     Case: 09-60177     Document: 00511202224          Page: 1    Date Filed: 08/12/2010




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

                                                 FILED
                                                                           August 12, 2010
                                     No. 09-60177
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

GUADALUPE MUNOZ,

                                                   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. A73 971 600


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Guadalupe Munoz, a native and citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (BIA) dismissing the appeal of an
order of removal and an order of the BIA denying her motion to reconsider and
reopen.     Munoz asserts that the BIA erred by engaging in impermissible
factfinding when it stated that Munoz claimed on appeal that the Immigration
Judge (IJ) improperly denied voluntary departure and that no evidence existed
in the record that Munoz had applied for this form of relief. Asserting that,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60177

under 8 C.F.R. § 1003.1(d)(3)(iv), the BIA lacks the power to make findings of
fact in the first instance, she requests that this court vacate the BIA decisions
and remand the matter to the BIA for further consideration.
      A court can review a final order of removal only when “the alien has
exhausted all administrative remedies available to the alien as of right”.
8 U.S.C. § 1252(d); Omari v. Holder, 562 F.3d 314, 318 (5th Cir. 2009).
“Petitioners fail to exhaust their administrative remedies as to an issue if they
do not first raise the issue before the BIA, either on direct appeal or in a motion
to reopen.” See Omari, 562 F.3d at 318 (citing Heaven v. Gonzales, 473 F.3d 167,
177 (5th Cir. 2006); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001)). An
exception to the exhaustion requirement exists for claims of due-process
violations, “except for procedural errors that are correctable by the BIA”. Roy
v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
      Contrary to Munoz’ assertions, her motion to reconsider and reopen
neither reasserted her initial due-process claim relating to voluntary departure
nor asserted the claim she now presents to this court—that the BIA engaged in
impermissible factfinding when it determined that no evidence existed in the
record that Munoz had applied for voluntary departure. Munoz’ motion to
reconsider and reopen was an available and adequate means of presenting this
claimed error to the BIA before asserting it here, which is required under §
1252(d). See Omari, 562 F.3d at 320-21. “Because [Munoz] has failed to exhaust
[her] administrative remedies as to this issue, § 1252(d) jurisdictionally bars
[this court] from addressing it.” Id. at 321.
      Munoz also asserts that the BIA erred in denying cancellation of removal
and in not addressing certain challenges concerning the IJ’s bias and Munoz’
asylum application. Under 8 U.S.C. § 1252(a)(2)(B)(i), this court generally does
not have jurisdiction to review any judgment regarding the granting or denying
of discretionary relief in the form of cancellation of removal. Where the appeal
involves constitutional claims or questions of law, this court does have

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                                No. 09-60177

jurisdiction. See 8 U.S.C. § 1252(a)(2)(D). Although Munoz attempts to claim
otherwise, essentially, she disagrees with the discretionary decision to deny
cancellation of removal. Munoz’ appeal does not involve a constitutional claim
or a question of law. Accordingly, we lack jurisdiction to review this issue. See
Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004)
      Munoz also contends that, because the BIA failed to specifically address
certain issues, it failed to give meaningful consideration to her appeal and
motion to reconsider and reopen. Even if the BIA’s decision does not touch on
every disputed fact, it does not mean that the BIA did not consider all of Munoz’
presented facts and allegations. See Osuchukwu v. INS, 744 F.2d 1136, 1142-43
(5th Cir. 1984) (“[The BIA] has no duty to write an exegesis on every contention.
What is required is merely that it consider the issues raised, and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has
heard and thought and not merely reacted”.). The BIA considered Munoz’ stated
issues.
      Finally, to the extent Munoz claims her due-process rights were violated
because the IJ exhibited bias against her, her claims are unavailing. Munoz has
failed to demonstrate that the IJ either held a personal bias against her or
demonstrated pervasive bias and prejudice. See Matter of Exame, 18 I & N Dec.
303, 306 (BIA 1982); see also Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
      DISMISSED.




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