                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     February 16, 2010
                                                                        Elisabeth A. Shumaker
                                   TENTH CIRCUIT                            Clerk of Court




 ANDERSON BENTO,

        Petitioner,                                          No. 09-9543
                                                    (Board of Immigration Appeals)
 v.

 ERIC H. HOLDER, JR., United States
 Attorney General,

        Respondent.


                              ORDER AND JUDGMENT*


Before HARTZ, SEYMOUR and EBEL, Circuit Judges.


       Petitioner Anderson Bento seeks review of the decision of the Board of

Immigration Appeals (“BIA”) denying his request for cancellation of removal, see 8

U.S.C. § 1229b(b)(1). We GRANT Bento’s application to proceed in forma pauperis.

See 28 U.S.C. § 1915. But because we lack jurisdiction to consider his petition for


*After examining the parties’ briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
petition for review. See Fed. R. App. P. 34(a)(2) and 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
review, see 8 U.S.C. § 1252(a)(2)(B)(i), we DISMISS it.

I. Background

      Bento is a citizen of Brazil who in 1990, at age ten, entered the United States with

his mother as a temporary visitor and failed to leave. In 1999, he married a United States

citizen; the couple had a daughter in January 2000). Immigration officials detained Bento

in September 2008, while he was serving a six-day sentence in California for petty theft,

and he has been in immigration officials’ custody ever since.

II. Decision to deny cancellation of removal

      Before the Immigration Judge (“IJ”), Bento conceded removability, but requested

that his removal be cancelled.

             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—

             (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 (except in a
             case described in section 1227(a)(7) of this title where the
             Attorney General exercises discretion to grant a waiver); 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 resident.

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8 U.S.C. § 1229b(b)(1). It was Bento’s burden to prove that he was eligible for such

relief and that such relief should, in the exercise of discretion, be granted. See Garcia v.

Holder, 584 F.3d 1288, 1289-90 (10th Cir. 2009) (citing 8 C.F.R. § 1240.8(d)).

       After a hearing, the IJ held that, while Bento had been in the United States for at

least ten years immediately preceding his application for the cancellation of removal, he

failed to meet any of 8 U.S.C. § 1129b(b)(1)’s remaining three requirements for

cancellation of removal. A single member of the BIA upheld that determination, based

solely upon Bento’s failure to establish that his removal would present an exceptional and

extremely unusual hardship for his wife and daughter. Bento now seeks review of that

decision. “In these circumstances, the BIA’s order is the final order under review but we

may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.”

Hamilton v. Holder, 584 F.3d 1284, 1286 (10th Cir. 2009) (quotation omitted).

       This court lacks jurisdiction to review “the discretionary aspects of a decision

concerning cancellation of removal,” but can consider a constitutional or legal challenge

to the BIA’s decision. Arambula-Medina v. Holder, 572 F.3d 824, 827-28 (10th Cir.

2009) (applying 8 U.S.C. § 1252(a)(2)(B)(i)), petition for cert. filed, 78 U.S.L.W. 3362

(U.S. Dec. 7, 2009) (No. 09-664); see also Garcia, 584 F.3d at 1289 n.2. Bento, however,

fails to assert any legal or constitutional challenge to the BIA determination that he failed

to establish that his removal would cause an exceptional and extremely unusual hardship

for his wife and daughter. We, therefore, have no jurisdiction to review his petition. See

Arambula-Medina, 572 F.3d at 828 (holding appeals court had no jurisdiction to review
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determination that petitioner’s removal would not result in exceptional and extremely

unusual hardship to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D))

III. Conclusion

      We DISMISS Bento’s petition for review for lack of jurisdiction.

                                         ENTERED FOR THE COURT



                                         David M. Ebel
                                         Circuit Judge




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