Marco Romero v. Loretta E. Lynch , 644 F. App'x 723 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 4 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO ANTONIO ROMERO; MARLEN No. 13-74222
JANET ROMERO,
Agency Nos. A070-021-630
Petitioners, A096-342-891
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
Marco Antonio Romero, a native and citizen of El Salvador, and Marlen
Janet Romero, a native and citizen of Honduras, petition for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration
judge’s decision denying Marco Romero’s application for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal, protection under the Convention Against Torture (“CAT”), cancellation
of removal, and special rule cancellation under the Nicaraguan Adjustment and
Central American Relief Act (“NACARA”), and denying Marlen Romero’s claims
for derivative cancellation of removal and derivative special rule cancellation.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s findings of fact, Nagoulko v. INS, 333 F.3d 1012, 1015 (9th
Cir. 2003). We deny the petition for review in part and dismiss in part.
Substantial evidence supports the agency’s finding that Marco Romero
failed to establish past persecution when he was forced to hang up posters for the
guerillas. See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (persecution is an
“extreme concept” that includes the “infliction of suffering or harm”). Substantial
evidence supports the agency’s determination that Marco Romero failed to
establish a well-founded fear of future persecution on account of his political
opinion or particular social group related to a general threat of gang violence. See
Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir. 1984) (no prima facie eligibility for
asylum because “tragic and widespread danger of violence affecting all
Salvadorians is not persecution”); see also Zetino v. Holder, 622 F.3d 1007, 1016
(9th Cir. 2010) (petitioner’s desire to be free from random violence by gang
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members bears no nexus to a protected ground). Thus, we deny petitioners’
asylum claim.
Because petitioners failed to establish eligibility for asylum, their
withholding of removal claim necessarily fails. See Zehatye v. Gonzales, 453 F.3d
1182, 1190 (9th Cir. 2006).
Substantial evidence further supports the agency’s CAT denial because
Marco Romero failed to establish that it is more likely than not that he would be
tortured by or with the acquiescence of the government if returned to El Salvador.
See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
Finally, we lack jurisdiction to consider petitioners’ contentions as to the
agency’s discretionary determinations pertaining to their cancellation of removal
and NACARA special rule cancellation claims. See 8 U.S.C. § 1252(a)(2)(B)(i);
see also Vilchez v. Holder, 682 F.3d 1195, 1201 (9th Cir. 2012) (court lacks
jurisdiction to review discretionary decision of cancellation of removal); Lanuza v.
Holder, 597 F.3d 970, 972 (9th Cir. 2010) (the IIRIRA “expressly precludes”
review of eligibility decisions under NACARA). We also lack jurisdiction over
petitioners’ argument that they were not given the opportunity to explain answers
at their immigration hearing because they did not present that contention to the
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BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner
must exhaust procedural due process claim in administrative proceedings below).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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