Simeon De Jesus Esquivel v. Eric Holder, Jr., No. 11-1873 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1873 SIMEON DE JESUS ESQUIVEL, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.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 Before DIAZ and Circuit Judge. FLOYD, Decided: Circuit Judges, and April 26, 2012 HAMILTON, Senior Petition dismissed in part, and denied in part by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Immigration Appeals for review ( Board ) of an order dismissing of his the appeal Board of 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 the Attorney requirements NACARA General of this § 203(5)(C)(ii), as to clause whether an (i) final subject to review by any court. 1202, 1213-14 (9th Cir. [a] 2011) is determination alien and satisfies shall by the not be See Ixcot v. Holder, 646 F.3d (the court is precluded from reviewing the agency s factual determination that an immigrant is ineligible for special rule cancellation of removal under 2 NACARA § 203); Frech v. U.S. Attorney Gen., 491 F.3d 1277, 1280 (11th Cir. determination 2007) ( We as whether to lack jurisdiction to an applicant s immigration judge a should status the review be adjusted under NACARA. ). In this instance, 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. to review constitutional claims While we retain jurisdiction 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. § 1158(a) (2006). The INA defines a refugee as 8 U.S.C. 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. Persecution involves the 8 U.S.C. § 1101(a)(42)(A) (2006). infliction 3 or threat of death, torture, or injury to one s person or freedom, on account of one of the enumerated grounds. . . . F.3d 171, 177 (4th Cir. 2005) Qiao Hua Li v. Gonzales, 405 (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. (2011). 8 C.F.R. § 1208.13(b)(1) An applicant who demonstrates that he was the subject of past persecution is presumed to have a well-founded fear of persecution. 2004). Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. Without establish a to well-founded Id. ground. regard past fear of persecution, persecution an on alien a can protected 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 Gandziami-Mickhou in v. like circumstances Gonzales, 445 F.3d to fear 351, persecution. 353 (4th Cir. for asylum 2006). A affirmed if determination supported considered as a whole. (1992). by regarding eligibility substantial evidence on the is record INS v. Elias-Zacarias, 502 U.S. 478, 481 Administrative findings of fact are conclusive unless 4 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 Li interpretation of the INA and any attendant regulations. 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. he However, substantial evidence supports the finding that failed to show he was targeted because of his family relationships. or fears being targeted 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 characteristic. 2012). identify a person as possessing such a Zelaya v. Holder, 668 F.3d 159, 166 (4th Cir. 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. facts and materials legal before We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. DISMISSED IN PART; DENIED IN PART 6

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