     Case: 12-60015       Document: 00512124210         Page: 1     Date Filed: 01/25/2013




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

                                                                            FILED
                                                                         January 25, 2013
                                     No. 12-60015
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JUANA CASTRO,

                                                  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. A088 062 089


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juana Castro, a native and citizen of Mexico, has filed a petition for review
of the Board of Immigration Appeals’ (BIA) dismissal of her appeal from the
Immigration Judge’s (IJ) denial of her application for cancellation of removal.
The IJ and BIA found that Castro had failed to establish that two of her
children, who are United States citizens, would suffer exceptional and extremely
unusual hardship if she is removed to Mexico. See 8 U.S.C. § 1229b(b)(1)(D).



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-60015

      Castro first argues that the BIA erred in affirming the IJ’s finding that
any hardship to her children resulting from the separation of the family would
be a result of her personal choice to leave them in the United States rather than
a consequence of her removal. She asserts that Matter of Ige, 20 I. & N. Dec. 880
(BIA 1994), held that hardship to the children left in the United States is not
considered a result of the alien’s personal choice if the children would suffer
hardship in the country of removal. We would have jurisdiction to consider this
legal question. See 8 U.S.C. § 1252(a)(2)(B)(1), (a)(2)(D). However, because
Castro failed to present the claim to the BIA, it is unexhausted; therefore, we
lack jurisdiction to consider this claim and her petition for review is dismissed
in part. See § 1252(d)(1); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
Although Castro raised this claim to the BIA in a motion to reconsider, because
she did not file a separate petition for review from that motion, we would lack
jurisdiction to consider that motion. See Guevara v. Gonzales, 450 F.3d 173, 176
(5th Cir. 2006) (requiring separate petitions for review); Stone v. INS, 514 U.S.
386, 405 (1995) (stating that timely filing of petition for review is mandatory and
jurisdictional).
      Next, although the IJ stated that Castro must show that her removal
would result in an “exceptional and extremely unusual hardship” to her children,
she argues that the IJ and BIA effectively applied a higher “unconscionable
hardship” standard to her claim. Because Castro did not exhaust this claim
before the BIA, we lack jurisdiction to consider it and her petition for review is
dismissed in part. See Roy, 389 F.3d at 137.
      Castro argues that the BIA acted capriciously in denying relief because the
facts of her case are similar to, or are even more deserving of relief than, other
cases in which the IJ or BIA granted cancellation of removal. In effect, Castro
is asking this court to reweigh the discretionary decision to deny her application
for cancellation of removal. Because we do not have jurisdiction to do so, see
§ 1252(a)(2)(B)(i), her petition is dismissed in part.

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                                  No. 12-60015

      Finally, Castro argues that the IJ and BIA failed to comply with caselaw
requiring that the factors relevant to a hardship determination be considered in
the aggregate. As this presents a legal question, and Castro exhausted this
claim before the BIA, we do have jurisdiction to consider it. However, we find
that both the IJ and BIA recognized the requirement to consider the factors in
the aggregate but concluded that, even when considered in the aggregate, Castro
had not shown that the hardships her children would face rose to the level of an
“exceptional and extremely unusual hardship.” Because Castro has not shown
error on this point, her petition is denied in part.
      PETITION FOR REVIEW DISMISSED IN PART; DENIED IN PART.




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