United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2946

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Luis Alonso Martinez-Guzman, *

*

Petitioner, *

* Petition for Review of an Order of the

v. * Board of Immigration Appeals.

* 

Eric H. Holder, Jr., Attorney General * [UNPUBLISHED]

of the United States, *

* 

Respondent. *

*

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Submitted: April 20, 2012

Filed: May 22, 2012

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Before WOLLMAN, BYE, and BENTON, Circuit Judges.

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PER CURIAM.

Luis Alonso Martinez-Guzman entered the United States in 1993 from

El Salvador on a tourist visa and has remained here since. In 2007, Guzman was

served with a Notice to Appear, charging him with removability pursuant to the

Immigration and Nationality Act § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Guzman

filed petitions for asylumand withholding ofremoval. The immigration judge denied

Guzman's applications, finding Guzman's petition for asylum untimely and,

alternatively, determining Guzman had failed to establish he had suffered from past

persecution, or well-founded fear of future persecution, in El Salvador. Because
Guzman failed to establish a claim for asylum, the immigration judge found that

Guzman necessarily failed to meet the higher burden necessary to make out a claim

for withholding of removal. The Board of Immigration Appeals ("BIA") affirmed,

and Guzman petitions for our review of the BIA's decision.

First, we lack jurisdiction to review the BIA's determinations Guzman's asylum

petition was barred as untimely filed, and Guzman failed to demonstrate changed or

extraordinary circumstances which could have brought him within a statutory

exception to the one-year filing deadline. See 8 U.S.C. § 1158(a)(3); Chibwe v.

Holder, 569 F.3d 818, 819-20 (8th Cir. 2009).

Second, although Guzman raises two arguments we may treat as

"constitutional claims or questions of law," which 8 U.S.C. § 1252(a)(2)(D) treats as

exceptions to the general jurisdictional bar on our review, neither are successful. We

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reject Guzman's claim the BIA made a mistake of law by failing to articulate a

reasonable basis for affirming the immigration judge's decision. See Begna v.

Ashcroft, 392 F.3d 301, 304 (8th Cir. 2004) ("[T]he BIA's use of a summary

affirmance process does not itself violate petitioners' due process rights."); Molathwa

v. Ashcroft, 390 F.3d 551, 553 (8th Cir. 2004) ("[T]he BIA's decision to streamline

[the petitioner's] case is immune from our review. Additionally, the BIA's

streamlined procedures do not violate due process."). Further, we are precluded from

reviewing Guzman's alternative argument that the United Nations Protocol relating

to the Status of Refugees, which contains no filing deadline and to which the United

To the extent Guzman raises other arguments expressing his dissatisfaction

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with the immigration judge's determination Guzman failed to demonstrate changed

circumstances, we hold these are not the types of claims Congress intended usto have

jurisdiction to consider. See, e.g., Manani v. Filip, 552 F.3d 894, 900 n.3 (8th Cir.

2009) ("A petitioner may not create the jurisdiction that Congress chose to remove

simply by cloaking an abuse of discretion argument in constitutional garb.") (internal

quotation marks and citation omitted).

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States is a signatory, trumps the statutory limitations in 8 U.S.C. § 1158(a)(2)(B) and

(D). "Although this argument presents a question of law under [8 U.S.C.]

§ 1252(a)(2)(D), we may not consider it because [Guzman] failed to raise the issue

before the BIA." Manani, 552 F.3d at 900.

Finally, we have jurisdiction to consider Guzman's claim the BIA improperly

denied his application for withholding of removal. See id. However, based on the

record before us, we hold substantial evidence supportsthe BIA's alternative holding

that because Guzman failed to prove a past or well-founded fear of future persecution

necessary to receive asylum, Guzman necessarily failed to prove he was eligible for

withholding of removal. See Malonga v. Holder, 621 F.3d 757, 764 (8th Cir. 2010)

("We consider administrative findings of fact under the deferential

substantial-evidence standard."); Malgona v. Mukasey, 546 F.3d 546, 551 n.2 (8th

Cir. 2008) ("Withholding of removal, unlike asylum, is not subject to a one-year

filing period. . . . The clear probability standard for withholding of removal is more

onerous than the well-founded fear standard for asylum.").

Accordingly, consistent with this opinion,we dismissGuzman's petition for our

review to the extent we lack jurisdiction. Further, for the foregoing reasons, we deny

the remainder of the petition.

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