Juan Almaraz RODRIGUEZ, [ AXX-XXX-XXX ], Petitioner-Appellant, Erick Rodriguez, a minor, by and through his Guardian Ad Litem, Otoniel Solis, Intervenor-Appellant, v. Michael CHERTOFF, Secretary, Department of Homeland Security; et al., Respondents-Appellees, 138 F. App'x 916

MEMORANDUM Juan Almaraz-Rodriguez (“Rodriguez”), a native and citizen of Mexico, appeals the district court’s denial of his 28 U.S.C. § 2241 habeas corpus petition challenging the Board of Immigration Appeals’s (“BIA’s”)

summary affirmance of the Immigration Judge’s (“IJ’s”) denial of cancellation of removal under 8 U.S.C. § 1229b(b). Under the Real ID Act of 2005, Pub.L. 109-13, habeas relief is barred, so we treat Rodriguez’s appeal as a petition for review, see 8 U.S.C. § 1252(a)(5), reviewing the constitutional claims or questions of law raised within it. See 8 U.S.C. § 1252(a)(2)(D). The IJ did not violate due process in determining Rodriguez failed to prove three independent requirements for cancellation of removal.

First, the IJ used the correct preponderance of the evidence standard for determining continuing physical presence, and did not misapply the law. Second, Rodriguez is per se excluded from establishing good moral character because of the alien-smuggling provision, 8 U.S.C. § 1182(a)(6)(E)(i), and does not qualify for an exception under 8 U.S.C. § 1182(a)(6)(E)(ii) because he did not smuggle his spouse before May 5, 1988. Third, Rodriguez has provided no support that the IJ violated due process in making the adverse extreme hardship determination; rather, he disagrees with the IJ’s purely discretionary decision.

See 8 U.S.C. § 1252(a)(2)(B)(i) (2000); Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003). Moreover, Rodriguez failed to brief, and thus waived on appeal, any potential constitutional or statutory challenge to the extreme hardship determination based on the denial of a continuance. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999). Erick Rodriguez, Rodriguez’s United States citizen son, filed a motion in the district court to intervene in his father’s case under Rules 24(

a) and 24(

b) of the Federal Rules of Civil Procedure. The district court properly denied intervention as of right and did not abuse its discretion in denying permissive intervention. PETITION DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.