                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 17 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



EDUARDO MARTINEZ-HERRERA,                        No. 07-72358

              Petitioner,                        Agency No. A029-192-223

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted November 2, 2010
                            San Francisco, California

Before: PAEZ and BEA, Circuit Judges, and DUFFY, Senior District Judge.**

       Petitioner Eduardo Martinez-Herrera (“Petitioner”), a native and citizen of

Guatemala who entered the United States without inspection in 1988, seeks review

of the Board of Immigration Appeals’ (“BIA”) order denying Petitioner a waiver of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
inadmissibility under 8 U.S.C. § 1182(h). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We deny the petition.

      We lack jurisdiction to review denial of Petitioner’s request for a waiver of

inadmissibility under § 1182(h). Petitioner does not raise a cognizable legal or

constitutional question as to the BIA’s denial of his waiver request. The BIA

determined that Petitioner was statutorily eligible for § 1182(h) relief, but did not,

in exercise of its discretion, grant § 1182(h) relief.

      There is no merit to Petitioner’s contention that a finding of eligibility

requires granting a waiver. § 1182(h) expressly states that the “Attorney General

may, in his discretion,” grant a waiver to an eligible petitioner. Here, the BIA

properly considered Petitioner’s lack of rehabilitation as one of many factors in

determining that relief was not warranted. Because whether to grant § 1182(h)

relief is a discretionary decision, we lack jurisdiction to review the agency’s

decision. See 8 U.S.C. § 1252(a)(2)(B)(i); Mejia v. Gonzales, 499 F.3d 991, 999

(9th Cir. 2007).

PETITION FOR REVIEW DENIED.




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