                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 18 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FRANCISCO JAVIER GASCA-                          No. 07-70507
RAMIREZ,
                                                 Agency No. A075-310-429
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted January 13, 2011 **
                              San Francisco, California

Before: WALLACE, SILVERMAN, and TALLMAN, Circuit Judges.

       The Board of Immigration Appeals’ (Board) “‘exceptional and extremely

unusual hardship’ determination is a subjective, discretionary judgment that has

been carved out of our appellate jurisdiction.” Romero-Torres v. Ashcroft, 327


        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
F.3d 887, 888 (9th Cir. 2003). However, the REAL ID Act restored our appellate

jurisdiction to “constitutional claims or questions of law.” Figueroa v. Mukasey,

543 F.3d 487, 494 (9th Cir. 2008).

      “Questions of law” include whether the Board did not follow its own

precedent and whether it misconstrued the cancellation of removal statute. Id. at

496 (“Because Petitioners argue that the [immigration judge (IJ)] failed to follow

[Board] precedent and misconstrued the statute when determining whether

Petitioners had demonstrated ‘exceptional and extremely unusual hardship’ under

8 U.S.C. § 1229b(b)(1)(D), we hold that we have jurisdiction to review their

challenge”). We review the Board’s determination of purely legal and

constitutional issues de novo. Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107

(9th Cir. 2003). We have jurisdiction to determine our own jurisdiction. Rosado v.

Wyman, 397 U.S. 397, 403 n.3 (1970).

                                           I.

      The government does not contest Gasca’s argument that he has exhausted

his administrative remedy, and thus concedes that he has. See Martinez-Serrano v.

INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

      Gasca argues that “[t]he Board failed to address a core element of Mr.

Gasca’s case, specifically, the severity of his daughter [C]’s medical condition.”


                                           2
Because the Board did in fact extensively address the severity of Gasca’s

daughter’s medical condition and weighed it in determining whether there was

exceptional and extremely unusual hardship, Gasca’s argument does not raise a

question of law but instead raises an issue of discretion over which we lack

jurisdiction. Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

Furthermore, to the extent Gasca’s argument presents a legal question over which

we have jurisdiction, Gasca has not demonstrated how the Board“failed to follow

[its] precedent” in its weighing of the importance of C’s medical condition.

Figueroa, 543 F.3d at 496.

      Gasca advances only a thin argument that the Board “used the wrong

standard of proof for exceptional and extremely unusual hardship by requiring that

Mr. Gasca demonstrate the complete unavailability of medical treatment or

medication in Mexico for [C’s] condition.” But the Board correctly engaged in a

“future-oriented analysis, not an analysis of [C’s] present conditions.” Id. at 497.

By requiring “objective evidence that medical care to treat [C’s] condition is not

reasonably available in Mexico” (and not, as Gasca argues, requiring evidence of

the complete unavailability of medical treatment in Mexico), the Board was simply

following its and our precedent. Id. at 498 (“Congress intended that discretion in




                                          3
cancellation of removal cases be exercised on the basis of whether removal would

result in an exceptional and extremely unusual hardship to the citizen-children”).

      Finally, Gasca incorrectly argues that the Board did not analyze “how or

why” In re Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002), applied to Gasca’s

case. The Board specifically applied Andazola-Rivas to this case and explained its

reasoning.

                                         II.

      Because the Board committed no legal error and Gasca “does not contend

that [he] was prevented from presenting [his] case before the IJ, denied a full and

fair hearing before an impartial adjudicator, or otherwise denied a basic due

process right,” we reject his due process argument. See Martinez-Rosas, 424 F.3d

at 930.

      PETITION DENIED.




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