                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                              FOR THE TENTH CIRCUIT                            January 16, 2020

                                                                             Christopher M. Wolpert
                                                                                 Clerk of Court
  SERGIO NAVA-HERNANDEZ,

                Petitioner,

  v.                                                            No. 19-9546
                                                            (Petition for Review)
  WILLIAM P. BARR, United States
  Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.



       After the United States Department of Homeland Security (“DHS”) initiated

removal proceedings against him, Sergio Nava-Hernandez requested cancellation of

removal under 8 U.S.C. § 1229b(b)(1). An immigration judge denied Mr. Nava-

Hernandez’s request because he failed to establish that removal would result in

exceptional and extremely unusual hardship to his U.S. citizen daughter, and the Board of



       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and 10th Circuit Rule 32.1.
Immigration Appeals (“BIA”) affirmed. Mr. Nava-Hernandez now petitions for review of

the BIA’s decision. Because we do not have jurisdiction over the arguments raised in the

petition, we dismiss.

                                         BACKGROUND

       On November 3, 2008, DHS issued Mr. Nava-Hernandez a Notice to Appear

(“NTA”) before an immigration judge in Denver, Colorado, to adjudicate his removal

from the United States. In the NTA, DHS alleged that Mr. Nava-Hernandez is a citizen of

Mexico who entered the United States without inspection in 1996. The NTA described

the “date” of Mr. Nava-Hernandez’s hearing as “a date to be set” and the “time” as “a

time to be set.” AR 677.

       Three days later, the Denver immigration court mailed Mr. Nava-Hernandez a

notice explaining that his case had been scheduled for a hearing on January 20, 2009, at

1:00 P.M. Over the subsequent decade, the immigration court mailed Mr. Nava-

Hernandez many similar notices, each of which specified a time and date for the relevant

proceeding. Finally, on January 31, 2018, the immigration court held a merits hearing to

adjudicate Mr. Nava-Hernandez’s removal.

       Mr. Nava-Hernandez conceded the charge in the NTA and moved for cancellation

of removal under 8 U.S.C. § 1229b(b)(1).1 Specifically, he argued that removal would



       1
           Section 1229b(b)(1) provides that:

The Attorney General may 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—
                                                2
result in exceptional and extremely unusual hardship to his seventeen-year old daughter.

Mr. Nava-Hernandez presented evidence—based on visits with therapists in 2011 and

2016—that his daughter suffers from depression or an anxiety disorder as a result of her

father’s long-pending removal from the United States. He also presented evidence that

she suffers from chronic asthma. Mr. Nava-Hernandez further argued that he would not

be able to support his family from Mexico.

       The immigration judge found Mr. Nava-Hernandez credible and a person of good

moral character, but nevertheless denied his application for cancellation of removal

because Mr. Nava-Hernandez failed to establish that his daughter would suffer

exceptional and extremely unusual hardship. In a written decision, the immigration judge

defined “exceptional and extremely unusual hardship” as “hardship that is substantially

different from or beyond that which would ordinarily be expected to result from the

alien’s deportation.” AR 54. The immigration judge then identified three factual reasons

why Mr. Nava-Hernandez fell short of meeting that standard: First, Mr. Nava-

Hernandez’s daughter “would not accompany him if he returns to Mexico.” AR 56.

Second, Mr. Nava-Hernandez did not present sufficient evidence “that his daughter’s

physical health, specifically her asthma, would be exacerbated if he were removed from


        (A) has been physically present in the United States for a continuous period of not
less than 10 years immediately preceding the date of such application;
        (B) has been a person of good moral character during such period;
        (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title, subject to paragraph (5); and
        (D) establishes that 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.
                                                 3
the United States.” AR 56. Third, Mr. Nava-Hernandez “is healthy and able to work.”

AR 57.

       Mr. Nava-Hernandez appealed to the BIA. In his merits brief before the BIA, Mr.

Nava-Hernandez argued the immigration judge had abused his discretion in undervaluing

the hardship that removal would impose on Mr. Nava-Hernandez’s daughter.

       On June 18, 2019, the BIA, acting through a single judge, dismissed the appeal.

The BIA summarized the immigration judge’s discussion of exceptional and extremely

unusual hardship and concluded the immigration judge “properly denied [Mr. Nava-

Hernandez’s] application for cancellation of removal.” AR 5.

       On July 11, 2019, Mr. Nava-Hernandez petitioned this court for review of the

BIA’s decision.

