IMG-163                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 10-4530
                                    ___________

                                MAME F. SOW,
                        a/k/a Mame Faba Sow Ep Ndiaye;
                      CHEIKH MOHAMED FADEL NDIAYE,
                                  Petitioners

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES
                   ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                    (Agency Nos. A93-432-510 & A89-204-145)
                   Immigration Judge: Honorable Eugene Pugliese
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 6, 2011

             Before: SCIRICA, FISHER and ALDISERT, Circuit Judges.

                                (Filed: July 11, 2011)
                                    ___________

                                     OPINION
                                    ___________

PER CURIAM

      Mame F. Sow and her husband, Cheikh Mohamed Fadel Ndiaye, petition for

review of an order of the Board of Immigration Appeals (“BIA”) which dismissed their
appeal of an Immigration Judge’s (“IJ”) denial of their application for cancellation of

removal. For the reasons that follow, we will dismiss the petition for review.

       The petitioners are citizens of Senegal who entered the United States in 1992 as

nonimmigrant visitors with authorization to remain for six months. They overstayed their

admission period and, in 2008, were charged with removability under Immigration and

Nationality Act § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B)]. The petitioners conceded

their removability and applied for cancellation of removal under INA § 240A(b)(1) [8

U.S.C. § 1229b(b)(1)], claiming that returning to Senegal would cause their four United

States citizen children to suffer exceptional and extremely unusual hardship.1

Specifically, the petitioners alleged that their children would not have access to adequate

medical treatment for their asthma, that their two sons’ seafood allergies would prevent

them from eating the fish that is the basis of the diet in Senegal, and that their two

daughters would be forced by Sow’s family to undergo female genital mutilation

(“FGM”).

       The IJ denied relief, concluding that the petitioners failed to demonstrate that

removal would result in exceptional and extremely unusual hardship to their children.

The IJ concluded that the medical evidence of the children’s asthma and allergies was


       1
         The petitioners also sought asylum, withholding of removal, and protection
under the United Nations Convention Against Torture. The IJ denied those forms of
relief. Because the petitioners have not challenged those determinations, we will not
consider them. Bradley v. Att’y Gen., 

, 243 n.8 (3d Cir. 2010) (holding that
argument not raised in opening brief is waived).


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“meager,” noting that “there is nothing . . . to establish that the children have any type of

severe, life threatening condition.” The IJ also found no significant likelihood that the

petitioners’ daughters would be subjected to FGM in Senegal. In support of this

conclusion, the IJ noted that petitioners were opposed to FGM and that Sow’s relatives

had been unable to perform the practice on her. The IJ also relied on a 2001 State

Department report, which cited a study indicating that approximately 20 percent of the

female population in Senegal had undergone some type of FGM. The IJ further noted

that while the 2007 State Department Report on Human Rights Practices stated that FGM

is still practiced in certain parts of Senegal, the Report also indicated that the government

prosecuted those engaging in the practice and collaborated with various groups to educate

people about its dangers. Overall, according to the IJ, it appeared “that the cultural

acceptance in Senegal of female genital mutilation is decreasing and the practice is being

prosecuted and outlawed by the government.”

       The petitioners appealed to the BIA, asserting only that the IJ “failed to take into

account” certain evidence concerning the possibility that their daughters would be subject

to FGM. For instance, the petitioners pointed to material allegedly indicating that the

percentage of females in Senegal forced to undergo FGM is “much higher” than 20

percent, that FGM is “still widely practiced with impunity,” and that there had been no

convictions under the law prohibiting FGM. The BIA dismissed the appeal, concluding

that the IJ properly considered and weighed the record evidence. The Board held that it

was “unable to conclude, even considering all of the factors presented cumulatively in the

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record and in the [petitioners’] appellate brief, that removal would result in exceptional

and extremely unusual hardship as interpreted by” precedential BIA decisions. The

petitioners filed a timely petition for review.

       Although we have authority to review final orders of removal under INA

§ 242(a)(1) [8 U.S.C. § 1252(a)(1)], we lack jurisdiction under INA § 242(a)(2)(B)(i) [8

U.S.C. § 1252(a)(2)(B)(i)] to review factual or discretionary determinations such as

whether a petitioner has satisfied the hardship requirement for cancellation of removal.

Patel v. Att’y Gen., 

, 232 (3d Cir. 2010). In addition, our jurisdiction is

limited under § 242(d)(1) of the INA to cases where the petitioner “has exhausted all

administrative remedies available to the alien as of right . . . .” INA § 242(d)(1) [8

U.S.C. 1252(d)(1)]; Abdulrahman v. Ashcroft, 

, 594–95 (3d Cir. 2003).

Although the exhaustion principle is not applied “in a draconian fashion,” “[o]ut of

respect for the administrative process, we will not require the BIA to guess which issues

have been presented and which have not.” Lin v. Att’y Gen., 

, 121-22 (3d

Cir. 2008). But, “so long as an immigration petitioner makes some effort, however

insufficient, to place the Board on notice of a straightforward issue being raised on

appeal, a petitioner is deemed to have exhausted her administrative remedies.” Joseph v.

Att’y Gen., 

, 126 (3d Cir. 2006) (quotation marks and citations omitted).

Exhaustion may occur where the BIA sua sponte considers an issue, see 

, or where it is put “on notice that there was a claim of error hovering around the

[IJ’s] findings . . . .” Yan Lan Wu v. Ashcroft, 

, 422 (3d Cir. 2005).

                                                  4
       In an effort to avoid the jurisdictional bar to review of discretionary aspects of the

Board’s denial of cancellation of removal, the petitioners argue that the “IJ used the

wrong legal standard in his determination” that they failed to establish an exceptional and

extremely unusual hardship. In particular, the petitioners argue that the IJ erred by

requiring that they demonstrate that their children suffer from a “sever[e] life threatening

condition.” Importantly, however, the petitioners did not raise any challenge to the

standards used by the IJ in either their notice of appeal or in their counseled brief to the

BIA. Likewise, while the petitioners now fault the BIA for “focusing on only the two

daughters and failing to consider the medical condition of the two boys,” they did not

raise before the Board any claim related to their sons’ health issues. Instead, the record

indicates that the petitioners argued to the BIA only that the IJ had “failed to take into

account” certain evidence concerning the alleged hardship based on FGM. The BIA did

not sua sponte consider the issues that the petitioners are now attempting to raise. Under

these circumstances, we conclude that the petitioners have failed to exhaust their

administrative remedies.

       For the foregoing reasons, we will dismiss the petition for review.




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