Pеtition for review denied and judgment affirmed by published opinion. Judge GREGORY wrote the opinion, in which Judge KING and Judge HARWELL joined.
OPINION
Adaobi Stella Obioha (“Obioha”) challenges the decision of the Board of Immigration Appeals (“BIA”) denying her motion to remand. Obioha seeks remand so that she can pursue cancellation of removal as a nonpermanent resident before the Immigration Judge (“IJ”). As an initial matter, we conclude that we possess jurisdiction to review the denial of Obioha’s motion to remand. Upon examining the record and the applicable law, we find that the BIA did not abuse its discretion in denying this motion and that Obioha was not denied the due process of law. Therefore, we deny her petition for review and affirm the BIA’s decision.
I.
Obioha was born in Nigeria in 1959. She entered the United States in 1986 to complete her medical residency at a U.S. hospital. She has six children, aged 8 to 18, with her former husband and Nigerian citizen, Georgе Udeozor.
In 1987, while still married to Udeozor, Obioha married U.S. citizen Eric Loyd. On several occasions between 1987 and 1991, Obioha falsely reported to the Immigration and Naturalization Service (“INS”) in sworn documents or under penalty of perjury that she had divorced Udeozor and that she had no children. Based upon these misrepresentations, the INS upgraded Obioha’s status over time from an alien to an alien relative, and eventually to a lawful permanent rеsident. Thereafter, Obioha and Loyd divorced, and she resumed her marriage to Udeozor, which continued until their divorce in 2003.
The INS discovered Obioha’s fraud in 1999 when she truthfully declared in an application for naturalization that she had six children. On October 12, 1999, the INS commenced removal proceedings through issuance of a notice to appear. The notice charged that Obioha was subject to removal for procuring entry or status by fraud or misrepresentation.
Obioha admitted both the fraud and re-movability before the IJ. On January 12, 2000, she applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(a), which requires that the alien be “lawfully admitted for permanent residence.” At that time, Obioha could have sought cancellation of removal as a nonpermanent resident under 8 U.S.C. § 1229b(b), but chose not to do so. 1 On November 15, 2001, the INS moved to pretermit Obioha’s application for relief from removal, аrguing that because her continued presence had been achieved through fraud, she was not “law *404 fully admitted for permanent residence.” On August 13, 2002, the IJ agreed with the INS’s position and pretermitted Obioha’s application, granting her voluntary departure.
Obioha timely appealed the IJ’s decision to the BIA. On January 8, 2003, while Obioha’s appeal was still pending, the BIA decided In re Koloamatangi, 23 .1 & N Dec. 548 (BIA 2003), which contained facts very similar to those of Obioha’s case. In Koloamatangi, the BIA held that an alien who had procured status as a permanent resident through fraud could not qualify for cancellation of removal under 8 U.S.C. § 1229b(a). 23 I & N Dec. at 549. Because it appeared that the alien involved was eligible for cancellation of removal as a non-permanent resident under 8 U.S.C. § 1229b(b), the BIA remanded his case to the IJ to consider that relief. Id. at 552.
In light of the Koloamatangi decision, Obioha moved to remand her case to the IJ so that she likewise could apply for cancellation of removal as a nonpermanent resident under 8 U.S.C. § 1229b(b). Obi-oha’s one-page motion indicated that Ko-loamatangi cut off her first theory of relief, but the motion did not address any of the reasons why she would be entitled to relief under her new theory. See J.A. 9. The Department of Homeland Security (“DHS”), successor to the INS, opposed remand on the basis that Obioha had failed to submit necessary documentation and had not demonstrated prima facie eligibility for relief in her motion. 2 On September 9, 2004, the BIA rendered its decision on Obioha’s appeal and motion to remand. Citing Koloamatangi, it adopted and affirmed the IJ’s decision to deny cancellation of removal under 8 U.S.C. § 1229b(a). With regard to remand, the BIA denied Obioha’s request for two reasons. First, the BIA agreed with the DHS that Obi-oha’s motion had failed to address prima facie eligibility, reasoning that “[i]n her motion, the respondent has not addressed the moral character issue arising from her аdmitted fraud, nor has she suggested that hardship might occur to a qualifying relative.” J.A. 2. Second, the BIA found that “respondent had adequate opportunity to seek such alternative relief below, and she has not provided us with a persuasive reason why she should be permitted now to pursue another application.” Id. Obioha timely petitioned this Court to review the denial of the motion to remand.
