                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                              FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                       U.S.
                               ________________________ ELEVENTH CIRCUIT
                                                                       APR 4, 2011
                                      No. 10-10854                     JOHN LEY
                                  Non-Argument Calendar                  CLERK
                                ________________________

                                  Agency No. A078-304-783


MARCOS SARMIENTO-HERRERA,
a.k.a. Marcos Sarmiento,

lllllllllllllllllllll                                          Petitioner,

                                           versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllll                                           Respondent.

                                ________________________

                            Petition for Review of a Decision of the
                                 Board of Immigration Appeals
                                 ________________________

                                        (April 4, 2011)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

         Marcos Sarmiento-Herrera petitions for review of the Board of Immigration
Appeals’ final order affirming the Immigration Judge’s denial of his applications

for adjustment of status and waiver of inadmissibility. See INA §§ 245(a) &

212(i)(1), 8 U.S.C. §§ 1255(a) & 1182(i)(1). Sarmiento argues that the BIA erred

in denying his application for a waiver of inadmissibility because it applied an

incorrect legal standard in concluding that he had not demonstrated that his

parents would suffer an extreme hardship if he were denied admission to the

United States. Sarmiento also argues that the IJ violated his due process rights by

requesting that his counsel proffer his parents’ testimonies at his removal hearing.

The government contends that we lack jurisdiction over Sarmiento’s petition

because he abandoned any claim of error with respect to the denial of his

application for adjustment of status and Sarmiento’s appeal of the denial of his

discretionary waiver of inadmissibility is moot as a result.

      We review de novo issues of subject-matter jurisdiction. Gonzalez-Oropeza

v. United States Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Under the

INA, an alien must exhaust his administrative remedies before seeking judicial

review of any issue. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). When an alien fails

to exhaust his administrative remedies, we lack jurisdiction to review the

unexhausted issue on appeal. Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir.

2006); see also Amaya-Artunduaga v. United States Att’y Gen., 463 F.3d 1247,

                                          2
1250 (11th Cir. 2006) (finding that this Court lacked jurisdiction to review an

adverse credibility determination because an alien failed to challenge that

determination before the BIA).

       We lack jurisdiction to review the IJ’s denial of Sarmiento’s request for an

adjustment of status for two reasons. First, Sarmiento abandoned any challenge to

the IJ’s denial of his request for an adjustment of status because he failed to

exhaust his administrative remedies by raising the issue before the BIA and

because he waived the issue on appeal to this Court. Second, we lack jurisidction

because the plain language of the INA precludes judicial review of the IJ’s

decision to deny relief. INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i) (“No

court shall have jurisdiction to review . . . any judgment regarding the granting of

relief under section . . . 1255 of this title [adjustment of status].”).

       Because we lack jurisdiction to review the denial of Sarmiento’s request for

an adjustment of status, his appeal of the BIA’s denial of his waiver of

inadmissibility is dismissed as moot. Even assuming that the BIA applied the

wrong legal standard in denying Sarmiento’s application for a waiver of

inadmissibility, such a waiver if granted would only lift a statutory bar to his

eligibility for an adjustment of status under INA § 245(i)(2(A), 8 U.S.C. §

1255(i)(2)(A). Because the BIA denied Sarmiento’s application for an adjustment

                                             3
status in an exercise of its discretion, however, whether he is eligibile for a waiver

of the ground for inadmissibility in INA § 212(a)(6)(C)(i), 8 U.S.C. §

1182(a)(6)(C)(i), is moot. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1335–36

(11th Cir. 2001) (“A case is moot when the issues presented are no longer ‘live’ or

the parties lack a legally cognizable interest in the outcome.” (alteration omitted)).

Therefore, we are without jurisdiction to review the BIA’s decision denying his

application for a waiver of inadmissibility because mootness is jurisdictional. Id.

at 1336.

      “Even [though] we [do] not have jurisdiction, we . . . still have jurisdiction

to review substantial constitutional claims.” Zafar v. United States Atty. Gen.,

461 F.3d 1357, 1367 (11th Cir. 2006) (citation omitted). However, “[t]here is no

constitutionally protected right to discretionary relief, which is the relief requested

here.” Id. (citation omitted). Sarmiento’s argument that the IJ violated his due

process rights by requiring his attorney to proffer the contents of his parents’

testimony at his removal proceedings is without merit.

      PETITION DENIED.




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