Lian Bing Tan, a.k.a. Judy Yee v. ERIC H. HOLDER JR., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIAN BING TAN, a.k.a. Judy Yee,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney General,
Respondent.
No. 08-71473
Agency No. A044-196-590
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2011
Pasadena, California
Before: GOODWIN, KLEINFELD, and GRABER, Circuit Judges.
Lian Bing Tan, a native citizen of the People’s Republic of China and lawful
permanent resident since 1994, petitions for review of the Board of Immigration
Appeals’ (BIA) dismissal of her appeal of an immigration judge’s (IJ) order
denying her request for a waiver under 8 U.S.C. § 1227(a)(7) and for cancellation
FILED
FEB 28 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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of removal. The BIA found that Tan’s conviction for child endangerment under
California Penal Code section 273a(a) was an aggravated felony, as a “crime of
violence” under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b), precluding her
from cancellation of removal.
We need not reach the issue of the BIA’s application of the modified
categorical approach to Tan’s conviction under California Penal Code
section 273a(a), because the BIA also denied her application for cancellation of
removal on the ground that, regardless, she would not receive a favorable exercise
of discretion. See, e.g., Martinez-Rosas v. Gonzales, 424 F.3d 926, 929–30 (9th
Cir. 2005) (citing 8 U.S.C. 1229b). By statute, we lack jurisdiction over the BIA’s
unfavorable discretionary decision, so Tan cannot obtain relief. 8 U.S.C. §
1252(a)(2)(B)(i).
Petitioner’s arguments with respect to the discretionary decision are factual
in nature, although clothed as a legal argument. See Martinez-Rosas, 424 F.3d at
930. Even if we addressed her arguments on the merits, they would fail. The BIA
did balance all relevant positive and negative factors as required under our case
law. Kalubi v. Ashcroft, 364 F.3d 1134, 1139 (9th Cir. 2004). Additionally, we

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lack jurisdiction to consider Tan’s argument about the use of her statements from
her bond hearing because she failed to raise it in her brief to the BIA. Abebe v.
Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam), cert. denied,
130 S. Ct. 3272 (2010).
The petition for review is therefore DENIED.

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