United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 2, 2005
Charles R. Fulbruge III
Clerk
No. 04-61172
Summary Calendar
MARCO HERRERA,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 775 529
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Marco Herrera petitions for review of the decision of the
Board of Immigration Appeals (BIA) affirming the decision of the
immigration judge (IJ) that Herrera did not qualify for
cancellation of removal under 8 U.S.C. § 1229b(b)(1). Herrera
does not repeat assertions made at the administrative level that
he was entitled to relief under the Child Status Protection Act.
Any such argument is abandoned. See Calderon-Ontiveros v. INS,
809 F.2d 1050, 1052 (5th Cir. 1986). Although Herrera contends
that the IJ and the BIA did not fully and fairly consider
*
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this opinion should not be published and is not precedent except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.
No. 04-61172
-2-
evidence, he does not identify any evidence that was ignored.
Herrera is not entitled to relief on this ground.
Herrera asserts that the attorney representing him before
the BIA rendered ineffective assistance by failing to file a
brief on his behalf. He did not raise this claim before the BIA
through a motion to reopen. See Roy v. Ashcroft, 389 F.3d 132,
137 (5th Cir. 2004); Goonsuwan v. Ashcroft, 252 F.3d 383, 389-91
(5th Cir. 2001). Because Herrera did not exhaust his
administrative remedies with respect to this claim, this court
lacks jurisdiction to consider it. See Wang v. Ashcroft, 260
F.3d 448, 452-53 (5th Cir. 2001).
Herrera contends that he was entitled to cancellation of
removal because he established that both his mother and his
grandmother would suffer “exceptional and extremely unusual
hardship” if he were removed. 8 U.S.C. § 1229b(b)(1)(D).
Herrera never argued that his grandmother was a qualifying
individual under the statute, and he has thus failed to exhaust
administrative remedies. See Wang, 260 F.3d at 452-53.
Regardless, the claim is unavailing. See INS v. Hector, 479 U.S.
85, 88-90 (1986)(per curiam)(the BIA need not consider hardships
to individuals not defined in 8 U.S.C. § 1229b(b)(1)(D)).
Likewise, Herrera did not raise an argument about his mother’s
hardship before the BIA and the claim is unexhausted. See Wang,
260 F.3d at 452-53. Even if the BIA’s consideration of this
issue suffices to exhaust the claim, this court cannot review the
No. 04-61172
-3-
discretionary decision of the IJ. See Rueda v. Ashcroft, 380
F.3d 831, 831 (5th Cir. 2004).
PETITION DENIED.