                                            ANALYSIS

       Congress has carefully circumscribed this court’s jurisdiction to review the BIA’s

decisions. Two of those limitations are relevant to this case. First, 8 U.S.C. § 1252(d)

provides that “[a] court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.” We have

“applied this statutory exhaustion requirement to conclude that [t]he failure to raise an

issue on appeal to the [BIA] constitutes failure to exhaust administrative remedies with

respect to that question and deprives the Court of Appeals of jurisdiction to hear the

matter.” Robles-Garcia v. Barr, 944 F.3d 1280, 1283 (10th Cir. 2019) (alterations in

original) (emphasis omitted) (internal quotation marks omitted).



                                                  4
       Second, 8 U.S.C. § 1252(a)(2)(B) provides that “no court shall have jurisdiction to

review . . . any judgment regarding the granting of relief under section . . . 1229b.” We

have interpreted “this subsection as referring to the discretionary aspects of a decision

concerning cancellation of removal.” Arambula-Medina v. Holder, 572 F.3d 824, 828

(10th Cir. 2009). “This includes any underlying factual determinations, as well as the

determination of whether the petitioner’s removal from the United States ‘would result in

exceptional and extremely unusual hardship’ to a qualifying relative under 8 U.S.C.

§ 1229b(b)(1)(D).” Id. (citation omitted). “We do, however, have jurisdiction to review

‘constitutional claims’ and ‘questions of law.’” Id. (quoting 8 U.S.C. § 1252(a)(2)(D)).

       Mr. Nava-Hernandez’s primary argument on appeal is that the BIA lacked

jurisdiction to order his removal because the NTA did not specify a time or date. We do

not have jurisdiction to consider this argument because Mr. Nava-Hernandez did not raise

it before the BIA.

       Mr. Nava-Hernandez responds that it would have been futile to make this

argument to the BIA because it rejected the same argument in In re Bermudez-Cota, 27

I. & N. Dec. 441 (BIA 2018). This argument is foreclosed by our decision in Robles-

Garcia. There, we noted the possibility that 8 U.S.C. § 1252(d)’s exhaustion requirement

might be amenable to a futility exception, but nevertheless held the petitioner was

required to ask the BIA to overturn In re Bermudez-Cota to supply this court with

jurisdiction. See Robles-Garcia, 944 F.3d at 1284 & n.3.2 For these reasons, we lack


       2
        Our decision in Robles-Garcia also answers Mr. Nava-Hernandez’s argument
that we have jurisdiction to consider his position for the first time on appeal because it
                                                 5
jurisdiction to consider Mr. Nava-Hernandez’s argument that the NTA in his case was

defective.3

       We also lack jurisdiction to consider Mr. Nava-Hernandez’s second argument;

namely, that the BIA erred in its evaluation of exceptional and extremely unusual

hardship. “If the BIA decides, in an exercise of agency discretion, an alien has not

produced sufficient evidence to warrant a finding of exceptional and extremely unusual

hardship, we cannot review that decision.” Alzainati v. Holder, 568 F.3d 844, 850 (10th

Cir. 2009); see also Arambula-Medina, 572 F.3d at 828.

       In his attempt to overcome this straightforward application of our precedents,

Mr. Nava-Hernandez invokes Prapavat v. INS, 662 F.2d 561 (9th Cir. 1981), a case in

which the Ninth Circuit held that the BIA abused its discretion in its hardship analysis.

Id. at 563. We need not engage in a detailed examination of the facts in Prapavat,

because that opinion predates Congress’s decision to bar judicial review of discretionary

§ 1229b decisions. See Illegal Immigration Reform and Immigrant Responsibility Act of

1996, Pub. L. No. 104–208, sec. 306(a), 110 Stat. 3009–546, 3009–607. Because

Mr. Nava-Hernandez’s disagreements with the BIA’s decision on whether he has shown




implicates the BIA’s jurisdiction. The petitioner in Robles-Garcia tried to advance the
same date/time position as Mr. Nava-Hernandez, and we required the petitioner to
comply with the normal rules of exhaustion.
       3
        Were we to reach the merits, recent circuit precedent would require that we reject
Mr. Nava-Hernandez’s argument. See Lopez-Munoz v. Barr, 941 F.3d 1013, 1018 (10th
Cir. 2019).
                                                 6
an exceptional and extremely unusual hardship are expressly covered by 8 U.S.C.

§ 1252(a)(2)(B), we do not have jurisdiction to review that ruling.

                                        CONCLUSION

       For the foregoing reasons, Mr. Nava-Hernandez’s petition for review is

DISMISSED for lack of jurisdiction.

                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge




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