09 -3 300- ag

Chicas v. Holder BIA Nelson, IJ A029 066 683 

### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

RULINGS BY SUMMARY ORDER DO N OT H AV E PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITT ED 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 ADOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELEC TRON IC DA TABA SE (W IT H T HE NO TA TI ON “S UMMARY ORDE R” ). A PAR TY CI TI NGA S UMMARY 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 day of June, two thousand ten. th 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,2 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. 1 0 Juan Carlos Chicas, a native and citizen of El 1 1 Salvador, seeks review of a July 10, 2009, order of the BIA, 1 2 affirming the October 18, 2007, decision of Immigration 1 3 Judge (“IJ”) Barbara A. Nelson, which denied his application 1 4 for cancellation of removal, special rule cancellation under 1 5 the Nicaraguan Adjustment and Central American Relief Act 1 6 (“NACARA”), asylum, and withholding of removal. In re Juan 17 Carlos Chicas , No. A029 066 683 (B.I.A. July 10, 2009), 18 aff’gNo. A029 066 683 (Immig. Ct. N.Y. City Oct. 18, 2007). 1 9 We assume the parties’ familiarity with the underlying facts 2 0 and procedural history in this case. 2 1 Under the circumstances of this case, we review the 2 2 decision of the IJ as supplemented by the BIA. See Yan Chen 23 v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). The 2 4 applicable standards of review are well-established. See 25 Salimatou Bah v. Mukasey , 529 F.3d 99, 110 (2d Cir. 2008);3 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. 1 0 105-100, 111 Stat. 2160, 2197-98 (stating that NACARA is 1 1 also subject to the jurisdiction-stripping provisions of 8 1 2 U.S.C. 1252(a)(2)(B)); Barco-Sandoval v. Gonzales , 516 F.3d 1 3 35, 38-39 (2d Cir. 2008). Moreover, Chicas’s 1 4 unsubstantiated assertions that the agency ignored evidence 1 5 do not raise a reviewable claim because the record indicates 1 6 that the IJ considered the evidence, but found that a 1 7 favorable exercise of discretion was not warranted due to 1 8 the petitioner’s convictions for drinking and driving. 1 9 Accordingly, we dismiss the petition for review to this 2 0 extent. See Barco-Sandoval , 516 F.3d at 39-40. 2 1 Chicas also argues that the IJ “pretermitted” testimony 2 2 regarding the hardship his family would suffer upon his4 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 1 0 of Chicas’s wife and son concerning the hardship on his 1 1 family. See Li Hua Lin v. U.S. Dep’t of Justice , 453 F.3d 1 2 99, 104-05 (2d Cir. 2006). 1 3 As the Government correctly points out, Chicas raises a 1 4 host of arguments in his brief that he failed to exhaust 1 5 before the agency. We decline to entertain these arguments 1 6 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 1 9 Chicas argues that agency erred in denying his 2 0 application for asylum because he demonstrated that he 2 1 suffered past persecution on account of his membership in 2 2 the social group of orphans and his imputed political5 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 1 0 n.3.; cf. Jorge-Tzoc v. Gonzales , 435 F.3d 146, 149-150 (2d 1 1 Cir. 2006) (IJ erred in failing to consider evidence that 1 2 violence in El Salvador was aimed at petitioner’s particular 1 3 social group of Mayans). 1 4 Because the agency reasonably determined that Chicas 1 5 did not establish past persecution, he was not entitled to a 1 6 presumption of future persecution. See 8 C.F.R. 1 7 §§ 208.13(b)(1), 1208.16(b)(1). Insofar as Chicas does not 1 8 argue that he established a well-founded fear of 1 9 persecution, we find no basis to disturb the agency’s 2 0 finding that he did not do so. Finally, because the agency 2 1 reasonably found that Chicas did not establish his claim of 2 2 past persecution, it did not err in declining to address the 2 3 possibility of “humanitarian asylum” pursuant to 8 C.F.R.6 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).

For the foregoing reasons, the petition for review is 8 9 DISMISSED in part and DENIED in part. As we have completed 1 0 our review, any stay of removal that the Court previously 1 1 granted in this petition is VACATED, and any pending motion 1 2 for a stay of removal in this petition is DISMISSED as moot. 1 3 Any pending request for oral argument in this petition is 1 4 DENIED in accordance with Federal Rule of Appellate 1 5 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 1 6 FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 17 18 19 20 21