Simeon De Jesus Esquivel v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A072-510-936. Copies to all parties and the district court/agency. [998840935].. [11-1873]

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Date Filed: 04/26/2012

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UNPUBLISHED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Petition dismissed in part, and denied in part by unpublished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Unpublished opinions are not binding precedent in this circuit.

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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

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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,

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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

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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
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

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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