NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 1 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ERNESTO CALDERON VINDEL, No. 13-71330
Petitioner, Agency No. A076-371-090
v.
MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
David Ernesto Calderon Vindel, a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his application for
asylum and withholding of removal. Our jurisdiction is governed by 8 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1252. We review for substantial evidence the agency’s factual findings and
review de novo questions of law and claims of due process violations in
immigration proceedings. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir.
2014). We review for abuse of discretion the denial of a motion to remand.
Taggar v. Holder, 736 F.3d 886, 889 (9th Cir. 2013). We deny in part and dismiss
in part the petition for review.
Substantial evidence supports the agency’s conclusion Calderon Vindel did
not experience past persecution, where he left El Salvador fearing recruitment by
guerillas or the military, but was never detained or harmed. See Nagoulko v. INS,
333 F.3d 1012, 1016 (9th Cir. 2003) (persecution is “an extreme concept”)
(citation and quotation marks omitted). Substantial evidence also supports the
agency’s determination that Calderon Vindel’s fear of forced recruitment was not
on account of a protected ground. See INS v. Elias-Zacarias, 502 U.S. 478, 483
(1992); Padash v. INS, 358 F.3d 1161, 1166-67 (9th Cir. 2004) (petitioner did not
establish he would be recruited or singled out for persecution by the military on
account of a protected ground). Further, substantial evidence supports the
agency’s findings that Calderon Vindel failed to establish a well-founded fear of
persecution based on his fear of harm by gang members, see Zetino v. Holder, 622
F.3d 1007, 1016 (9th Cir. 2010) (fear of “harassment by criminals motivated by
theft or random violence by gang members bears no nexus to a protected ground”),
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or his fear of harm based on his daughter’s medical conditions, see Nagoulko, 333
F.3d at 1018 (possibility of persecution “too speculative”). Because the agency
considered the merits of Calderon Vindel’s asylum claim, we reject his due process
contentions related to the withdrawal of his asylum application. See Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process
claim). Thus, even if his asylum application was timely, his asylum claim fails.
In this case, because Calderon Vindel failed to establish eligibility for
asylum, he failed to satisfy the standard for withholding of removal. See Zehatye
v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
The BIA did not abuse its discretion in denying Calderon Vindel’s motion to
remand his case to the IJ in order to apply for relief under the Nicaraguan
Adjustment and Central American Relief Act. See Angov v. Lynch, 788 F.3d 893,
897 (9th Cir. 2015) (no abuse of discretion where petitioner “didn’t provide any
evidence supporting his motion”), cert. denied, 136 S. Ct. 896 (2016).
Finally, we lack jurisdiction to consider Calderon Vindel’s contentions
regarding repapering because he did not raise them to the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (petitioner must exhaust issues or
claims in administrative proceedings below).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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