UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ SAMUEL RODRIGU EZ-MENDOZA, Petitioner,

v. LORETTA E. LYNCH, United States Attorney General, Respondent. No. 15-9558 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , McKAY , and O’BRIEN , Circuit Judges.

________________ _________________ Samuel Rodriquez-Mendoza, a native a nd citizen of Mexico, petitions for review of a decision of the Board of Immi gration Appeals (BIA) that affirmed the immigration judge’s (IJ) decisi on denying his application for cancellation of removal. We dismiss the petition for lack of jurisdiction. Petitioner unlawfully entered the United States in 1999 and was served with a notice to appear in 2009. He sought relief unde r 8 U.S.C. § 1229b(b)(1), which

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### July 11, 2016
Elisabeth A. Shumaker Clerk of Court2 permits the Attorney Genera l to cancel removal of an inadmissible or deportable alien who (A) has been physically present in the United States for a continuous period of not less than 10 years immediat ely preceding the date of [his] application; (B) has been . . . of good moral character during such period; (C) has not been convicted of [a specified] offense . . . ; and (D) establishes that removal would result in exceptional and extremely unusual hardship to [his qualifying relatives]. The IJ determined petitioner met the requirements of subparagraph (C), but failed to meet subsections (A), (B), and (D). And even if petitioner had established the physical presence a nd good moral character required by subsections (A) and (B), the IJ found he fa iled to prove his removal would result in exceptional and extremely unusual hardsh ip to his qualifying relatives under subsection (D). At the time of the merits hearing in May 2014, petitioner’s qua lifying relatives for purposes of considering the hardship factor we re his United States born children, ages 13, 11, and 5. He testified they had no hea lth problems and were doing fine in school. Petitioner worked in Montana, and he came home once a month to visit his family in Utah. His wife worked full time, and had re cently become involved with another man by whom she was pregnant. Petitioner said if he were removed to Mexico, he would take his children with him. He testified he still had family living in Mexico. Petitioner testified there were fewer e ducational opportunities in Mexico, he would not be able to find wo rk, and there is “a lot crim e where I am from.” Admin.3 R. at 117. The IJ, while “ not unsympathetic to the hard ship [petitioner’s] children would face in Mexico,” concluded that “the hardship . . . is not significantly different in type of severity which would ordinarily be expected upon the removal of a close family member.” Id . at 78 (citing In re Monreal-Aguinaga , 23 I. & N. Dec. 56 (BIA 2001)). Petitioner appealed to the BIA, which he ld the IJ had corr ectly concluded he had not established exceptional or extremel y unusual hardship. The BIA determined it did not need to address the residency or good moral char acter requirements, because petitioner would not be eligible fo r cancellation of removal in light of his failure to prove the required hardship. This court lacks jurisdiction to review “any judgment regarding the granting of relief under section . . . 1229b.” 8 U.S. C. § 1252(a)(2)(B)(i). To avoid this proscription on our jurisdiction, petitioner ar gues the IJ failed to apply the proper legal standards and consider all the relevant evidence in deciding he did not meet the residency requirement and wa s not of good moral character . But the BIA’s decision turned on petitioner’s fa ilure to prove the required ha rdship—not residency or good moral character, and that is the ground we review. See Sarr v. Gonzales , 474 F.3d 783, 790 (10th Cir. 2007) (“A reviewing court, in deali ng with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grou nds invoked by the agency.”) (brackets and internal quotation marks omitted)). And as to the BIA’s deci sion regarding undue4 hardship, petitioner does not argue it was anything other than an exercise of discretion by the Attorney General, whic h we lack jurisdiction to review. We dismiss the petition for lack of jurisdiction.

Entered for the Court

Terrence L. O’Brien Circuit Judge