                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT           FILED
                               ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                      No. 10-12186                   APR 8, 2011
                                                                      JOHN LEY
                                  Non-Argument Calendar                 CLERK
                                ________________________

                                  Agency No. A043-595-433


CONSUELO ELENA MORALES,

lllllllllllllllllllll                                                     Petitioner,

    versus

U.S. ATTORNEY GENERAL,

lllllllllllllllllllll                                                     Respondent.

                                ________________________

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

                                        (April 8, 2011)

Before EDMONDSON, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Consuelo Elena Morales, a pro se petitioner and a native and citizen of

Peru, petitions for review of the Board of Immigration Appeals’s (“BIA”) decision

affirming the Immigration Judge’s (“IJ”) denial of a waiver of inadmissibility,

under INA § 212(h), 8 U.S.C. § 1182(h), for a failure to demonstrate that her

daughter would experience extreme hardship if Morales were removed.

      We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). When a

statute limits our review, we “retain jurisdiction to determine the underlying

jurisdictional facts at issue.” Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262,

1266 (11th Cir. 2004). We have jurisdiction, under the REAL ID Act of 2005,1 to

decide questions of law or constitutional claims that an alien raises in a petition for

review of a final order of removal. Arias v. U.S. Att’y Gen., 482 F.3d 1281,

1283–84 (11th Cir. 2007) (per curiam).

                                              I.

      Morales first argues that the BIA and IJ unfairly exercised their discretion,

unreasonably adjudicated her claim, and committed prejudicial error when they

determined that she failed to demonstrate extreme hardship.




      1
          Pub. L. No. 109-13, 119 Stat. 231 (2005) [hereinafter “the REAL ID Act”].

                                               2
       An alien deemed inadmissible (i.e., removable) for being convicted of a

crime involving moral turpitude may apply for a waiver of inadmissibility if the

alien’s child is a United States citizen or lawful permanent resident and the alien’s

denial of admission would result in an “extreme hardship” to the child, and the

Attorney General has discretion to grant the waiver upon such a showing. See

INA §§ 212(a)(2)(A)(i)(I), (h)(1)(B), 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), (h)(1)(B).

Because the grant or denial of a waiver based on “extreme hardship” is

discretionary and does not present a constitutional claim or question of law, we

lack jurisdiction to review such a grant or denial. See INA §§ 242(a)(2)(B)(i),

(a)(2)(D), 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D) (as amended by the REAL ID

Act); Al Najjar v. Ashcroft, 257 F.3d 1262, 1297–98 (11th Cir. 2001) (analyzing

“extreme hardship” and the associated jurisdictional bar under the substantially

similar transitional IIRIRA2 rules).

       Because the BIA’s determination that Morales failed to demonstrate

extreme hardship did not involve a constitutional issue or question of law, we

dismiss these claims for lack of jurisdiction.

                                             II.



       2
          Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208,
110 Stat. 3009-546 (1996).

                                              3
       Next, Morales contends that the BIA and IJ violated due process3 and

committed a legal error by applying the wrong legal standard—requiring a

showing of rehabilitation and contrition for her past crimes—to her application for

a waiver of inadmissibility.

       We lack jurisdiction to review Morales’s due process claim for two reasons.

First, Morales’s failure to exhaust her due process claim before the BIA deprives

us of jurisdiction to review it. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1) (“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 . . . .”);

Amaya-Artunduaga, 463 F.3d at 1251 (“[Petitioner’s] allegation of a due process

violation—that he was denied a full and fair hearing before a neutral

factfinder—is precisely the kind of procedural error which requires exhaustion.”).

       Second, even if Morales had exhausted her due process claim, we would

lack jurisdiction to consider it because due process is not implicated by the denial

of discretionary immigration relief. Tefel v. Reno, 180 F.3d 1286, 1301–02 (11th

Cir. 1999) (concluding that because the failure to receive discretionary relief in an

immigration context does not implicate due process, the failure to be considered


       3
          Morales has abandoned any other constitutional claim. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam) (holding issue abandoned where appellant
failed to offer argument on the issue).

                                              4
for discretionary immigration relief cannot implicate due process). Therefore, we

lack jurisdiction over Morales’s due process claim, and it is hereby dismissed.

      However, we do have jurisdiction to consider the legal question of whether

the IJ and BIA applied the wrong legal standard when they evaluated Morales’s

application for a waiver of inadmissibility. See Frech v. U.S. Att’y Gen., 491 F.3d

1277, 1281 (11th Cir. 2007). We review only the BIA’s decision, but to the extent

that the BIA expressly adopts the IJ’s opinion or adopts the IJ’s reasoning, we

review the IJ’s decision as well. Al Najjar, 257 F.3d at 1284.

      In this case, the BIA adopted the IJ’s reasoning concerning Morales’s

failure to demonstrate the requisite extreme hardship to a qualifying relative to

establish her eligibility for a waiver of inadmissibility under INA § 212(h), 8

U.S.C. § 1182(h). But having made that determination, the BIA explicitly refused

to consider whether Morales’s circumstances merited a favorable exercise of

discretion in connection with her application. The BIA did not adopt the IJ’s

opinion or reasoning regarding factors not listed within INA § 212(h)(1)(B),

8 U.S.C. § 1182(h)(1)(B). Consequently, we will not review that portion of the

IJ’s opinion, Al Najjar, 257 F.3d at 1284, and we deny Morales’s claim concerning

the application of an incorrect legal standard.

      PETITION DISMISSED IN PART AND DENIED IN PART.


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