                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                            No. 06-11535                     SEPTEMBER 15, 2006
                        Non-Argument Calendar                 THOMAS K. KAHN
                                                                  CLERK
                      ________________________

                          BIA No. A98-320-389

GEORGE NAPOLEON GAUBAULT,


                                                             Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                              Respondent.


                      ________________________

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

                          (September 15, 2006)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
       George Napoleon Gaubault, a Jamaican native and citizen, petitions for

review of the Bureau of Immigration Appeals’ (“BIA”) affirmation of the

Immigration Judge’s (“IJ”) order of removal. The IJ found Gaubault removable

after Gaubault, initially electing to proceed pro se, admitted that he remained in the

United States for a time longer than permitted following his entry on June 10,

1997. He also filed an application for asylum and withholding of removal, which

the IJ set for a subsequent hearing. Before the hearing on his application, Gaubault

retained counsel. Gaubault then moved to continue the hearing and for leave to file

for cancellation of removal, alleging that he qualified for cancellation based on his

continuous presence in the United States since his first arrival in 1987.

       The IJ denied the motion to continue on the ground that Gaubault failed to

establish prima facie entitlement to seek cancellation of removal. The BIA

dismissed Gaubault’s appeal, finding no reason to disturb the IJ’s finding that

Gaubault was not entitled to a continuance. On appeal, Gaubault argues that the IJ

erroneously denied his motion because he established good cause for a continuance

and that, by barring him from applying for relief, the IJ violated his due process

rights.1 For the reasons set forth more fully below, we deny the petition.


       1
         Gaubault argues that we should review the IJ’s opinion because the BIA’s decision was
tantamount to an affirmance without opinion. We disagree. Because the BIA neither expressly
adopted the IJ’s decision nor entered an affirmance without opinion as contemplated under 8
C.F.R. § 1003.1(e)(4), we review the BIA’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001); Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003); 8
                                                2
       We review the denial of a motion to continue for abuse of discretion. Zafar

v. U.S. Att’y Gen., No. 04-16613, manuscript op. at 11 (11th Cir. Aug. 24, 2006).

We review constitutional challenges de novo . Lonyem v. U.S. Att’y Gen., 352

F.3d 1338, 1341 (11th Cir. 2003).

       An IJ may grant a motion to continue “for good cause shown.” 8 C.F.R.

§ 1003.29. A non-permanent resident alien in removal proceedings can apply for

cancellation of removal if the alien (1) has been continuously present in the United

States for at least ten years; (2) has been of good moral character during that

period; (3) has not been convicted of certain offenses; and (4) establishes that

removal would result in extreme hardship to a citizen or permanent resident

spouse, parent, or child. 8 U.S.C. § 1229b(b), Immigration and Nationality Act

(“INA”) § 240A(b). “The Attorney General . . . has discretion to cancel the

removal of a non-permanent resident if that alien” meets these statutory criteria.

Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). A

continuous presence is not maintained if the alien departs from the United States

for any period over 90 days or for any aggregated periods over 180 days. 8 U.S.C.

§ 1229b(d)(2), INA § 240A(d)(2). Moreover, the period ends when the alien is


C.F.R. § 1003.1(e)(4).
       Gaubault also argues that the IJ failed to make adequate findings because the IJ did not
adequately develop the record and that the IJ mischaracterized the nature of his motion. As
Gaubault did not exhaust these issues before the BIA, we lack jurisdiction to consider them. 8
U.S.C. § 1252(d)(1); Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003).
                                                  3
served with a notice to appear. 8 U.S.C. § 1229b(d)(1), INA § 240A(d)(1).

      In his asylum application, Gaubault listed June 10, 1997, as the date he left

Jamaica and the only date on which he entered the United States. The only

documentary evidence Gaubault presented that, standing alone, indicated that he

had been in the United States prior to 1997 was evidence that he obtained a Florida

driver’s license on December 1, 1995. Gaubault’s notice to appear was served on

June 17, 2004, less than ten years after the driver’s license was issued and,

therefore, the license provides insufficient evidence to demonstrate ten years’

continuous presence as required for cancellation of removal. 8 U.S.C.

§ 1229b(d)(1), INA § 240A(d)(1). The remaining evidence in support of

Gaubault’s prior entry into the United States consists of his allegation that he came

to the United States in 1987 and a bank transaction receipt from 1993. However,

the receipt did not contain any information as to the identity of the account holder.

      In light of Gaubault’s asylum application, the IJ did not abuse his discretion

in declining to find that Gaubault’s assertion and his documentary evidence set

forth a prima facie case of eligibility for cancellation of removal. Although

Gaubault claims that the dates of his previous entries into the United States were

inadvertently omitted from the application, the application contains other

inconsistencies with his claim. The only residential address Gaubault listed prior

to 1997 is in Jamaica. According to the application, Gaubault was a waiter at one
                                           4
Jamaican business from May 1981 to October 1990 and a waiter at a second

Jamaican business from December 1990 to July 1997. The statement Gaubault

provided with his application makes no mention of coming to the United States at

any time other than 1997. In addition, in support of his motion for a continuance,

Gaubault, through counsel, stated that he had gone back to Jamaica since 1987 and

admitted entering the United States in 1990 and 1997. Viewed as a whole, these

facts are inconsistent with a finding that Gaubault satisfied the continuous presence

requirement of 8 U.S.C. § 1229b(b)(1)(A), INA § 240A(b)(1)(A).

      On appeal before the BIA, Gaubault submitted no further documentation in

support of his claim of continuous presence and, aside from stating that he resided

in the United States since 1987 except for “some casual visits” to Jamaica, he

offered no details of when he departed the United States and how long he remained

in Jamaica before returning. Because the IJ did not abuse his discretion and

Gaubault did not make a showing before the BIA to counter the problems created

by his asylum application with establishing a continuous presence, the BIA

likewise did not abuse its discretion in finding no reason to set aside the IJ’s ruling.

      We also deny Gaubault’s due process claim. Cancellation of removal is a

form of discretionary relief. See Gonzalez-Oropeza, 321 F.3d at 1332. Gaubault

has no constitutionally protected right to discretionary relief. Zafar, No. 04-16613,

manuscript op. at 24. Accordingly, his claim that the inability to apply for
                                           5
cancellation of removal resulting from the denial of a continuance violated his due

process rights fails. Id. at 23-24 (holding that the denial of a motion to continue to

allow aliens to meet the requirements for the discretionary relief of adjustment of

status did not violate due process).

      In light of the foregoing, Gaubault’s petition for review is denied.

      PETITION DENIED.




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