UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

SONIA NOEMI CAMPOS-PEREZ, Petitioner,

v. ERIC H. HOLDER, JR., Respondent. No. 12-9515 (Petition for Review)

ORDER AND JUDGMENT *

Before HOLMES , Circuit Judge, BRORBY , Senior Circuit Judge, and EBEL , Circuit Judge.
Sonia Noemi Campos-Perez petitions pro se for review of the Board of Immigration Appeals’ (BIA’s) decision to deny her applications for asylum and restriction on removal. We lack jurisdiction to consider the determinations that Ms. Campos-Perez’s asylum a pplication was untimely and that she did not satisfy an exception to the one-year filing deadline. Ferry v. Gonzales , 457 F.3d 1117, 1129-30

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 6, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - (10th Cir. 2006). We theref ore dismiss that portion of th e petition. We do, however, have jurisdiction to consider Ms. Cam pos-Perez’s restriction-on-removal claim, see 8 U.S.C. § 1252(a), and deny th e remainder of the petition. I. Background Ms. Campos-Perez is a native and citizen of El Salvador. In 2006, she entered the United States without inspection. Shortly thereafter, the Department of Homeland Security instituted removal pro ceedings, charging her with being present in the United States without having b een admitted or paroled. In 2008 Ms. Campos-Perez, through c ounsel, conceded removab ility as charged and filed applications for asylum , withholding of removal, and protection under the Convention Against Torture (CAT), citing he r membership in a particular social
group. 1 At a merits hearing before an Immi gration Judge (IJ), Ms. Campos-Perez testified about her uncles’ mil itary service, explaining that they were part of a special unit focused on enforcing the law against criminal gangs. She explained that, beginning in March 2005, she was confront ed on multiple occasions by two or three

