Filed: Apr. 26, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1873 SIMEON DE JESUS ESQUIVEL, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: April 3, 2012 Decided: April 26, 2012 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 Petition dismissed in part, and denied in part by unpublished per curiam opinion.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, Ro
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1873 SIMEON DE JESUS ESQUIVEL, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: April 3, 2012 Decided: April 26, 2012 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 Petition dismissed in part, and denied in part by unpublished per curiam opinion.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, Roc..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1873
SIMEON DE JESUS ESQUIVEL,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 3, 2012 Decided: April 26, 2012
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Petition dismissed in part, and denied in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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
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NACARA § 203); Frech v. U.S. Attorney Gen., 491 F.3d 1277, 1280
(11th Cir. 2007) (“We lack jurisdiction to review a
determination as to whether an applicant’s status should be
adjusted under NACARA.”).
In this instance, the immigration judge found that
Esquivel was not eligible for cancellation of removal under the
NACARA because he did not show that he entered the United States
on or before September 19, 1990. While we retain jurisdiction
to review constitutional claims and questions of law, see 8
U.S.C. § 1252(a)(2)(C), (D) (2006), Frech, 491 F.3d at 1280,
Esquivel’s claim is simply a challenge to the factual finding
and the Board’s review of that finding. He does not raise a
constitutional claim or a question of law. Because we lack
jurisdiction 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 Act (INA) authorizes
the Attorney General to confer 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 country “because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2006).
“Persecution involves the infliction or threat of death,
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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
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any reasonable adjudicator would be compelled to decide to the
contrary. 8 U.S.C. § 1252(b)(4)(B) (2006). Legal issues are
reviewed de novo, “affording appropriate deference 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
court will reverse the Board only if “the evidence . . .
presented was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution.” Elias-
Zacarias, 502 U.S. at 483-84; see Rusu v. INS,
296 F.3d 316, 325
n.14 (4th Cir. 2002).
We conclude that substantial evidence supports the
finding that Esquivel did not show that he was persecuted on
account of a protected ground or that he has a well-founded fear
of persecution on account of a protected ground. Esquivel based
his claim on his membership in a particular social group, his
family. However, substantial evidence supports the finding that
he failed to show he was targeted or fears being targeted
because of his family relationships. This court recently noted
that opposition to gangs and resisting gang recruitment “is an
amorphous characteristic providing neither an adequate benchmark
for determining group membership nor embodying a concrete trait
that would readily identify a person as possessing such a
characteristic.” Zelaya v. Holder, 668 F.3d 159, 166 (4th Cir.
2012). General lawlessness and violence without an appreciable
5
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
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