II.
The threshold issue of this appeal is whether this Court has jurisdiction to rеview the BIA’s denial of Obioha’s motion to remand. The Government argues that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009, has stripped this Court’s ability to review any discretionary decision related cancellation of removal. 3 IIRIRA’s “gate-keeper provision,” codified at 8 U.S.C. § 1252(a)(2)(B)(i), provides that “no court shall have jurisdiction to review ... any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b [cancellation of removal], 1229c, or 1255 of this title....” 8 U.S.C. § 1252(a)(2)(B)(i). 4 *405 Obioha requested remand for the purpose of pursuing cancellation of removal under 8 U.S.C. § 1229b(b). The Government argues that because the effect of denying her motion to remand is to deny her cancellation of removal, the gatekeeper provision bars review. The Fourth Circuit has not yet addressed the full extent of section 1252(a)(2)(B)(i)’s limits on jurisdiction.
It is quite clear that the gatekeeper provision bars our jurisdiction to review a decision of the BIA tо actually deny a petition for cancellation of removal or the other enumerated forms of discretionary relief.
See, e.g., Molina-Estrada v. INS,
The Government urges us to read 8 U.S.C. § 1252(a)(2)(B)® broadly and find that because the ultimate effect of denying Obioha’s motion to remand is to preclude her from seeking cancellation of removal under section 1229b(b), this decision constitutes a “judgment regarding the granting of relief under section ... 1229b....” 8 U.S.C. § 1252(a)(2)(B)®. Although this interpretation is a plausible reading of the language, several principles of statutory construction counsel us to interpret this jurisdiction-stripping languаge narrowly. First, there must be a showing of “ ‘clear and convincing evidence’ of a contrary legislative intent” to restrict access to judicial review.
Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc.,
In addition, this circuit gave a narrow reading to the gatekeeper provision of IIRIRA’s transitional rules.
See Stewart v. INS,
Although, as the Government points out, the language of the transitional rules is not identical to that of the permanent rules, we believe that the
Stewart
court’s reasoning continues to apply. The operative word of both provisions is “under,” which the
Stewart
court focused on in reading the provision to direct that the “basis for” the BIA’s decision controlled our ability to review it.
Accord Pilica v. Ashcroft,
The other circuits have similarly concluded that 8 U.S.C. § 1252(a)(2)(B)(i) bars review only of discretionary decisions on the merits of the enumerated sections.
See Prado v. Reno,
The Government relies on
Rodriguez v. Ashcroft,
A close examination of
Rodriguez
reveals that it does not contradict our hold
*407
ing. Because it was based on the sufficiency of the evidence of extreme hardship, the denial of reopening that the
Rodriguez
court was asked to review actually “addressed the ‘merits of an alien’s request for relief pursuant to’ a provision of the INA established as discretionary by § 309(c)(4)(E).”
Id.
(quoting
Stewart,
It is axiomatic that if we are divested of jurisdiction to review an original detеrmination by the BIA that an alien has failed to establish that he would suffer extreme hardship if deported, we must also be divested of jurisdiction to review the BIA’s denial of a motion to reopen on the ground that the alien has still failed to establish such hardship.
Id.
Thus, because the BIA made a discretionary decision on the merits of an enumerated provision, the fact that it did so through denying a motion to reopen did not save appellate jurisdiction. Where, howеver, the basis for the decision we are asked to review is not the discretionary merits of a section enumerated by the gatekeeper provision,
Rodriguez
does not conflict with our holding that we have jurisdiction to review it.
