564 F. App'x 478

Cipriano MARTINEZ-RUBIO, a.k.a. Cipriano Martinez, a.k.a. Ciprino Martinez-Rubin, a.k.a. Rubio Martinez-Cipriano, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 13-12519

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 30, 2014.

Ira J. Kurzban, Kuzban Kurzban Weinger Tetzeli & Pratt, PA, Miami, FL, for Petitioner.

*479Aaron D. Nelson, U.S. Department of Justice Office of Immigration Litigation, Colette Jabes Winston, David V. Bernal, Krystal Samuels, U.S. Department of Justice, Washington, DC, Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL, for Respondent.

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

TJOFLAT, Circuit Judge:

Cipriano Martinez-Rubio, the Petitioner, seeks this court’s review of the Board of Immigration Appeals’s (the “BIA”) decision dismissing his appeal of the Immigration Judge’s (the “U”) denial of his application for cancellation of removal. In the brief he filed in support of his petition, Petitioner argues that the BIA “violated its regulatory duty by failing to review the IJ’s factual findings,” Petitioner’s Br. at 12, pursuant to 8 C.F.R. § lOOS.RdXSXi).1 The BIA purportedly shirked this duty because there was evidence in the record establishing that the IJ’s factual findings about his family’s good health were clearly erroneous. Alternatively, assuming that the BIA reviewed the findings, Petitioner argues the review was “deficient because it ignored material record evidence,” Petitioner’s Br. at 18, including documentation about his daughter’s significant medical conditions. The Attorney General argues that we do not have jurisdiction to hear the claim, pursuant to Immigration and Nationality Act (“INA”) § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), because the denial of cancellation of removal is a discretionary decision not subject to appellate review.2

“The Attorney General ... has discretion to cancel the removal of a nonperman-ent resident if that alien has (A) a continuous physical presence of not less than 10 years, (B) good moral character, (C) a lack of certain criminal convictions, and (D) establishes exceptional and extremely unusual hardship to a qualifying relative.” Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir.2003) (citing INA § 240A(b)(l), 8 U.S.C. § 1229b(b)(1)). Assuming the alien has established the first three points, whether the alien’s removal is cancelled turns on whether the Attorney General decides that the alien’s removal would subject a qualifying relative — in this case, Petitioner’s children — to exceptional and extremely unusual hardship. That decision is a discretionary call and, as such, is not subject to judicial review. 8 U.S.C. § 1252(a)(2)(B);3 Gonzalez-Oropeza, 321 F.3d at 1332-33; Najjar v. Ashcroji, 257 F.3d 1262, 1297-98 (11th Cir.2001). Notwithstanding this jurisdictional bar, though, § 1252(a)(2)(B) affords judicial review of a cancellation-of-removal decision *480that presents a “genuine ... question of law,” Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1209 (11th Cir.2012), cert. denied, — U.S. -, 183 S.Ct. 2824, 186 L.Ed.2d 883 (2013), which we review de novo, Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir.2013). Petitioner’s argument that the BIA violated its regulatory duty by failing to review the IJ’s factual findings presents a question of law.

The BIA reviews an IJ’s factual findings for clear error. 8 C.F.R. § 1003.1(d)(3)(i)4 ; Zhu, 703 F.3d at 1305, 1308-09. In order to review an IJ’s factual findings for clear error, the appealing petitioner must identify and inform the BIA of the factual finding that, he contends, is clearly erroneous. That is, he must exhaust the administrative remedy the law provides him; he must ask the BIA to set aside the finding. INA § 242(d)(1); 8 U.S.C. § 1252(d)(1).5 The presence of this statutory exhaustion requirement means that the BIA is not required to review each of the IJ’s factual findings on its own initiative. This explains why, in Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir.2006), we dismissed a petition asking us to review the BIA’s sua sponte review of the IJ’s adverse credibility finding.6

Although the petition for review before us presents a question of law, we decline to consider the question because to do so would sanction Petitioner’s avoidance of § 1252(d)(l)’s exhaustion requirement. His petition for review is therefore denied.

PETITION DENIED.

Martinez-Rubio v. U.S. Attorney General
564 F. App'x 478

Case Details

Name
Martinez-Rubio v. U.S. Attorney General
Decision Date
Apr 30, 2014
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564 F. App'x 478

Jurisdiction
United States

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