United States Court of Appeals
For the First Circuit
No. 04-2059
IMMACULADA BENCOSME DE RODRIGUEZ,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,*
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya and Lipez,
Circuit Judges.
Michael D. Greenberg and Law Offices of Michael D. Greenberg,
on brief for petitioner.
Virginia Lum, Attorney, Office of Immigration Litigation,
Peter D. Keisler, Assistant Attorney General and Greg D. Mack,
Senior Litigation Counsel, on brief for respondent.
December 29, 2005
*
Alberto Gonzales was sworn in as United States Attorney
General on February 3, 2005. We have substituted him for John
Ashcroft, previous holder of that office, as the respondent. See
Fed. R. App. P. 43(c)(2).
Per Curiam. Immaculada Bencosme de Rodriguez, a native
and citizen of the Dominican Republic, petitions for review of the
decision of the Board of Immigration Appeals ("BIA") affirming the
denial of her application for cancellation of removal. The
Immigration Judge ("IJ") determined, inter alia, that the
petitioner had failed to establish that removal would result in
"exceptional and extremely unusual hardship" to her United States
citizen children. 8 U.S.C. § 1229b(b)(1)(D). We lack jurisdiction
to review this discretionary decision. Id. § 1252(a)(2)(B)(i); see
Bernal-Vallejo v. INS, 195 F.3d 56, 59-60 (1st Cir. 1999). See
also Leyva v. Ashcroft, 380 F.3d 303, 305-306 (7th Cir. 2004)(court
lacks jurisdiction to review "exceptional and extremely unusual
hardship" determination); Mendez-Moranchel v. Ashcroft, 338 F.3d
176, 179 (3rd Cir. 2003)(similar); Romero-Torres v. Ashcroft, 327
F.3d 887, 892 (9th Cir. 2003) (similar).
Relatedly, we will not review the petitioner's claim that
improper judicial conduct by the Immigration Judge violated her due
process rights because the petitioner failed to raise this claim in
her appeal to the BIA and therefore failed to exhaust her
administrative remedies. 8 U.S.C. § 1252(d)(1); see Sayyah v.
Farquharson, 382 F.3d 20, 24 (1st Cir. 2004); see also Olujoke v.
Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005)(doctrine of exhaustion
of administrative remedies bars effort to raise claim in petition
for review where petitioner "failed to make any developed
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argumentation in support of that claim before the BIA"). While
"[t]here are some claims of denial of due process or deprivation of
constitutional rights that are exempt from this exhaustion
requirement because the BIA has no power to address them," Bernal-
Vallejo, 195 F.3d at 64, the petitioner's claim does not fall into
this exception, see Sayyah, 383 F.3d at 27 (noting that BIA has
authority to address petitioner's claim of bias and misconduct by
Immigration Judge).
Also pending before the court are the petitioner's
timely-filed motions to stay removal and to toll the period of
voluntary departure. See Bocova v. Gonzales, 412 F.3d 257, 268
(1st Cir. 2005)(to obtain stay of voluntary departure period, an
alien must, at the threshold, explicitly ask for a stay of
voluntary departure, and must do so "before the expiration of the
period of voluntary departure allotted by the BIA"). We grant, as
a matter of equity, the petitioner's motions to stay removal and to
toll the voluntary departure period nunc pro tunc to August 6, 2004
(the date on which she filed her timely motion to stay). The stays
will expire when mandate issues in this case, and the petitioner
will then have the remaining two days of her unexpired voluntary
departure period to depart the United States on her own volition.
See id. at 270.
The petition for review is denied. The motions to stay
removal and to toll the voluntary departure period are granted nunc
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pro tunc to August 6, 2004, and will expire upon issuance of
mandate.
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