David Swinton v. Adam J. Starke

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2688
___________________________
Hector Antonio Fabian
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: May 21, 2020
Filed: May 27, 2020
[Unpublished]
____________
Before BENTON, SHEPHERD, and GRASZ, Circuit Judges.
____________
PER CURIAM.
Hector Antonio Fabian, a native and citizen of El Salvador, petitions for review
of an order of the Board of Immigration Appeals that upheld an immigration judge’s
denial of asylum, withholding of removal, and special rule cancellation of removal
under section 203(b) of the Nicaraguan Adjustment and Central American Relief Act
(NACARA), Pub. L. No. 105-100, 111 Stat. 2198, amended by Pub. L. No. 105-139,

-- 1 of 3 --

111 Stat. 2644 (1997). Having jurisdiction under 8 U.S.C. 1252(a)(1), and under
(a)(2)(D) to review constitutional claims or questions of law, this court finds no basis
for reversal.
Substantial evidence supports the agency’s determination that Fabian was not
entitled to asylum because he did not demonstrate past persecution or an objectively
reasonable well-founded fear of future persecution. See 8 U.S.C. § 1158(b)(1)
(asylum requirements); Mayorga-Rosa v. Sessions, 888 F.3d 379, 382 (8th Cir. 2018)
(standard of review); see also Castillo-Gutierrez v. Lynch, 809 F.3d 449, 452 (8th
Cir. 2016) (to be objectively reasonable, fear of persecution must not be speculative);
Barillas-Mendez v. Lynch, 790 F.3d 787, 789 (8th Cir. 2015) (persecution is extreme
concept that excludes low-level intimidation and harassment, and isolated violence);
Al Yatim v. Mukasey, 531 F.3d 584, 588-89 (8th Cir. 2008) (difficulties from
generalized violence or crime typically do not qualify as persecution). Because
Fabian failed to satisfy his burden of proof for his asylum claim, he necessarily failed
to satisfy the more rigorous standard for withholding of removal. See Al Tawm v.
Ashcroft, 363 F.3d 740, 744 (8th Cir. 2004).
This court is without jurisdiction to review the agency’s discretionary decision
to deny special rule cancellation of removal, except to the extent that Fabian has
raised a constitutional claim or question of law. See NACARA § 203(b); 8 U.S.C. §
1252(a)(2)(B)(i) (jurisdictional bar on reviewing, as relevant, discretionary denial of
cancellation of removal), (a)(2)(D) (exceptions to jurisdictional bar). This court
concludes that it lacks jurisdiction to review Fabian’s argument that the agency
improperly weighed the factors in exercising its discretion to deny special rule
cancellation of removal, as this does not raise a constitutional claim or question of
law outside of the jurisdictional bar. See Guled v. Mukasey, 515 F.3d 872, 880 (8th
Cir. 2008); see also Monroy v. Lynch, 821 F.3d 1175, 1176-78 (9th Cir. 2016). To
the extent Fabian argues that the agency was prohibited, as a matter of law, from
considering convictions outside of the seven-year time frame in exercising its
-2-

-- 2 of 3 --

discretion, this court discerns no error. See Argueta v. Holder, 617 F.3d 109, 111-13
(2d Cir. 2010); cf. Ikenokwalu-White v. I.N.S., 316 F.3d 798, 805-06 (8th Cir. 2003).
The petition is denied to the extent Fabian challenges the agency’s adverse
asylum and withholding of removal determinations or raises a legal challenge to the
denial of special rule cancellation of removal, and is dismissed in all other respects
for lack of jurisdiction. See 8th Cir. R. 47B.
______________________________
-3-

-- 3 of 3 --