7
Accord Pilica,
In the present case, the BIA denied Obioha’s motion to remand on two distinct bases: (1) Obioha had failed to seek cancellation of removal as a nonpermanent resident when she had the opportunity to do so before thе IJ, and (2) Obioha failed to present the elements of prima facie eligibility for cancellation of removal in her motion. 8 We find that we have jurisdiction over both grounds. On the first ground, the “basis for” denial was Obioha’s procedural failure, which is unrelated to the merits of a discretionary decision on cancellation of removal. The second ground similarly is not based upon the discretionary merits of cancellation of removal. Rather, because Obioha had failed to address the elements of a prima facie case in her motion itself, the BIA found it insufficient to demonstrate eligibility and declined to examine the evidence of prima facie eligibility elsewhere in the record. The basis for this ground was therefore a *408 deficiency of the motion to remand, not a discretionary decision on the merits.
If not an abuse of discretion, either one of the BIA’s grounds for denial would be sufficient on its own to rеquire this Court to affirm the BIA decision. Because we find, for the reasons discussed below, that the BIA did not abuse its discretion in denying Obioha’s petition on the basis that she had an adequate opportunity to pursue relief below, we do not reach the question of whether the BIA abused its discretion with respect to its failure to look beyond Obioha’s motion to remand. Accordingly, we express no opinion as to whether we would find the BIA’s decision not to consider the evidence of prima facie eligibility already in the record to be an abuse of discretion.
III.
deny Obioha’s motion to remand for an abuse of discretion.
See Stewart,
contexts before the BIA: when an alien seeks reconsideration of a decision or when an alien seeks to have the proceedings reopened. 9 Although these motions are often treated interchangeably, a request for reconsideration is based upon “errors of fact or law in the prior Board decision,” 8 C.F.R. § 1003.2(b)(1), whereas a request to reopen proceedings results from changed circumstances and specifically contemplates that an alien will do so “for the purpose of submitting an application for relief,” 8 C.F.R. § 1003.2(c)(1). Obioha requested remand not so that the IJ could reevaluate its prior decision under 8 U.S.C. § 1229b(a), but so that she could pursue a new theory of relief under 8 U.S.C. § 1229b(b). Therefore, her motion to remand is properly viewed as a motion to reopen.
The regulations regarding a motion to reopen provide, in pertinent part:
nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.
8 C.F.R. § 1003.2(c)(1).
Here, as the BIA noted, Obioha had the opportunity to pursue relief as a nonper-manent resident under 8 U.S.C. § 1229b(b) as an alternative ground for relief before the IJ. Obioha has never suggested that the facts relevant to her entitlement to such relief changed. Indeed, Obioha’s counsel admitted at oral argument that Obioha chose to pursue cancellation of removal only as a lawful permanent resident under 8 U.S.C. § 1229b(a) because lawful permanent residents are subject to a comparatively easier standard.
Instead, the only “circumstance[ ] that [has] arisen subsequent” Obioha suggests is the BIA’s
Koloamatangi
decision, which made clear that the IJ’s decision was correct. Obioha, however, can point to no authority that would require the BIA to reopen proceedings when an alien wishes
*409
to pursue a new legal theory after it becomes clear that the first one will not succeed.
10
To the contrary, the Supreme Court has noted that “[Section 1003.2] is framed negatively; it directs the Board not to reopen unless certain showings are made. It does not affirmatively require the Board to reopen the proceedings under any particular condition.”
INS v. Abudu,
Obioha also argues that because the BIA chose to reopen proceedings in the similar
Koloamatangi
situation, it was an abuse of discretion not to do the same for her. This argument fails to account for the discretionary nature of the decision to reopen a case. “If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive.”
Abudu,
Therefore, because Obioha chose to forgo her first opportunity to seek 1229b(b) cancellation of removal, we cannot say that it was arbitrary or unreasonable for the BIA to decline to give her a second chance. Accordingly, we find that the BIA did not abuse its discretion in denying Obioha’s motion to remand.
IV.
Obioha also suggests that the denial of her motion to remand violated her due process rights. The gatekeeper provision explicitly preserves our jurisdiction to review constitutional claims.
See 8
U.S.C. § 1252(a)(2)(D). A claim that the BIA denied an alien due process is reviewed de novo.
Rusu v. INS,
Obioha argues that because no court evaluated her request
tor
cancellation
oí
removal as a nonpermаnent resident on the merits and because the BIA provided improper grounds for denying her motion to remand, she was denied due process. Obioha, however, did have the opportunity to seek cancellation of removal as a non-permanent resident, which she chose not to pursue. Furthermore, an alien does not have a legal entitlement to discretionary relief.
