Jacobo Ventura v. Eric H. Holder Jr. , 459 F. App'x 633 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 23 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JACOBO DE JESUS VENTURA, No. 09-70141
Petitioner, Agency No. A070-510-351
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 13, 2011 **
San Francisco, California
Before: HUG, SKOPIL, and BEEZER, Circuit Judges.
Jacobo De Jesus Ventura petitions for review of a decision by the Board of
Immigration Appeals (“BIA”) affirming the denial of Ventura’s applications for
asylum, withholding of removal, protection under the Convention Against Torture
*
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).
(“CAT”) and relief under the Nicaraguan Adjustment and Central American Relief
Act (“NACARA”). We have jurisdiction to review final orders of removal under
8 U.S.C. § 1252, and we deny the petition for review.
The facts of this case are known to the parties. We do not repeat them.
We review the BIA’s factual findings for substantial evidence and its legal
conclusions de novo. See Benyamin v. Holder, 579 F.3d 970, 974 (9th Cir. 2009).
Because the BIA conducted its own review of these claims, we review only the
BIA’s decision, except to the extent the BIA expressly adopted the IJ’s decision.
See Chawla v. Holder, 599 F.3d 998, 1001 (9th Cir. 2010).
To qualify for asylum, Ventura must show that he is a “refugee.” See 8
U.S.C. § 1158(a). A refugee is a person who “is unable or unwilling to return to”
his or her home country “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” Id. § 1101(a)(42)(A). To be eligible for
withholding of removal, Ventura must prove “it is more likely than not that he
would be subject to persecution” on one of these grounds. See Al-Harbi v. INS,
242 F.3d 882, 888 (9th Cir. 2001) (internal quotation marks omitted).
The BIA properly denied Ventura’s asylum and withholding of removal
claims because Ventura failed to establish a nexus between his fear of persecution
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and one of the protected grounds listed in 8 U.S.C. § 1101(a)(42)(A). The only
incident of past persecution is Ventura’s encounter with his neighbor, but
Ventura’s testimony indicates that these threats arose out of a personal conflict
between Ventura’s father and neighbor, not on account of Ventura’s political
opinions or organizational membership. “‘[P]ersonal retribution is, of course, not
persecution on account of”’ a protected basis. See Molina-Morales v. INS, 237
F.3d 1048, 1052 (9th Cir. 2001) (internal quotation marks omitted).
Further, Ventura’s fear of being kidnaped is not a sufficient basis for asylum
or withholding of removal. “Asylum is not available to victims of indiscriminate
violence, unless they are singled out on account of a protected ground.”
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010). Ventura produced
no evidence that he would actually be targeted for kidnaping, and even if he had,
immigrants returning to their home country after living in the United States do not
comprise a cognizable social group. See id. at 1151-52 (holding that “‘returning
Mexicans from the United States’” did not qualify as a social group).
The BIA also properly denied Ventura’s CAT claim because Ventura has not
shown a “greater than fifty percent [chance] that he will be tortured if removed to”
El Salvador. See Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004). Ventura
offered no evidence to show that his neighbor would persist in or act on the threats
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that he made more than twenty years ago. Ventura’s speculation that he might be
kidnaped does not establish a likelihood of torture. See Delgado-Ortiz, 600 F.3d at
1152 (concluding that “generalized evidence of violence and crime in Mexico” did
not warrant CAT relief).
Finally, regarding Ventura’s NACARA claim, any possible exhaustion
problem was cured by the BIA’s decision to review and resolve this issue on the
merits. See Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc)
(holding that “[w]hen the BIA has ignored a procedural defect and elected to
consider an issue on its substantive merits, we cannot then decline to consider the
issue based upon this procedural defect”). We retain jurisdiction over
“constitutional claims or questions of law” regarding a NACARA claim. See
Barrios v. Holder, 581 F.3d 849, 857 (9th Cir. 2009) (internal quotation marks
omitted).
We agree with the BIA that Ventura’s NACARA claim fails. The record
indicates Ventura stipulated before an IJ that he is not eligible for NACARA relief
because he did not timely file his request. Another IJ later ruled that Ventura was
not eligible because of two prior drug convictions. The BIA noted that Ventura
“suffered multiple convictions, including drug-related convictions” and “does not
otherwise address on appeal his eligibility for NACARA relief.” Given these
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circumstances, we agree with the BIA that Ventura “has not shown reversible
error.”
DISMISSED.
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