1 The Immigration Judge did not enga ge in any legal analysis regarding Ms. Campos-Perez’s request fo r CAT relief, and this issu e was not raised on appeal to the BIA. Further, other than passing mention of the CAT, it does not appear that any CAT issues are being ra ised in this court. See Tulengkey v. Gonzales , 425 F.3d 1277, 1279 n.1 (10th Cir. 2005) (observing that “[j]udicial review does not extend to points the alien could have ma de before the Board but did not” and that “[i]ssues not raised on appeal [to this c ourt] are deemed to be waiv ed” (internal quotation marks omitted)).- 3 - men as she left school. She believed they were part of the Mara Salvatrucha gang, and that they were aware of her uncles’ in volvement in law enfo rcement. She said that the gang members always asked after he r uncles, wanting to know why they were fighting against the gang members’ friends . She said the group, which always consisted of the same indi viduals, harassed her, pushed her, and took her money. They also warned her that they could harm her family if she reported them to the police, which she did not. As Ms. Campos-Perez left school one day in December 2005, the gang members confronted her and hit her in the head with a pistol, causing her to bleed “a little.” Admin. at 99. She did not seek me dical treatment. She did, however, testify that she thought the gang members “wer e going to kill [her ]” that day. Id. at 98. Indeed, she said they told he r “they were going to kill [her] . . . and that . . . it would all be because of [her] uncles.” Id. at 99. After th is incident, which Ms. Campos-Perez did not report to author ities, she no longer at tended classes. Before applying for asylum in 20 08, Ms. Campos-Perez spoke with her grandmother, who was still in El Salva dor. According to Ms. Campos-Perez, her grandmother told her that men she suspect ed to be gang members had asked her many times where her granddaughter was. At the conclusion of the merits hear ing, Ms. Campos-Perez, through counsel, contended that she suffered past persecution and faced future persecution on account of an immutable characteristic: her kinship with her uncles. She also asserted that- 4 - because she discovered in 2008 that gang me mbers were still searching for her, her asylum application satisf ied an exception to the st atutory one-year deadline. The IJ issued an oral d ecision denying the relief soug ht. The BIA agreed with the IJ’s determination that Ms. Cam pos-Perez failed to show changed or extraordinary circumstances sufficient to render her asylum application timely. See 8 U.S.C. § 1158(a)(2)(D). In particular, the BIA conclude d that Ms. Campos-Perez’s alleged lack of knowledge about the av ailability of asylum , lack of legal representation, and increased fear due to her 2008 conversation with her grandmother did not constitute extraordinary or change d circumstances. The BIA also concurred with the IJ’s denial of rest riction on removal, stating: even if the respondent met her burde n of establishing a nexus between the alleged harm [inflicted by gang members] and one of the grounds enumerated in the Act, the harass ment, pushing, theft, and isolated hitting the respondent suffered did not ri se to the level of persecution. [Further, she] failed to meet her burden of proving that it was more likely than not that her life or freedom would be threatened upon return to El Salvador for purposes of [restriction on] removal. Admin. R. at 4 (internal citations omit ted). This petition for review followed. II. Discussion Because the BIA issued its decision by a brief order signed by a single board member, 8 C.F.R. § 1003.1(e)(5 ), we review the BIA’s deci sion as the final order of removal but “may consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.” Sarr v. Gonzales , 474 F.3d 783, 790 (10th Ci r. 2007). “Our duty is to guarantee that factual determinations are supported by reasonabl e, substantial and- 5 - probative evidence considering the record as a whole. Agency findings of fact are conclusive unless the record demonstrates that any reasonable ad judicator would be compelled to conclude to the contrary.” Id. at 788-89 (citations, internal quotation marks, and brackets omitted). We review the agency’s le gal conclusions de novo. Tulengkey v. Gonzales , 425 F.3d 1277, 1280 (10th Cir. 2005). A. Timeliness of Asylum Application Ms. Campos-Perez contends that th e BIA should have excused the untimely filing of her asylum application becau se she did not know about the one-year deadline and did not immediately contact an attorney after a rriving in the United States. But this court is without “jurisdi ction to review a decision regarding whether an alien established changed or extraordin ary circumstances that would excuse [her] untimely filing” because the nature of this determination is factual and discretionary. Ferry , 457 F.3d at 1130 (internal quotation marks omitted). See also 8 U.S.C. § 1158(a)(3) (providing that no court shall have jurisdicti on to review the Attorney General’s determination rega rding changed or extraordin ary circumstances). We therefore dismiss that portion of the pe tition for review challenging the BIA’s determinations that the asylum applica tion was untimely and that Ms. Campos-Perez did not satisfy an exception to the one-year filing deadline. Ferry , 457 F.3d at 1130. B. Restriction on Removal “Generally speaking, an alien may not be removed to a particular country if he or she can establish a clear probability of persecution in that country on the basis of- 6 - race, religion, nationality, me mbership in a particular social group, or political opinion.” Elzour v. Ashcroft , 378 F.3d 1143, 1149 (10th Cir. 2004). An alien may create a rebuttabl e presumption of eligibility for restriction on removal by either (1) demonstrating past persecution in the proposed country of removal on account of one of the protected grounds; or (2) showing that it is mo re likely than not that the alien would be subject to persecution on one of the specified grounds upon returning to the proposed country of removal. Sidabutar v. Gonzales , 503 F.3d 1116, 1123-24 (10t h Cir. 2007) (citations and internal quotation marks omitted). Persecu tion “may be inflicted by the government itself, or by a non-governmental group that the government is unwilling or unable to control.” Hayrapetyan v. Mukasey , 534 F.3d 1330, 1337 (10t h Cir. 2008) (internal quotation marks omitted); see also Tulengkey , 425 F.3d at 1280 (“Persecution is the infliction of suffering or harm . . . and requires more than just restrictions or threats to life and liberty.” (internal quotation mark s omitted)). “[W]hether an alien has demonstrated persecution is a question of fact.” Hayrapetyan , 534 F.3d at 1335 (internal quotation marks omitted). Ms. Campos-Perez asserts th at she is entitled to re striction on removal because she provided sufficient evid ence she suffered past pers ecution on account of her uncles’ military service. Sh e also contends that she fe ars future persecution because these family member s remain involved in suppressi ng gang activity and because gang members have been looking for her. The BIA concluded that the matters Ms . Campos-Perez testified about neither rose to the level of past pe rsecution, nor demonstrated that it is more likely than not- 7 - that her life or freedom would be threatened upon return to El Salvador. Specifically, the BIA observed that even though evidence in the reco rd suggests that gang-rela ted violence exists in El Salvador and that the level of viol ent crime is high, the respondent has not produced sufficient obj ective evidence from which we can conclude that it is more likely than not that she would be si ngled out and persecuted upon return to El Salvador. Admin. R. at 4. Our review of the record reveals substantial evidence to support the BIA’s conclusions. We therefore deny the balance of the petition. 2
III. Conclusion For the foregoing reasons, the petition fo r review is DISMI SSED in part and DENIED in part. Entered for the Court

David M. Ebel Circuit Judge

2 To the extent Ms. Campos-Perez asks us to reweigh the evidence and conclude that it was sufficient to satisfy he r burden of proof, we cannot do so. See Sidabutar , 503 F.3d at 1125 (“It is not our prerogative to reweigh th e evidence, but only to decide if substantial evid ence supports the agency’s decision.” (internal quotation marks and brackets omitted)). Finally, in so far as she contends that she received ineffective assistance of counsel during he r removal proceedings, this issue was not exhausted before the BIA a nd “[j]udicial review does not extend to points the alien could have made before the Board but did not.” Tulengkey , 425 F.3d at 1279 n.1 (internal quotation marks omitted)). See also Galvez Pineda v. Gonzales , 427 F.3d 833, 837 (10th Cir. 2005) (obs erving that petitioners’ “claim of ineffectiv e assistance of counsel cannot be heard by this court in the fi rst instance”).