FILED
NOT FOR PUBLICATION JUN 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
M AGDA VIOLETA ROSALES, No. 08-75103
Petitioner, Agency No. A070-084-204
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 7, 2013 **
Pasadena, California
Before: TROTT, LUCERO, *** and W . FLETCHER, Circuit Judges.
M agda Violeta Rosales, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying her
*
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).
***
The Honorable C arlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
application for special rule cancellation of removal under the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”), asylum,
withholding of removal, and protection under the Convention Against
Torture (“CAT”). W e lack jurisdiction over the BIA’s determination that
Rosales was not eligible for NACARA relief and dismiss that claim.
Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny the remainder
of the petition.
I
Our jurisdiction to review an agency’s determination that an applicant
is ineligible for NACARA relief is limited to “constitutional claims or
questions of law” and “application of law to undisputed facts.” Barrios v.
Holder, 581 F.3d 849, 857 (9th Cir. 2009) (internal quotation marks
omitted). The immigration judge (“IJ”) determined that Rosales failed to
meet her burden of establishing that she had entered the United States
before the NACARA relief deadline or that she had properly registered for
relief. The BIA affirmed. Rosales disagrees with these conclusions, but
because her claim of error rests on disputes of fact, we lack jurisdiction.
See id.
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II
In considering Rosales’ arguments that the BIA erred in rejecting her
applications for asylum, withholding of removal, and CAT relief, we
review questions of law de novo. Cerezo v. Mukasey, 512 F.3d 1163, 1166
(9th Cir. 2008). W e review factual findings for substantial evidence.
Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006).
The Attorney General may grant asylum to a noncitizen who is unable
or unwilling to return to 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.” 8 U.S.C.
§ 1101(a)(42)(A); see also 8 U.S.C. § 1158(a). M embership in the same
protected classes allows a petitioner to obtain withholding of removal. 8
U.S.C. § 1231(b)(3).
Rosales claims that she suffered persecution at the hands of guerillas
because she refused their attempts at conscription, which she characterizes
as a political opinion. The Supreme Court has specifically held that
resistance to recruitment from guerillas in Guatemala is not necessarily the
equivalent of an expression of “political opinion” for purposes of asylum
claims. INS v. Elias-Zacarias, 502 U.S. 478, 481-83 (1992). Rosales also
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argues that she was persecuted due to her membership in a particular social
group made up of individuals who refused to join the guerillas. However,
this court has rejected the analogous claim that individuals who resisted
forced gang membership constitute a “particular social group” for purposes
of asylum and withholding of removal. Ramos-Lopez v. Holder, 563 F.3d
855, 858-62 (9th Cir. 2009). Because Rosales has failed to demonstrate
persecution or a well-founded fear of persecution on account of a protected
ground, we deny the petition as to her asylum and withholding of removal
claims. See Barrios, 581 F.3d at 856.
To obtain CAT relief, a noncitizen must show that it is “more likely
than not that he or she would be tortured if removed to the proposed
country of removal.” Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir.
2001) (internal quotation marks omitted). Rosales argues in conclusory
fashion that she carried this burden. Our review of the record indicates that
the IJ and BIA permissibly concluded that Rosales failed to carry this
burden. W e thus deny the petition as to Rosales’ CAT claim.
Finally, Rosales argues that the BIA violated her due process rights
by streamlining the IJ’s decision. W e will grant a petition for review on
due process grounds only if: (1) the proceeding was “so fundamentally
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unfair that the [noncitizen] was prevented from reasonably presenting his
case”; and (2) the noncitizen shows prejudice, “which means that the
outcome of the proceeding may have been affected by the alleged
violation.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (internal
quotation marks omitted). Rosales does not articulate how the BIA’s
streamlining was fundamentally unfair or prejudicial and has thus failed to
demonstrate that she is entitled to relief.
III
For the foregoing reasons, Rosales’ petition for review is
DISMISSED IN PART AND DENIED IN PART.
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