                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                                                                    U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                      SEPTEMBER 5, 2007
                                        No. 06-14505
                                                                       THOMAS K. KAHN
                                                                            CLERK

                        BIA Nos. A97-631-760 & A97-631-761

ERROL PHILEMON TUCKER,
COLLETTE ELIZABETH TUCKER,
TONI J. TUCKER,

                                                           Petitioners,

                                            versus

U.S. ATTORNEY GENERAL,

                                                           Respondent.



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


                                   (September 5, 2007)

Before DUBINA and MARCUS, Circuit Judges, and PROCTOR,* District Judge.

PER CURIAM:
_______________________
*Honorable R. David Proctor, United States Judge for the Northern District of Alabama, sitting
by designation.
      Errol Tucker (“Mr. Tucker”), his wife, Collette Tucker (“Mrs. Tucker”), and

their daughter, Toni-Jhay Tucker (“Toni”) (collectively “Petitioners”), through

counsel, seek review of the Board of Immigration Appeal’s (“BIA”) decision,

adopting and affirming the Immigration Judge’s (“IJ”) order denying cancellation

of removal pursuant to the Immigration and Naturalization Act (“INA”) §

240A(b), 8 U.S.C. § 1229b(b)(1). In their petition, Petitioners argue that the IJ

erred in determining that Mrs. Tucker and Toni did not establish the requisite ten

years of continuous physical presence in the United States necessary to

demonstrate their eligibility for cancellation of removal. Also, Petitioners argue

that the IJ violated their due process rights by failing to act as an impartial and

neutral fact-finder because she focused on the fact that Petitioners had a history of

unauthorized employment in the United States.

                                  BACKGROUND

      Mr. Tucker, Mrs. Tucker and Toni, citizens of Jamaica, each received a

notice to appear, informing them that they were subject to removal from the

United States and ordering them to appear in removal hearings before an IJ. In

their hearing, the IJ first determined that Mrs. Tucker and Toni were ineligible for

cancellation of removal because they had been absent from the United States for

approximately 348 days during the ten years prior to the service of their notice to

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appear, in excess of the statutory limitation of 180 days. Thus, the IJ did not hear

the application for cancellation of removal as to Mrs. Tucker and Toni. The IJ

determined that only Mr. Tucker was eligible to be heard on his application for

cancellation of removal. Nevertheless, the IJ determined that Mr. Tucker did not

meet the burden of proof for cancellation of removal because he did not establish

that his removal would result in exceptional and extremely unusual hardship for

Toni and his two United States citizen children.

      In their appeal to the BIA, Petitioners argued that the IJ had not properly

balanced the equities involved with Mr. Tucker’s application for cancellation of

removal. They argued that the IJ had given “undue weight” to the “negative

factor” that Mr. and Mrs. Tucker had been employed without authorization from

the United States government, so that the immigration judge “failed to fairly weigh

all the factors and make a balancing of the cumulative facts presented.” They also

argued that the IJ had improperly pretermitted the applications of Mrs. Tucker and

Toni because the 180-day absence limitation was not applicable because Mrs.

Tucker and Toni had been absent for “good cause.” The BIA confirmed the

decision of the IJ without opinion.

                           STANDARD OF REVIEW




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      When “the BIA summarily affirms the IJ’s decision without an opinion,

such as here, the IJ’s decision becomes the final removal order subject to review.”

Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1254 (11th Cir. 2006) (per curiam). To the

extent that the BIA’s decision was based on a legal determination, our review is de

novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001).

                                  DISCUSSION

A.    Continuous Physical Presence

      Petitioners argue that, by determining that Mrs. Tucker and Toni had “a

break in continuous presence,” the IJ erroneously interpreted the requirement that

an alien seeking cancellation of removal have “continuous physical presence” in

the United States for at least ten years. They argue that: (1) Mrs. Tucker

continually resided in the United States, not Jamaica, and only returned to Jamaica

periodically to finish her education; and (2) Toni was absent only because she was

an infant during that time and had to remain with Mrs. Tucker.

      The INA allows a nonpermanent alien in removal proceedings to apply for

cancellation of removal if the alien “has been physically present in the United

States for a continuous period of not less than 10 years immediately preceding the

date of such application.” INA § 240A(b)(1)(A), 8 U.S.C. § 1229b(b)(1)(A). The

INA clarifies that an alien “shall be considered to have failed to maintain

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continuous physical presence in the United States . . . for any period in excess of

90 days or for any periods in the aggregate exceeding 180 days.” Id. §

1229b(d)(2). The only exception to the 90/180 day limits provided in the statute is

when an alien is absent in connection with being battered or subjected to extreme

cruelty by a parent or spouse, those absences do not count toward the 90/180 day

limits. Id. § 1229b(b)(2). While the INA once provided that “brief, casual, and

innocent” departures were not breaks in continuous presence, the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which

revised that definition, did not include that language. See 8 U.S.C. § 1254(b)(2)

(repealed 1996); INA § 240A(d)(2), 8 U.S.C. § 1229b(d)(2); see also Assa’ad v.

U.S. Att’y Gen., 332 F.3d 1321, 1331-32 (11th Cir. 2003) (citing the previous

definition of a “continuous physical presence”).

         Because the statutory language is clear, the IJ correctly determined that an

alien’s intent to reside in the United States, while absent from the country, is

irrelevant in determining whether an alien meets the “continuous physical

presence” requirement. Accordingly, we deny the petition for review as to this

issue.

         B. Due Process




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      We do not have jurisdiction to hear Petitioners’ claim that the IJ violated

their due process rights by failing to act as an impartial and neutral fact finder,

because Petitioners have not administratively exhausted this claim before the BIA.

Generally, we lack jurisdiction to consider a claim for review unless the petitioner

has exhausted his administrative remedies with respect to that claim. INA §

242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d

1247, 1251 (11th Cir. 2006) (per curiam). We have recognized that “[s]ome courts

have indicated in dicta that . . . some due process claims do not require exhaustion,

because the BIA does not have the power to adjudicate those claims. Nonetheless,

[t]hose same courts . . . have held that where the claim is within the purview of the

BIA which can provide a remedy, the exhaustion requirement applies with full

force.” Amaya-Artunduaga, 463 F.3d at 1251 (quotation marks and citations

omitted) (alterations in original). In this case, just as in Amaya-Artunduaga, the

“allegation of a due process violation – that [Petitioners were] denied a full and

fair hearing before a neutral factfinder – is precisely the kind of procedural error

which requires exhaustion.” Id. In their brief to the BIA, petitioners argued only

that the IJ gave undue weight to Mr. and Mrs. Tucker’s illegal work history when

balancing Mr. Tucker’s equities to determine eligibility for relief under




                                           6
cancellation of removal. Accordingly, we do not have jurisdiction over

Petitioner’s due process claim.

       Furthermore, to the extent Petitioners are requesting that we review the

discretionary determination of the IJ that they had not proven “exceptional and

extremely unusual hardship,” INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D),

we do not have jurisdiction to review that determination. See id. §

1252(a)(2)(B)(i) (“[N]o court shall have jurisdiction to review . . . any judgment

regarding the granting of relief under section . . . 1229b . . . of this title.”).

       Accordingly, we dismiss the petition for review as to this issue.

       PETITION DISMISSED IN PART AND DENIED IN PART.




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