Pedro Vincente Sontay v. U.S. Attorney General

Case: 17-11020 Date Filed: 01/22/2018 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-11020 Non-Argument Calendar ________________________ Agency No. A029-543-994 PEDRO VINCENTE SONTAY, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (January 22, 2018) Before MARCUS, MARTIN and JILL PRYOR, Circuit Judges. PER CURIAM: Pedro Vincente Sontay petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of Sontay’s application for special rule cancellation of removal, 8 C.F.R. § 1240.66, Case: 17-11020 Date Filed: 01/22/2018 Page: 2 of 11 Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, div. C, § 309(f), 110 Stat. 3009, 3009-625 (1996), as amended by Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub. L. No. 105-100, tit. II, § 203(b), 111 Stat. 2160, 2198 (1997); asylum under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158(a); and withholding of removal under 8 U.S.C. § 1231(b)(3). In his petition, Sontay argues that: (1) the BIA and IJ improperly denied his claim for special rule cancellation of removal under NACARA -- an issue over which the government says we lack jurisdiction; and (2) the BIA and IJ erred in denying him asylum and withholding of removal by failing to consider his combat experience as a soldier in the Guatemalan army when determining that he did not suffer past persecution on account of a statutorily-protected ground and by failing to consider his eligibility for discretionary relief after finding that conditions in Guatemala had changed. After thorough review, we deny the petition in part and dismiss it in part. We determine our subject matter jurisdiction de novo. Resendiz–Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir.2004). Where we have jurisdiction, we review only the decision of the BIA, except to the extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Where the BIA agrees with the IJ’s reasoning, we will also review the IJ’s decision to that extent. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 2 Case: 17-11020 Date Filed: 01/22/2018 Page: 3 of 11 948 (11th Cir. 2010). On appeal from the BIA’s decision, we review legal questions de novo. Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir. 2013). Factual determinations are reviewed under the substantial-evidence test, which requires us to view the record in the light most favorable to the agency’s decision and draw all reasonable inferences in its favor. Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). First, we conclude that we lack jurisdiction to review Sontay’s argument that the BIA and IJ erred in determining that he was ineligible for special rule cancellation of removal under NACARA § 203. NACARA § 203 amended IIRIRA § 309(c) to create a special rule for cancellation of removal ...

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