     Case: 11-60583     Document: 00511905067         Page: 1     Date Filed: 06/29/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 29, 2012
                                     No. 11-60583
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CANDELARIA HERNANDEZ, also known as Candelaria Reyes Ortiz,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A089 529 944


Before DAVIS, DeMOSS, HAYNES, Circuit Judges.
PER CURIAM:*
        Candelaria Hernandez petitions for review of the decision of the Board of
Immigration Appeals (BIA) dismissing her appeal from the decision of the
Immigration Judge (IJ) denying her application for cancellation of removal
under 8 U.S.C. § 1229b(b). The application was based on the hardships her
spouse, who is a lawful permanent resident, and her children, who were all born
in this country, would suffer upon Hernandez’s removal from this country. The
IJ’s decision denying relief was based on a determination that Hernandez had

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60583    Document: 00511905067      Page: 2   Date Filed: 06/29/2012

                                    No. 11-60583

not demonstrated that her qualifying relatives would suffer an “exceptional and
extremely unusual hardship” as required by § 1229b(b)(1)(D). The BIA agreed
with the IJ’s determination.
      Hernandez argues that the IJ and the BIA erred in considering only the
current hardships her family is suffering as a result of her removal proceedings
and committed legal error by failing to consider the future hardships that will
result if she is removed to Mexico. Although we lack jurisdiction to review the
denial of discretionary relief under § 1229b, we may consider the legal argument
presented by Hernandez.         See 8 U.S.C. § 1252(a)(2)(B)(i) & (a)(2)(D).
Hernandez’s argument is based on her contention that the pertinent
consideration here is future-oriented. The Ninth Circuit has agreed with this
contention.   Figueroa v. Mukasey, 543 F.3d 487, 497-98 (9th Cir. 2008).
Assuming, without deciding, that the § 1229(b)(1)(D) hardship inquiry is future-
oriented, the record does not reflect that the IJ or the BIA failed to consider the
future hardships asserted here. To the extent that Hernandez argues that the
BIA committed legal error in considering her application for relief, her petition
for review is denied.
      Hernandez also argues that In re Andazola-Rivas, 23 I&N Dec. 319, 322
(BIA 2002), and In re Monreal-Aguinaga, 23 I&N Dec. 56, 62-64 (BIA 2001), two
BIA decisions that are “the starting points for any analysis of exceptional and
extremely unusual hardship” for purposes of § 1229b(b), In re GonzalezRecinas,
23 I&N Dec. 467, 469 (BIA 2002), were wrongly decided. Hernandez did not
present these arguments to the BIA on appeal, and she did not file a motion to
reopen or a motion for reconsideration of the BIA’s decision. See 8 C.F.R.
§ 1003.2(b)(1); Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001). She
has failed to exhaust her administrative remedies with regard to these
arguments, and we lack jurisdiction to consider them. See Omari v. Holder, 562
F.3d 314, 320-21 (5th Cir. 2009).
      PETITION FOR REVIEW DENIED IN PART; DISMISSED IN PART.

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