                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 12 2005
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    MICAELA FRANCISCO JOSE,

                Petitioner,

    v.                                                   No. 03-9613
                                                    (BIA No. A23-726-343)
    JOHN ASHCROFT, Attorney General,                 (Petition for Review)

                Respondent.


                              ORDER AND JUDGMENT          *




Before HARTZ and BALDOCK , Circuit Judges, and           BRIMMER , ** District
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      The Honorable Clarence A. Brimmer, District Judge, United States District
Court for the District of Wyoming, sitting by designation.
      Petitioner Micaela Francisco Jose, an illegal alien who concedes that she is

removable as charged, is a native and citizen of Guatemala. She faces removal

from this country after having been here for almost twenty years. Petitioner seeks

review of the Immigration Judge’s (IJ) rulings that (1) she is not eligible for

special rule cancellation of removal under the Nicaraguan Adjustment and Central

American Relief Act (“NACARA”), Pub. L. No. 105-100, § 203, 1997

U.S.C.C.A.N. (111 Stat.) 2196-98; (2) she failed to establish a well-founded fear

of persecution to qualify for political asylum; and (3) she failed to establish under

8 U.S.C. § 1229b(b)(1)(D) that removal should be cancelled because her children

would suffer extreme, exceptional, and unusual hardship. The Board of

Immigration Appeals (BIA) affirmed the IJ’s decision without opinion, making it

the final agency determination.   See Alvarez-Delmuro v. Ashcroft , 360 F.3d 1254,

1255 (10th Cir. 2004).

      Because petitioner’s removal proceedings were commenced in October of

2000, this case is governed by the permanent rules of the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”).       See Tsevegmid v.

Ashcroft , 336 F.3d 1231, 1234 n.3 (10th Cir. 2003). Lacking jurisdiction to

directly review petitioner’s specific claims of error, we dismiss the petition.

      A. General cancellation.      Petitioner applied for general cancellation of

removal under 8 U.S.C. § 1229b(b)(1). After holding a hearing, the IJ determined


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that she had not established that her removal would work an “exceptional and

extremely unusual hardship” on her three children. § 1229b(b)(1)(D); Admin. R.

at 38. On appeal, petitioner asserts only that her hardship claim, which was

rejected by the IJ, should be “given great weight, so that she may be allowed to

remain here with them.” Pet. Br. at 15. Respondent correctly maintains that the

permanent judicial review statutes deprive this Court of jurisdiction to directly

review the IJ’s ruling denying cancellation of removal.         See § 1252(a)(2)(B)(i)

(providing that “no court shall have jurisdiction to review . . .    any judgment

regarding the granting of relief under section . . . 1229b . . .”); Alvarez-Delmuro,

360 F.3d at 1256-57; Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262

(10th Cir. 2003). We therefore dismiss this claim in the petition for review.

       B. Political asylum.      On her political asylum claim brought under

8 U.S.C. § 1158, petitioner asks only that the case be remanded so that she may

present further testimony. Pet. Br. at 13. As respondent points out, however,

under the permanent rules, we are prohibited from directing the Board to take

further evidence.    See 8 U.S.C. § 1252(a)(1) (providing that, in reviewing removal

orders, “the court may not order the taking of additional evidence under [28

U.S.C. § 2347(c)]”); 8 U.S.C. § 1252(b)(4)(A) (providing that “the court of

appeals shall decide the petition [for review] only on the administrative record on

which the order of removal is based”). We therefore also dismiss this claim.


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       C. Special rule cancellation.       Before IIRIRA was passed, the Attorney

General had the discretion to suspend the deportation of qualified aliens if certain

conditions were met. See 8 U.S.C. § 1254(a) (1996) (repealed). IIRIRA repealed

this authority and replaced it with a provision on “cancellation of removal,”

which contained more restrictive rules.     See § 1229b. One of the more restrictive

permanent rules is a “stop-clock” provision providing that, once an alien is served

with a notice to appear, the alien ceases to accrue time towards the residency

requirement in cancellation of removal proceedings.       See § 1229b(d).   Congress

amended this new scheme when it enacted the NACARA to create an exception

for qualifying aliens from Central America who could benefit from the less

stringent old rules, rather than the new IIRIRA rules. Under NACARA, the stop-

clock provision does not apply to Guatemalans who filed an application for

asylum before April 1, 1990.       See NACARA § 203(1), 1997 U.S.C.C.A.N

(111 Stat.) 2196-98 (amending § 309(c)(5) of IIRIRA). Further, under NACARA,

a qualifying Guatemalan may be granted cancellation of removal after only seven

years of continuous presence, instead of ten, and with only a showing of “extreme

hardship” instead of having to show an “exceptional and extremely unusual

hardship” to her citizen family.     See id. § 203(2), 111 Stat. 2198-99.




