                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                            No. 09-13965                  ELEVENTH CIRCUIT
                                                              APRIL 23, 2010
                        Non-Argument Calendar
                                                               JOHN LEY
                      ________________________
                                                                CLERK

                        Agency No. A070-793-162

JOSE PEDRO JUAN,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                             (April 23, 2010)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
      Jose Pedro Juan petitions this Court for review of the Board of Immigration

Appeals’ (BIA) dismissal of his appeal of the Immigration Judge’s (IJ) denial of

his application for cancellation of removal, and its dismissal of his claims of

ineffective assistance of counsel at his removal hearing. On appeal, Juan argues

(1) the BIA and IJ erred in denying his application for cancellation of removal, and

(2) he received ineffective assistance of counsel before the IJ. After review, we

dismiss Juan’s petition in part and deny in part.

                                           I.

      Juan argues the BIA erred in affirming the IJ’s decision finding his children

would not suffer exceptional and unusually extreme hardship by returning to

Guatemala or being left in the United States.

      We review our subject matter jurisdiction de novo. Sanchez Jimenez v. U.S.

Att’y Gen., 492 F.3d 1223, 1231 (11th Cir. 2007).

      The Attorney General may cancel removal of an alien if the alien establishes

“removal would result in exceptional and extremely unusual hardship to the alien’s

spouse, parent, or child, who is a citizen of the United States or an alien lawfully

admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). Under 8 U.S.C.

§ 1252(a)(2)(B), which specifies matters not subject to judicial review concerning

discretionary relief, “no court shall have jurisdiction to review . . . (i) any judgment

regarding the granting of relief under section . . . 1229b . . . .” Thus, we lack
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jurisdiction to review the BIA’s “exceptional and extremely unusual hardship”

determinations. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1222 (11th Cir. 2006).

      Subsequent to our holding in Martinez, the Supreme Court considered

whether federal courts retained jurisdiction to review discretionary decisions by the

BIA in denying motions to reopen, and noted judicial review was barred on matters

where the Attorney General was given discretion under statute. Kucana v. Holder,

130 S. Ct. 827, 837 (2010). The Supreme Court stated courts retained jurisdiction

where discretion was granted by regulation, distinguishing between “decisions

specified by statute ‘to be in the discretion of the Attorney General,’ and therefore

shielded from court oversight,” and those “made discretionary by regulation,”

including motions to reopen. Id. Notably, the Court referenced § 1229b as one of

the statutory provisions entrusted by statute to the discretion of the Attorney

General. Id. at 836.

      We lack jurisdiction to review the denial of Juan’s application for

cancellation of removal. Martinez, 446 F.3d at 1222; 8 U.S.C. § 1252(a)(2)(B).

The Supreme Court’s holding in Kucana does not change this result, but rather

affirms our interpretation by noting § 1229b is one provision explicitly entrusted to

the discretion of the Attorney General by statute and barred from judicial review.

Kucana, 130 S. Ct. at 829, 832, 836.



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                                          II.

      Juan contends he received ineffective assistance of counsel before the IJ

because his attorney failed to present evidence to support his arguments.

      Where represented by counsel, aliens are entitled to effective assistance of

counsel under the Fifth Amendment’s due process clause. See Mejia Rodriguez v.

Reno, 178 F.3d 1139, 1146 (11th Cir. 1999) (deportation). “[A]n alien must

establish that his or her counsel’s performance was deficient to the point that it

impinged the ‘fundamental fairness’ of the hearing.” Id. However, “an attorney's

deficient representation does not deprive an alien of due process if the deficient

representation merely prevents the alien from being eligible for suspension of

deportation.” Id. at 1148. We have held the same rationale applied in precluding

relief in applications for cancellation of removal. Mohammed v. Ashcroft, 261 F.3d

1244, 1250-51 (11th Cir. 2001).

      Because cancellation of removal is discretionary by statute, we cannot grant

relief for ineffective assistance of counsel. Mejia Rodriguez, 178 F.3d at 1148;

Mohammed, 261 F.3d at 1250-51. Even assuming Juan had a constitutional right

to discretionary relief from removal, he cannot establish his counsel’s performance

prejudiced him.

      DISMISSED IN PART, DENIED IN PART.



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