See Smith v. Ashcroft,
*410 y.
Because Obioha failed to seek cancellation of removal as a nonpermanent resident when she had the opportunity to do so before the IJ, she has failed to show that the BIA either abused its discretion in denying her motion to remand or denied her the due process of law. Accordingly, we deny the petition for review and affirm the BIA’s decision.
PETITION FOR REVIEW DENIED AND JUDGMENT AFFIRMED
Notes
. Cancellation of removal is available to non-permanent residents at the Attorney General’s discretion if the alien (1) has been physically present in the United States continuously for at least ten years; (2) has had good moral character during that time pеriod; (3) has not been convicted of certain enumerated offenses; and (4) establishes that removal would result in “exceptional and extremely unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(l).
.The DHS cited the regulation that provides, "[a] motion to reopen proceedings for the purpose of submitting an application for relief must be accompanied by the appropriate application for relief and all supporting documentation.” 8 C.F.R. § 1003.2(c)(1).
.The Government concedes that we have jurisdiction to review constitutional claims and questions of law under the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, which clarified that such review is permitted. See 8 U.S.C. § 1252(a)(2)(D).
.Because deportations commenced after
*405
April 1, 1997, we apply the relevant gatekeeper provision of IIRIRA's permanent rules (8 U.S.C. § 1252(a)(2)(B)(i)), rather than that of IIRIRA's transitional rules (IIRIRA § 309(c)(4)(E)).
See
IIRIRA §§ 309(a), 309(c)(4);
Okpa v. INS,
. Section 1003.2(a) provides that “[t]he decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board....”
. The enumerated provisions instead are: 8 U.S.C. §§ 1182(h) (waiver of inadmissibility), 1182(i) (waiver of inadmissibility), 1229b (cancellation of removal), 1229c (voluntary departure), and 1255 (adjustment of status). 8 U.S.C. § 1252(a)(2)(b)®.
. The Fifth Circuit recently found jurisdiction to review the denial of a motion to reopen to seek adjustment of status based on the ground that the movant had failed to introduce previously unavailable, material evidence, which is unrelated to the merits.
Manzano-Garcia,
. The Government seems to assume that the BIA did not find Obioha’s motion deficient and looked beyond the one-page motion to determine that the evidence otherwise before it did not establish prima facie eligibility. However, the admittedly brief language of the BIA decision demonstrates that this assumption is incorrect. The BIA states, “In her motion, the respondent has not addressed the moral character issue arising from hеr admitted fraud, nor has she suggested that hardship might occur to a qualifying relative.” J.A. 2 (emphasis added). Moreover, had the BIA examined the evidence already in the record as the Government assumes, it would have seen that Obioha did present evidence which “addressed” moral character (five sworn letters of recommendation, J.A. 220-31) and "suggested” hardship to a qualifying relative (a licensed clinical social worker's assessment that extreme and unusual hаrdship would beset Obioha's children, J.A. 131). Finally, this portion of the BIA opinion indicated its agreement with the DHS, which had argued the deficiency of Obioha's motion on several bases, including the motion’s failure to demonstrate prima facie eligibility. See J.A. 6-7.
. Motions to remand are mentioned in reference to both: a motion to reconsider or reopen "that is filed while an appeal is pending before the BIA, may be deemed a motion to remand for further proсeedings before the Immigration Judge...." 8 C.F.R. § 1003.2(b)(1) (motions to reconsider); 8 C.F.R. § 1003.2(c)(4) (motions to reopen).
. Nor did Koloamatangi represent a change in the applicable law. The BIA noted in that opinion that its holding was fully consistent with BIA precedent on the meaning of “lawfully admitted for permanent residence.” 23 I & N Dec. at 549-50. Moreover, the case that Obioha relied on to hold to the contrary interpreted a different provision in which "has previously been admitted,” rather than "lawfully admitted” was the operative phrase. In re Ayala-Arevalo, 22 I & N Dec. 398, 401-02 (BIA 1998). See also Koloamatangi, 23 I & N Dec. at 551 & n. 4 (distinguishing Ayala-Arevalo ).