Chicas v. Holder , 383 F. App'x 15 ( 2010 )

09-3300-ag
Chicas v. Holder
BIA
Nelson, IJ
A029 066 683
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17 th day of June, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _________________________________________
12
13 JUAN CARLOS CHICAS,
14 Petitioner,
15
16 v. 09-3300-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Bruno Joseph Bembi, Hempstead,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Leslie McKay, Assistant
28 Director; Kristofer R. McDonald,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED, that the petition for review
9 is DISMISSED in part and DENIED in part.
10 Juan Carlos Chicas, a native and citizen of El
11 Salvador, seeks review of a July 10, 2009, order of the BIA,
12 affirming the October 18, 2007, decision of Immigration
13 Judge (“IJ”) Barbara A. Nelson, which denied his application
14 for cancellation of removal, special rule cancellation under
15 the Nicaraguan Adjustment and Central American Relief Act
16 (“NACARA”), asylum, and withholding of removal. In re Juan
17 Carlos Chicas, No. A029 066 683 (B.I.A. July 10, 2009),
18 aff’g No. A029 066 683 (Immig. Ct. N.Y. City Oct. 18, 2007).
19 We assume the parties’ familiarity with the underlying facts
20 and procedural history in this case.
21 Under the circumstances of this case, we review the
22 decision of the IJ as supplemented by the BIA. See Yan Chen
23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
24 applicable standards of review are well-established. See
25 Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008);
2
1 Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d
2 Cir. 2007).
3 I. NACARA and Cancellation of Removal
4 As the Government argues, to the extent that Chicas’s
5 claims with respect to cancellation of removal and special
6 rule cancellation of removal under NACARA do not raise
7 constitutional claims or questions of law, but instead
8 request that we re-weigh the evidence, we lack jurisdiction
9 to review his arguments. See NACARA § 203(a)(1), Pub. L.
10 105-100, 111 Stat. 2160, 2197-98 (stating that NACARA is
11 also subject to the jurisdiction-stripping provisions of 8
12 U.S.C. 1252(a)(2)(B)); Barco-Sandoval v. Gonzales, 516 F.3d
13 35, 38-39 (2d Cir. 2008). Moreover, Chicas’s
14 unsubstantiated assertions that the agency ignored evidence
15 do not raise a reviewable claim because the record indicates
16 that the IJ considered the evidence, but found that a
17 favorable exercise of discretion was not warranted due to
18 the petitioner’s convictions for drinking and driving.
19 Accordingly, we dismiss the petition for review to this
20 extent. See Barco-Sandoval, 516 F.3d at 39-40.
21 Chicas also argues that the IJ “pretermitted” testimony
22 regarding the hardship his family would suffer upon his
3
1 removal. Because this claim arguably raises Chicas’s
2 constitutional right of due process, we maintain
3 jurisdiction to review it pursuant to 8 U.S.C.
4 § 1252(a)(2)(D). See Ilyas Khan v. Gonzales, 495 F.3d 31,
5 35 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of Justice,
6 471 F.3d 315, 324 (2d Cir. 2006). Nonetheless, we find this
7 claim to be without merit because Chicas’s counsel did not
8 object to the IJ’s direction to address Chicas’s arrests,
9 and counsel was allowed to, and did, present the testimony
10 of Chicas’s wife and son concerning the hardship on his
11 family. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d
12 99, 104-05 (2d Cir. 2006).
13 As the Government correctly points out, Chicas raises a
14 host of arguments in his brief that he failed to exhaust
15 before the agency. We decline to entertain these arguments
16 in the first instance. See Lin Zhong v. U.S. Dep’t of
17 Justice, 480 F.3d 104, 122 (2d Cir. 2007).
18 II. Asylum and Withholding of Removal
19 Chicas argues that agency erred in denying his
20 application for asylum because he demonstrated that he
21 suffered past persecution on account of his membership in
22 the social group of orphans and his imputed political
4
1 opinion. Although Chicas claimed that he was traumatized by
2 the consequences of the civil war in El Salvador, general
3 violence that is not on account of a protected ground is
4 insufficient to establish eligibility for asylum. See
5 8 U.S.C. § 1101(a)(42); Melgar de Torres v. Reno, 191 F.3d
6 307, 314 n.3 (2d Cir. 1999). The agency reasonably found in
7 this case that Chicas failed to show that his experiences in
8 El Salvador constituted past persecution on account of a
9 protected ground. See Melgar de Torres, 191 F.3d at 314
10 n.3.; cf. Jorge-Tzoc v. Gonzales, 435 F.3d 146, 149-150 (2d
11 Cir. 2006) (IJ erred in failing to consider evidence that
12 violence in El Salvador was aimed at petitioner’s particular
13 social group of Mayans).
14 Because the agency reasonably determined that Chicas
15 did not establish past persecution, he was not entitled to a
16 presumption of future persecution. See 8 C.F.R.
17 §§ 208.13(b)(1), 1208.16(b)(1). Insofar as Chicas does not
18 argue that he established a well-founded fear of
19 persecution, we find no basis to disturb the agency’s
20 finding that he did not do so. Finally, because the agency
21 reasonably found that Chicas did not establish his claim of
22 past persecution, it did not err in declining to address the
23 possibility of “humanitarian asylum” pursuant to 8 C.F.R.
5
1 § 1208.13(b)(1)(iii)(B). See Kone v. Holder, 596 F.3d 141,
2 152 (2d Cir. 2010) (recognizing that the regulations provide
3 for humanitarian asylum for an alien who, inter alia, has
4 suffered past persecution). Accordingly, the agency did not
5 err in denying his applications for asylum and withholding
6 of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
7 Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DISMISSED in part and DENIED in part. As we have completed
10 our review, any stay of removal that the Court previously
11 granted in this petition is VACATED, and any pending motion
12 for a stay of removal in this petition is DISMISSED as moot.
13 Any pending request for oral argument in this petition is
14 DENIED in accordance with Federal Rule of Appellate
15 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
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