Miguel Miranda HERNANDEZ, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 138 F. App'x 984

MEMORANDUM Miguel Miranda Hernandez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s (“IJ”) order denying his application for cancellation of removal. We dismiss the petition for review. We lack jurisdiction to review the agency’s denial of Hernandez’s cancellation of removal application because relief was denied in part due to Hernandez’s failure to establish the necessary exceptional and extremely unusual hardship. See 8 U.S.C. § 1252(a)(2)(B); Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003).

Because his failure to demonstrate the requisite hardship is dispositive, we do not reach whether Hernandez established ten years of continuous physical presence. See 8 U.S.C. § 1229b(b)(1); Romero-Torres, 327 F.3d at 889. Furthermore, we lack jurisdiction to consider Hernandez’s contention that the IJ violated his due process rights by not allowing Dr. Fries to testify because he failed to exhaust this argument before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (explaining that exhaustion is mandatory and jurisdictional when due process challenge is procedural in nature).

The voluntary departure period was stayed, and that stay will expire upon issuance of the mandate. See Desta v. Ashcroft, 365 F.3d 741, 750 (9th Cir.2004). PETITION FOR REVIEW DISMISSED. 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.