                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LIAN BING TAN, a.k.a. Judy Yee,                  No. 08-71473

             Petitioner,                         Agency No. A044-196-590

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,

             Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted February 15, 2011
                              Pasadena, California

Before: GOODWIN, KLEINFELD, and GRABER, Circuit Judges.


       Lian Bing Tan, a native citizen of the People’s Republic of China and lawful

permanent resident since 1994, petitions for review of the Board of Immigration

Appeals’ (BIA) dismissal of her appeal of an immigration judge’s (IJ) order

denying her request for a waiver under 8 U.S.C. § 1227(a)(7) and for cancellation



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of removal. The BIA found that Tan’s conviction for child endangerment under

California Penal Code section 273a(a) was an aggravated felony, as a “crime of

violence” under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b), precluding her

from cancellation of removal.




      We need not reach the issue of the BIA’s application of the modified

categorical approach to Tan’s conviction under California Penal Code

section 273a(a), because the BIA also denied her application for cancellation of

removal on the ground that, regardless, she would not receive a favorable exercise

of discretion. See, e.g., Martinez-Rosas v. Gonzales, 424 F.3d 926, 929–30 (9th

Cir. 2005) (citing 8 U.S.C. 1229b). By statute, we lack jurisdiction over the BIA’s

unfavorable discretionary decision, so Tan cannot obtain relief. 8 U.S.C. §

1252(a)(2)(B)(i).




      Petitioner’s arguments with respect to the discretionary decision are factual

in nature, although clothed as a legal argument. See Martinez-Rosas, 424 F.3d at

930. Even if we addressed her arguments on the merits, they would fail. The BIA

did balance all relevant positive and negative factors as required under our case

law. Kalubi v. Ashcroft, 364 F.3d 1134, 1139 (9th Cir. 2004). Additionally, we


                                          2
lack jurisdiction to consider Tan’s argument about the use of her statements from

her bond hearing because she failed to raise it in her brief to the BIA. Abebe v.

Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam), cert. denied,

130 S. Ct. 3272 (2010).




      The petition for review is therefore DENIED.




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