          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                September 2, 2009
                                 No. 08-60759
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

IVAN AQUILES RIVAS-BANOS

                                            Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                            Respondent


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                              BIA No. A70 064 149


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
      Ivan Aquiles Rivas-Banos, a native and citizen of El Salvador, petitions
this court for review of an order from the Board of Immigration Appeals (BIA)
dismissing his appeal of the immigration judge’s (IJ) denial of his application for
cancellation of removal. Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), this court is
statutorily barred from reviewing the BIA’s purely discretionary denial of
cancellation of removal. Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007);



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-60759

Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004). However, this court is not
precluded from reviewing claims raising constitutional or purely legal questions.
See 8 U.S.C. § 1252(a)(2)(D); Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir.
2006).
      Rivas-Banos challenges the BIA’s decision on the grounds that: (1) the BIA
failed to consider the hardship issue; (2) if an alien meets the petty offense
exception, that alien may still qualify for cancellation of removal despite a
conviction for a crime involving moral turpitude (CIMT); (3) a conviction for a
CIMT that meets the petty offense exception does not stop the accrual of time for
purposes of meeting the requirement for continuous physical presence; (4) the
BIA should have granted him voluntary departure; and (5) the BIA violated his
procedural due process rights by dismissing his appeal despite his plausible
ground of relief from removal. Although Rivas-Banos cites to In re Garcia-
Hernandez, 23 I. & N. Dec. 590 (BIA 2003), and In re Deanda-Romo, 23 I. & N.
Dec. 597 (BIA 2003), in support of his arguments regarding the petty offense
exception, those cases do not explicitly support his arguments. Moreover, this
court must defer to the BIA’s interpretation of ambiguous provisions of the INA,
and the BIA held in this case that the petty offense exception was inapplicable
to Rivas-Banos. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
      As the petty offense exception was not applicable to Rivas-Banos, he was
ineligible for cancellation of removal. See 8 U.S.C. §§ 1101(f)(3), 1229b(b)(1)(B),
1182(a)(2)(A)(i)(I). It is therefore not relevant whether Rivas-Banos met the
other statutory requirements for cancellation of removal.           Rivas-Banos’s
argument regarding voluntary departure is not cognizable because he did not
exhaust that claim by raising it before the BIA. See Roy v. Ashcroft, 389 F.3d
132, 137 (5th Cir. 2004). Moreover, Rivas-Banos’s due process claim lacks merit
because he does not have a right to due process regarding “the failure to receive
relief that is purely discretionary in nature.” Assaad v. Ashcroft, 378 F.3d 471,
475 (5th Cir. 2004).

                                        2
                         No. 08-60759

Accordingly, Rivas-Banos’s petition for review is DENIED.




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