UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1404

MARIO RIVERA, a/k/a Mario Antonio Rivers,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Submitted: September 18, 2012 Decided: September 28, 2012

Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Steffanie J. Lewis, THE INTERNATIONAL BUSINESS LAW FIRM, PC, 

Washington, D.C. for Petitioner. Stuart F. Delery, Acting

Assistant Attorney General, Ada E. Bosque, Senior Litigation 

Counsel, Lindsay Corliss, 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Unpublished opinions are not binding precedent in this circuit.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:

Mario Rivera, 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). Rivera challenges the findings that his 

conviction for sexual battery was a crime involving moral 

turpitude, that he was not a person of good moral character and 

that his removal would not be an exceptional and extremely 

unusual hardship to him and his family. We deny the petition 

for review.

We have noted that Congress did not define a crime 

involving moral turpitude. See Yousefi v. INS, 260 F.3d 318, 

325-26 (4th Cir. 2001). We accord substantial deference to the 

Board’s determination of what type of conduct involves moral 

turpitude. Id. at 326. The interpretation must not be an 

unreasonable one. Id. The Board looks to the elements of the 

offense rather than the facts surrounding the crime. Id.

The Board has defined a crime involving moral 

turpitude as being “‘inherently base, vile, or depraved, and 

contrary to accepted rules of morality and the duties owed 

between persons or to society in general.’” Prudencio v. 
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Holder, 669 F.3d 472, 484-85 (4th Cir. 2012) (quoting Matter of 

Olquin-Rufino, 23 I. & N. Dec. 896, 896 (BIA 2006)).

Generally, the categorical approach involves giving 

consideration “only to the essential elements of the offense and 

the fact of conviction.” United States v. Baxter, 642 F.3d 475, 

476 (4th Cir. 2011). In order to find that a conviction was a 

crime involving moral turpitude under the categorical approach 

that was utilized in this case, the Board and the immigration 

judge must determine whether the crime at issue categorically 

involves moral turpitude by examining “whether there is a 

‘realistic probability, not a theoretical possibility,’” that 

the criminal statute “would be applied to reach conduct that 

does not involve moral turpitude.” Matter of Silva-Trevino, 24 

I. & N. Dec. 687, 690 (BIA 2009). “This realistic probability 

can be established by showing that, in at least one other case, 

the state courts in fact did apply the statute in the special 

(nongeneric) manner[.]” Nunez v. Holder, 594 F.3d 1124, 1129 

(9th Cir. 2010) (internal quotation marks omitted). It is 

Rivera’s burden to establish that he is qualified for NACARA 

relief. See 8 C.F.R. § 1240.66(c) (2012). Thus, he must show 

that the conviction can be applied in a way that would not be 

considered a crime involving moral turpitude. 

We conclude that the Board did not err in finding that 

Rivera’s conviction for Va. Code Ann. § 18.2-67.4 (2009), Sexual 
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Battery, is categorically a crime involving moral turpitude. 

Rivera failed to show that the statute could be applied in a way 

that would not involve moral turpitude. 

Because Rivera was inadmissible due to a prior 

conviction for a crime involving moral turpitude, in order to 

establish eligibility for relief under the NACARA, he needed to 

show that he was of good moral character during the ten year 

period of continuous presence following the commission of the 

offense and that his removal would be an exceptional and 

extremely unusual hardship to him and his family. See 8 C.F.R. 

§ 1240.66(c).

In Barahona v. Holder, __ F.3d __, 2012 WL 3264386, *3 

(4th Cir. 2012), we noted that the court does not have 

jurisdiction to review factual findings or discretionary denials 

of relief under the NACARA, except to review constitutional 

claims and questions of law. Thus, the findings that Rivera was 

not of good moral character or that his removal would not be an 

exceptional and extremely unusual hardship, to the extent based 

on factual findings and discretion, are not reviewable. 

Rivera attempts to fashion his arguments against the 

discretionary findings as reviewable questions of law. However, 

we conclude that he has failed to raise such reviewable 

questions. Thus, we are without jurisdiction to review the 

discretionary finding that Rivera was not a person of good moral 
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character or that his removal would not be an exceptional and 

extremely unusual hardship.

Accordingly, we deny 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.

PETITION DENIED