to obtain
a new attorney, the immigration judge refused to delay the case fur-
ther. The judge noted that the submission of formal testimony and
documentary evidence was essentially complete and that Jean had
been afforded a substantial period of time—during which time she
was represented by counsel—to make progress towards rehabilitation.
The immigration judge indicated that she intended to enter a final
order and invited Jean to give the court any additional information she
wanted to present. The immigration judge also asked Jean a number
of questions relating to her charges for child neglect. Jean contends
that the denial of another continuance to secure replacement counsel
deprived her of a fair immigration proceeding as mandated by the
principles of procedural due process.
Again, because Jean failed to petition for review of the underlying
decision of the immigration judge, including the decision to deny a
further continuance, our review is limited to whether the BIA abused
its considerable discretion in denying Jean’s motion to reconsider the
denial of a continuance — which is in and of itself a discretionary
decision for the immigration judge. See 8 C.F.R. § 1003.29 ("The
Immigration Judge may grant a motion for continuance for good
cause shown."). We find no basis whatsoever for concluding that the
BIA abused its discretion in denying the motion to reconsider the
13 JEAN v. GONZALES

-- 13 of 14 --

question of a continuance. Jean’s motion to reconsider was clearly
deficient in that it failed to present additional legal arguments or iden-
tify some aspect of the decision that the BIA overlooked on its first
go-around. Her motion to reconsider merely repeated her argument on
appeal to the BIA.
Moreover, Jean would lose even if she had raised her due process
argument in a timely petition for review to this court. Removal pro-
ceedings are generally subject to the requirements of procedural due
process. See Rusu v. INS, 296 F.3d 316, 320 (4th Cir. 2002). In order
to succeed on a due process claim, however, "an alien must demon-
strate that he was prejudiced by any such violation," meaning that the
alleged violation "is likely to [have] impact[ed] the results of the pro-
ceedings." Id. at 320-21 (internal quotation marks omitted). Jean fails
to point to any indication that the immigration judge would likely
have determined that Jean was worthy of a favorable exercise of dis-
cretion had Jean been granted a continuance of the final status hear-
ing. She highlights no additional facts that she was unable to present
in the absence of counsel and that would have tipped the balance of
discretionary factors in her favor. See Matter of Marin, 16 I. & N.
Dec. 581, 584-85 (BIA 1978). Accordingly, we reject this argument
and deny Jean’s petition on this basis as well.
IV.
For the foregoing reasons, we conclude that we are without juris-
diction to review the BIA’s denial of Jean’s motion to reconsider the
denial of a waiver of inadmissibility, and we dismiss Jean’s petition
to the extent that it challenges this aspect of the BIA’s decision. We
further conclude that we have jurisdiction to review the BIA’s denial
of the motion to reconsider the denial of cancellation of removal, but
we deny the petition for review on the basis that the BIA did not
abuse its discretion. Finally, we conclude that the BIA did not abuse
its discretion in denying the motion to reconsider its affirmance of the
immigration judge’s denial of a continuance, and we deny Jean’s peti-
tion for review with respect to this issue.
PETITION FOR REVIEW DISMISSED IN PART AND
DENIED IN PART
14 JEAN v. GONZALES

-- 14 of 14 --