1 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this opinion should not be published and is not precedent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.

1

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-60559

Summary Calendar

____________________

RODOLFO TURRUBIARTES HERNANDEZ,

Petitioner, 

v.

ALBERTO R. GONZALES, Attorney General of the United States, 

Respondent. 

__________________

ON PETITION FOR REVIEW FROM A FINAL ORDER OF

THE BOARD OF IMMIGRATION APPEALS

__________________

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:1

Petitioner Hernandez challenges the order of the Board of

Immigration Appeals affirming the immigration judge’s order of

removability. In lieu of a Response, Respondent moves for
2 We therefore deny Respondent’s motions for summary

affirmance and for an extension of time to file a response as

moot.

2

summary affirmance of the BIA’s order. Instead, we dismiss

Hernandez’ appeal for lack of jurisdiction.2

Hernandez, a native and citizen of Mexico, became a lawful

permanent resident of the United States in 1990 under the amnesty

provisions of the Immigration Reform and Control Act of 1986. In

2004, Hernandez was charged with and pled guilty in federal court

to possession with intent to distribute over 700 kilograms of

marijuana. Soon thereafter, Hernandez received a Notice to

Appear charging him with being removable as an alien who, after

admission to the United States, committed an aggravated felony

under Section 237(a)(2)(A)(iii) of the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii).

At a hearing before an immigration judge, Hernandez conceded

removability, and the immigration judge concluded that Hernandez

was ineligible for cancellation under INA § 240A(a)(3), 8 USC §

1229b(a)(3). Hernandez appealed to the BIA, arguing that the

immigration judge had erred in denying him a waiver of removal

pursuant to INA §§ 212(c), 212(h), and § 245, 8 U.S.C. §§

1182(c), 1182(h), and 1255. However, Hernandez had never

requested such relief from the immigration judge.
3 It is irrelevant that Petitioners raised his claims for

relief before the BIA. See Matter of Jimenez-Santillano, 21

I. & N. Dec. 567, 570 n. 2, 1996 WL 426890 (BIA 1996) (stating

that BIA need not consider an issue raised for the first time

on appeal); Matter of Edwards, 20 I & N Dec. 191, 196 n. 4,

1990 WL 385757 (BIA 1990) (same).

3

“[A] court may review a final order of removal only if the

alien has exhausted all his administrative remedies.” 8 U.S.C. §

1252(d)(1); see also Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th

Cir.2001) (“Because it is statutorily mandated, an alien's

failure to exhaust his administrative remedies serves as a

jurisdictional bar to [a court's] consideration of the issue.”);

Cardoso v. Reno, 216 F.3d 512, 518 (5th Cir.2000) (“As a matter

of jurisdiction, courts may not review the administrative

decisions of the INS unless the appellant has first exhausted

'all administrative remedies.’”) Because Hernandez never

requested that the immigration judge waive removability under INA

§§ 212(c), 212(h), or 245, and instead raised his requests for

relief for the first time as allegations of error to the BIA,

Hernandez has failed to exhaust his administrative remedies.3

This court, therefore, is without jurisdiction to consider his

Petition.

The Petition for Review is DISMISSED.