Theagene

MEMORANDUM **

Elysee Theagene petitions this Court for review of the Board of Immigra *576 tion Appeals’ final order of removal. Theagene first argues that he is not subject to removal because he is not an alien due to his military service to the United States. However, as Theagene failed to challenge the immigration judge’s decision on this issue before the Board, Theagene failed to exhaust his administrative remedies. Thus, we lack jurisdiction to consider this aspect of his petition.

Theagene argues that the Board erred in granting the government’s motion to reconsider its ruling on Theagene’s Convention Against Torture claim. The government’s motion to reconsider properly stated a perceived error in law that the Board committed in reversing the immigration judge. As such, the Board acted within its discretion in granting the motion to reconsider.

Citing our decision in Gonzalez v. INS, 3 Theagene argues that the Board violated his right to due process by applying an intervening en banc decision of the Board without providing him with notice and an opportunity to respond. We cannot agree. Gonzalez and Castillo-Villagra v. INS, 4 upon which Gonzalez relied, involved the…