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       Although she had met the higher, 10-year continuous-residence requirement

notwithstanding any stop-clock provisions before her removal proceedings were

commenced, petitioner also applied for special-rule cancellation under IIRIRA

§ 309(f) 1 as amended by NACARA. After a hearing and additional briefing, the

IJ found that petitioner had not satisfied § 309(f)(1)’s requirement that she is an

alien described in § 309(c)(5)(C)(i),   i.e., that she applied for asylum before 1990.

Petitioner appeals from this threshhold finding.



1
       Section 309(f) is reprinted in the historical and statutory notes describing
the 1996 amendments to IIRIRA following 8 U.S.C. § 1101. In relevant part, the
statute reads:
(f) SPECIAL RULE FOR CANCELLATION OF REMOVAL–
       (1) IN GENERAL–Subject to the provisions of the Immigration and
Nationality Act (as in effect after the title III A effective date), other than
subsections (b)(1), (d)(1), and (e) of section 240A of such Act (but including
section 242(a)(2)(B) of such Act), the Attorney General may, under section 240A
of such Act, cancel removal of, and adjust to the status of an alien lawfully
admitted for permanent residence, an alien who is      inadmissible or deportable
from the United States, if the alien applies for such relief, the alien is described in
subsection (c)(5)(C)(i) of this section, and–
       (A) the alien–
       (i) is not inadmissible or deportable under paragraph (2) or (3) of section
212(a) or paragraph (2), (3), or (4) of section 237(a) of the Immigration and
Nationality Act and is not an alien described in section 241(b)(3)(B)(i) of such
Act;
       (ii) has been physically present in the United States for a continuous period
of not less than 7 years immediately preceding the date of such application;
       (iii) has been a person of good moral character during such period; and
       (iv) establishes that removal would result in extreme hardship to the alien
or to the alien’s spouse, parent, or child, who is a citizen of the United States or
an alien lawfully admitted for permanent residence.


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      But respondent asserts that we are precluded from directly reviewing this

finding under IIRIRA § 309(c)(5)(C)(ii), (amended by NACARA § 203(1),

111 Stat. 2197). This amendment provides that “[a] determination by the

Attorney General as to whether an alien satisfies the requirements of this clause

(i) [ inter alia, of being a Guatemalan national who filed an application for asylum

on or before April 1, 1990] is final and shall not be subject to review by any

court.” § 309(c)(5)(C)(ii). Petitioner does not counter this argument in her reply

brief but asserts only that exclusion orders are generally reviewable. We see no

reason not to apply the jurisdictional limitation.

      Further, amended IIRIRA § 309(f), which is an uncodified amendment to

§ 1229b, specifically states that it is subject to § 1252(a)(2)(B). IIRIRA

§ 309(f)(1). As discussed above, under the permanent rules, courts do not have

jurisdiction to directly review a judgment denying relief under §1229b.      See

§ 1252(a)(2)(B)(ii). Amended IIRIRA § 309(c)(5)(C)(ii) (which contains the

additional jurisdictional limitation) expressly provides that it does not limit the

application of § 1252(a)(2)(B). We conclude that we have no jurisdiction to

review a denial of relief for special cancellation of removal brought under

amended IIRIRA § 309(f).      Cf. Kharkhan v. Ashcroft , 336 F.3d 601, 604

(7th Cir. 2003) (dismissing petition for lack of jurisdiction because application

for special-rule cancellation of removal is request for relief under § 1229b, and


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review of discretionary decision to cancel removal under § 1229b is barred under

§ 1252(a)(2)(B)(i) & (ii));   Tsevegmid , 336 F.3d at 1235 (applying § 1158(a)(3),

which expressly provides that the courts do not have jurisdiction to directly

review Attorney General’s determinations made under § 1158(a)(2), as a

jurisdictional bar to review alien’s claims that he fell within exceptions listed

under § 1158(a)(2)) .

       The petition for review is DISMISSED.



                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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