            Case: 13-12519    Date Filed: 04/30/2014   Page: 1 of 5


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                                No. 13-12519
                            Non-Argument Calendar
                          ________________________

                           Agency No. A089-285-061



CIPRIANO MARTINEZ-RUBIO,
a.k.a. Cipriano Martinez,
a.k.a. Ciprino Martinez-Rubin,
a.k.a. Rubio Martinez-Cipriano,

                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                          ________________________

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

                               (April 30, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

TJOFLAT, Circuit Judge:
                Case: 13-12519       Date Filed: 04/30/2014      Page: 2 of 5


       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 “IJ”) 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. § 1003.1(d)(3)(i).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


       1
         8 C.F.R. § 1003.1, Organization, jurisdiction, and powers of the Board of Immigration
Appeals, provides, in pertinent part:

       (d) Powers of the Board—

       ...

       (3) Scope of review.

       (i) The Board will not engage in de novo review of findings of fact determined by
       an immigration judge. Facts determined by the immigration judge, including
       findings as to the credibility of testimony, shall be reviewed only to determine
       whether the findings of the immigration judge are clearly erroneous.

8 C.F.R. § 1003.1(d)(3)(i).
                                               2
                 Case: 13-12519       Date Filed: 04/30/2014        Page: 3 of 5


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 non-

permanent 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)(1), 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. Ashcroft, 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 that presents a “genuine . . . question

of law,” Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1209 (11th Cir. 2012),


       2
           We review de novo the question the Attorney General poses, whether we have
jurisdiction to review the BIA’s decision. See Wu v. U.S. Att’y Gen., 712 F.3d 486, 492 (11th
Cir. 2013).
        3
           8 U.S.C. § 1252, Judicial review of orders of removal, states in subsection (a)(2)(B)
that “[m]atters not subject to judicial review” include “[d]enials of discretionary relief.”

                                                 3
                Case: 13-12519        Date Filed: 04/30/2014       Page: 4 of 5


cert. denied, 133 S. Ct. 2824 (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



       4
          See supra note 1. The clearly erroneous standard adopted in § 1003.1(d)(3)(i) was
intended to reflect the clearly erroneous standard used by federal appellate courts. Zhu v. U.S.
Att’y Gen., 703 F.3d 1303, 1309–10 (11th Cir. 2013).
       5
          8 U.S.C. § 1252, Judicial review of orders of removal, states in subsection (d) that “[a]
court may review a final order of removal only if--(1) the alien has exhausted all administrative
remedies available to the alien as of right.”
       6
          The court’s opinion in Amaya-Artunduaga v. U.S. Att’y Gen. seems to imply that 8
U.S.C. § 1252(d)(1) contains an “excuse or exception” to its exhaustion requirement. Amaya-
Artunduaga v. U.S. Atty. Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). As the Amaya-Artunduaga
                                                4
                 Case: 13-12519       Date Filed: 04/30/2014        Page: 5 of 5


       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)(1)’s exhaustion requirement. His petition for review is

therefore denied.

       PETITION DENIED.




panel put it, “circuit precedent clearly states that, absent a cognizable excuse or exception, ‘we
lack jurisdiction to consider claims that have not been raised before the BIA.’” Id. (quoting
Sundar v. I.N.S., 328 F.3d 1320, 1323 (11th Cir. 2003)). Sundar was an appeal of the District
Court’s denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Sundar, 328
F.3d at 1321. The “question [before the court was] whether § 1252(d)(1)’s exhaustion
requirement applies in § 2241 habeas proceedings or only in direct appeals to this Court from the
BIA.” Sundar, 328 F.3d at 1321. The court concluded that it applies. Id. The court then
addressed the question of whether “perceived futility” provided an exception to the exhaustion
requirement of the habeas statute, 29 U.S.C. § 2254, and concluded that it did not—with this
statement: “The decision in Engle v. Isaac, 456 U.S. 107, 130, 102 S. Ct. 1558, 1573, 71 L. Ed.
2d 783 (1982), establishes that perceived futility is no exception to the exhaustion requirement
contained in 28 U.S.C. § 2254, and it should not be an exception to the one contained in 8 U.S.C.
§ 1252(d)(1), either.” Sundar, 328 F.3d at 1325.
         Because the Sundar court was deciding whether the habeas statute contained a “perceived
futility” exception to its exhaustion doctrine and because Petitioner does not argue that he did not
need to identify the IJ factual findings he considered clearly erroneous, we consider the court’s
reference to § 1252(d)(1) as dicta and, moreover, need not explore the possibility that
§ 1252(d)(1) provides an excuse or exception that would allow a petitioner to insist that the BIA
examine sua sponte an IJ’s factual findings.
                                                 5
