                                                                                  FILED
                                                                      United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                               July 11, 2016
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
SAMUEL RODRIGUEZ-MENDOZA,

      Petitioner,

v.                                                          No. 15-9558
                                                        (Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,

      Respondent.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, McKAY, and O’BRIEN, Circuit Judges.
                 _________________________________

      Samuel Rodriquez-Mendoza, a native and citizen of Mexico, petitions for

review of a decision of the Board of Immigration Appeals (BIA) that affirmed the

immigration judge’s (IJ) decision denying his application for cancellation of removal.

We dismiss the petition for lack of jurisdiction.

      Petitioner unlawfully entered the United States in 1999 and was served with

a notice to appear in 2009. He sought relief under 8 U.S.C. § 1229b(b)(1), which


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
permits the Attorney General to cancel removal of an inadmissible or deportable

alien who

       (A) has been physically present in the United States for a continuous period
       of not less than 10 years immediately preceding the date of [his]
       application;
       (B) has been . . . of good moral character during such period;
       (C) has not been convicted of [a specified] offense . . . ; and
       (D) establishes that removal would result in exceptional and extremely
       unusual hardship to [his qualifying relatives].
       The IJ determined petitioner met the requirements of subparagraph (C), but

failed to meet subsections (A), (B), and (D). And even if petitioner had

established the physical presence and good moral character required by

subsections (A) and (B), the IJ found he failed to prove his removal would result

in exceptional and extremely unusual hardship to his qualifying relatives under

subsection (D).

       At the time of the merits hearing in May 2014, petitioner’s qualifying relatives for

purposes of considering the hardship factor were his United States born children, ages 13,

11, and 5. He testified they had no health problems and were doing fine in school.

Petitioner worked in Montana, and he came home once a month to visit his family in

Utah. His wife worked full time, and had recently become involved with another man by

whom she was pregnant. Petitioner said if he were removed to Mexico, he would take his

children with him. He testified he still had family living in Mexico.

       Petitioner testified there were fewer educational opportunities in Mexico, he

would not be able to find work, and there is “a lot crime where I am from.” Admin.

                                              2
R. at 117. The IJ, while “not unsympathetic to the hardship [petitioner’s] children

would face in Mexico,” concluded that “the hardship . . . is not significantly different

in type of severity which would ordinarily be expected upon the removal of a close

family member.” Id. at 78 (citing In re Monreal-Aguinaga, 23 I. & N. Dec. 56

(BIA 2001)).

      Petitioner appealed to the BIA, which held the IJ had correctly concluded he

had not established exceptional or extremely unusual hardship. The BIA determined

it did not need to address the residency or good moral character requirements,

because petitioner would not be eligible for cancellation of removal in light of his

failure to prove the required hardship.

      This court lacks jurisdiction to review “any judgment regarding the granting of

relief under section . . . 1229b.” 8 U.S.C. § 1252(a)(2)(B)(i). To avoid this

proscription on our jurisdiction, petitioner argues the IJ failed to apply the proper

legal standards and consider all the relevant evidence in deciding he did not meet the

residency requirement and was not of good moral character. But the BIA’s decision

turned on petitioner’s failure to prove the required hardship—not residency or good

moral character, and that is the ground we review. See Sarr v. Gonzales, 474 F.3d

783, 790 (10th Cir. 2007) (“A reviewing court, in dealing with a determination or

judgment which an administrative agency alone is authorized to make, must judge the

propriety of such action solely by the grounds invoked by the agency.”) (brackets and

internal quotation marks omitted)). And as to the BIA’s decision regarding undue



                                            3
hardship, petitioner does not argue it was anything other than an exercise of

discretion by the Attorney General, which we lack jurisdiction to review.

      We dismiss the petition for lack of jurisdiction.


                                             Entered for the Court


                                             Terrence L. O’Brien
                                             Circuit Judge




                                            4
