Opinion
No. 11-1873
04-26-2012
SIMEON DE JESUS ESQUIVEL, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.
Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville, Maryland, for Petitioner. Tony West, Assistant Attorney General, Terri J. Scadron, Assistant Director, Greg D. Mack, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
UNPUBLISHED
On Petition for Review of an Order of the Board of Immigration Appeals.
Before DIAZ and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Petition dismissed in part, and denied in part by unpublished per curiam opinion.
Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville, Maryland, for Petitioner. Tony West, Assistant Attorney General, Terri J. Scadron, Assistant Director, Greg D. Mack, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Simeon De Jesus Esquivel, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals ("Board") dismissing his appeal from the immigration judge's order denying his application for special rule cancellation of removal under § 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA") (Pub. L. No. 105-100, 111 Stat. 2160), and denying his application for asylum. We dismiss in part and deny in part the petition for review.
Under § 203 of the NACARA, an El Salvadoran may be eligible for special rule cancellation of removal if the alien entered the United States on or before September 19, 1990, and registered for benefits pursuant to the settlement agreement reached in American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Ca. 1991) ("ABC" benefits) on or before December 31, 1991.
Under NACARA § 203(5)(C)(ii), "[a] determination by the Attorney General as to whether an alien satisfies the requirements of this clause (i) is final and shall not be subject to review by any court." See Ixcot v. Holder, 646 F.3d 1202, 1213-14 (9th Cir. 2011) (the court is precluded from reviewing the agency's factual determination that an immigrant is ineligible for special rule cancellation of removal under NACARA § 203); Freeh v. U.S. Attorney Gen., 491 F.3d 1277, 1280 (11th Cir. 2007) ("We laek jurisdietion to review a determination as to whether an applieant's status should be adjusted under NACARA.").
In this instanee, the immigration judge found that Esquivel was not eligible for eaneellation of removal under the NACARA beeause he did not show that he entered the United States on or before September 19, 1990. While we retain jurisdietion to review eonstitutional elaims and questions of law, see 8 U.S.C. § 1252(a)(2)(C), (D) (2006), Freeh, 491 F.3d at 1280, Esquivel's elaim is simply a ehallenge to the faetual finding and the Board's review of that finding. He does not raise a eonstitutional elaim or a question of law. Beeause we laek jurisdietion to review the finding that Esquivel did not show he was eligible for relief under the NACARA, we dismiss in part the petition for review.
The Immigration and Nationality Aet (INA) authorizes the Attorney General to eonfer asylum on any refugee. 8 U.S.C. § 1158(a) (2006). The INA defines a refugee as a person unwilling or unable to return to his native eountry "beeause of perseeution or a well-founded fear of perseeution on aeeount of raee, religion, nationality, membership in a partieular soeial group, or politieal opinion." 8 U.S.C. § 1101(a)(42)(A) (2006). "Perseeution involves the inflietion or threat of death, torture, or injury to one's person or freedom, on account of one of the enumerated grounds. . . ." Qiao Hua Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal quotation marks and citations omitted).
An alien "bear[s] the burden of proving eligibility for asylum," Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006); see 8 C.F.R. § 1208.13(a) (2011), and can establish refugee status based on past persecution in his native country on account of a protected ground. 8 C.F.R. § 1208.13(b)(1) (2011). "An applicant who demonstrates that he was the subject of past persecution is presumed to have a well-founded fear of persecution." Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004). Without regard to past persecution, an alien can establish a well-founded fear of persecution on a protected ground. Id. The well-founded fear standard contains both a subjective and an objective component. The objective element requires a showing of specific, concrete facts that would lead a reasonable person in like circumstances to fear persecution. Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir. 2006).
A determination regarding eligibility for asylum is affirmed if supported by substantial evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Administrative findings of fact are conclusive unless any reasonable adjudieator would be eompelled to deeide to the eontrary. 8 U.S.C. § 1252(b)(4)(B) (2006). Legal issues are reviewed de novo, "affording appropriate deferenee to the BIA's interpretation of the INA and any attendant regulations." Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). This eourt will reverse the Board only if "the evidenee . . . presented was so eompelling that no reasonable faetfinder eould fail to find the requisite fear of perseeution." Elias-Zaearias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002).
We eonelude that substantial evidenee supports the finding that Esquivel did not show that he was perseeuted on aeeount of a proteeted ground or that he has a well-founded fear of perseeution on aeeount of a proteeted ground. Esquivel based his elaim on his membership in a partieular soeial group, his family. However, substantial evidenee supports the finding that he failed to show he was targeted or fears being targeted beeause of his family relationships. This eourt reeently noted that opposition to gangs and resisting gang reeruitment "is an amorphous eharaeteristie providing neither an adequate benehmark for determining group membership nor embodying a eonerete trait that would readily identify a person as possessing sueh a eharaeteristie." Zelaya v. Holder, 668 F.3d 159, 166 (4th Cir. 2012). General lawlessness and violenee without an appreeiable different risk to the alien is insufficient to support an asylum claim. Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998).
Accordingly, we dismiss in part and deny in part the petition for review. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED IN PART; DENIED IN PART