NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUDY PEREZ-PEREZ, AKA Sandra Perez, Petitioner,

v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. No. 15-71658 Agency No. A097-469-497
MEMORANDUM *

On Petition for Review of an Order of the Board of Im m igration Appeals Subm itted August 28, 2018 * * Pasadena, California Before: BYBEE and WATFORD, Circuit Judges, and HERNANDEZ, * * * District Judge. 

# FILED
AUG 30 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

* * The panel unanim ously concludes this case is suitable for decision without oral argum e nt. See Fed. R. App. P. 34(a)(2).

* * * The Honorable Marco A. Hernandez, United States District Judge for the District of Oregon, sitting by designation.Judy Perez-Perez petitions for review of the Board of Im m igration Appeals’

(“BIA”) decision to deny her application for “special-rule” cancellation of rem oval under the Im m igration and Nationality Act (“INA” or “Act”) § 240A(b)(2), 8 U.S.C. § 1229b(b)(2). We have jurisdiction under 8 U.S.C. § 1252. Our review is de novo. Molina-Estrada v. INS , 293 F.3d 1089, 1093 (9th Cir. 2002). For the reasons stated below, we deny the petition for review. I. Petitioner’s Tw o Sons Were Not “Children” for the Purpose of Establishing Hardship Under 8 U.S.C. § 1229b(b)(2)(A)(v) Petitioner argues that the Im m igration Judge (“IJ”) and BIA should have found that her two sons were “children” when determ ining whether Petitioner had any qualifying relatives who would suffer extrem e hardship as the result of her
rem oval. Under 8 U.S.C. § 1229b(b)(2)(A)(v), the Attorney General m ay cancel the rem oval of an alien who is deportable from the United States if the alien dem onstrates, in relevant part, that “the rem oval would result in extrem e hardship to . . . the alien’s child.” The Act defines “child” as “an unm arried person under twenty-one years of age.” 8 U.S.C. § 1101(b)(1). Petitioner argues that her two sons were qualifying children because they were under twenty-one years old when she filed her special-rule cancellation application. The IJ and BIA determ ined that Petitioner’s sons were not children

2under the Act because they were over twenty-one years old when the IJ issued its

final decision. Petitioner’s argum ent was recently foreclosed by the Ninth Circuit’s decision in Mendez-Garcia v. Lynch , 840 F.3d 655, 665 (9th Cir. 2016). In that case, the court concluded that “the BIA could reasonably determ ine that § 1229b(b)(1)(D) requires an alien seeking cancellation to establish hardship to a qualifying relative as of the tim e the IJ adjudicates the alien’s application.” Id. at 664. Accordingly, the IJ and BIA correctly found that Petitioner’s sons were not qualifying relatives. II. Petitioner Did Not Administratively Exhaust Her Claim That She Would Suffer Extreme Hardship as the Result of Her Removal Petitioner claim s that her Fifth Am e ndm ent due process right was violated when the BIA failed to consider whether rem oval would cause her extrem e hardship. Respondent argues that Petitioner failed to adm inistratively exhaust a claim based on her own extrem e hardship because she did not raise the issue in her brief before the BIA. We “m a y review a final order only if . . . the alien has exhausted all adm inistrative rem edies available to the alien as of right.” 8 U.S.C. § 1252(d)(1). “We are without jurisdiction to hear argum ents that a petitioner has not exhausted by raising and arguing in his brief before the BIA.” He v. Holder , 749 F.3d 792, 795 (9th Cir. 2014).

3The BIA found that Petitioner had not alleged that she would suffer extrem e

hardship upon her rem oval. In her appeal to the BIA, Petitioner challenged the IJ’s determ ination that she was not credible. The parties dispute whether that challenge
encom passed the IJ’s finding that Petitioner had not established that she would suffer extrem e hardship. Upon review of the record in this case, we find that Petitioner did not raise the issue in her brief before the BIA. In sum , the BIA did not err in concluding that Petitioner failed to satisfy the extrem e hardship requirem ent necessary to sustain her special-rule cancellation application. The petition for review is DENIED.

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