Donatti v. Gonzales

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
October 3, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60536
Summary Calendar
GUSTAVO DONATTI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A79-002-001
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gustavo Donatti, a native and citizen of Argentina, appeals
the reversal by the Board of Immigration Appeals (BIA) of an
immigration judge’s grant of cancellation of removal. This court
lacks jurisdiction to review the Attorney General’s discretionary
decision regarding cancellation of removal. See Rueda v. Ashcroft,
380 F.3d 831, 831 (5th Cir. 2004); 8 U.S.C. § 1229b(b); 8 U.S.C. §
1252(a)(2)(B)(i).
Although this court has jurisdiction to review Donatti’s
constitutional argument that his due process rights were violated

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No. 05-60536
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because a three-member panel decided his appeal, see Balogun v.
Ashcroft, 270 F.3d 274, 277-78 & 278 n.11 (5th Cir. 2001), his
argument is unavailing. Assuming for the sake of argument that the
BIA did not comply with 8 C.F.R. § 1003.1(e)(6), the failure of an
agency to follow its own regulations is not a per se denial of due
process unless the regulation is required by the constitution or a
statute. See Arzanipour v. INS, 866 F.2d 743, 746 (5th Cir. 1999).
The BIA’s regulation governing three-member panels is not required
by statute. Nor does the constitution require compliance with §
1003.1(e)(6). See Manzano-Garcia v. Gonzales, 413 F.3d 462, 470
(5th Cir. 2005).
Donatti’s argument that his due process rights were violated
when the BIA did not give what he terms “any deference” to the
immigration judge’s decision is in essence a challenge to the
merits of the BIA’s reversal of the immigration judge’s grant of
cancellation of removal, which this court lacks jurisdiction to
review. See Rueda, 380 F.3d at 831.
Accordingly, Donatti’s petition for review is DENIED.

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