Bran-Delcid v. Ashcroft

101 F. App'x 711

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 22, 2004
• Docket: No. 03-71313
• Status: Published

Opinion

MEMORANDUM

**

Maria Luisa Bran-Delcid, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an immigration judge’s (“IJ”) decision denying her application for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence. Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995). We deny the petition for review in part, and dismiss in part.

Substantial evidence supported the IJ’s denial of Bran-Delcid’s asylum application because Bran-Delcid did not establish that the incidents that occurred in Guatemala in August 1991 were on account of her political opinion or any other statutorily-protected ground. See Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.2000). BranDelcid also failed to show a well-founded fear of future persecution if she returned to Guatemala because she did not overcome evidence of changed country conditions. See Molino-Estrada v. INS, 293 F.3d 1089, 1095-96 (9th Cir.2002).

Because Bran-Delcid failed to establish eligibility for asylum, she necessarily failed to meet the “more stringent” standard for withholding of removal. Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001).

Bran-Delcid’s contention that her case should be remanded for consideration of suspension of deportation fails because the notice to appear served on November 9, 1998 placed her in removal proceedings under the permanent rules, rather than deportation proceedings. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889 n. 3 (9th Cir.2003).

Bran-Delcid’s contention that the Nicaraguan Adjustment and Central American Relief Act (“NACARA”) favors certain aliens over others and therefore violates equal protection fails because the Act “easily satisfies the rational basis test.” See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 603 (9th Cir.2002).

Bran-Delcid’s contention that the BIA’s summary affirmance without an opinion violates due process is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 848-49 (9th Cir.2003).

Bran-Delcid’s contention that her due process rights were violated when an incomplete administrative record was filed with this Court fails because the problem was cured and she did not show prejudice. See Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir.2002). We lack jurisdiction to consider any contention that the BIA violated due process when it allegedly relied upon an incomplete record in reviewing Bran-Delcid’s appeal, because she did not present this claim to the BIA. See Liu v. Waters, 55 F.3d 421, 426 (9th Cir.1995) (requiring administrative exhaustion of due process claims involving procedural errors correctable by the BIA).

We similarly do not have jurisdiction to review Bran-Delcid’s contentions that her case should be remanded for consideration for special rule cancellation under NA-CARA and for relief under the Convention Against Torture, because she did not seek such relief before either the IJ or the BIA. See Ortiz v. INS, 179 F.3d 1148, 1152-53 (9th Cir.1999).

Pursuant to Desta v. Ashcroft, 365 F.3d 741, 750-51 (9th Cir.2004), Bran-Delcid’s motion to stay of removal included a timely request to stay voluntary departure. Because her motion for stay of removal was granted, the voluntary departure period was also stayed, nunc pro tune, to the filing of the motion for stay of removal and this stay will expire upon issuance of the mandate.

PETITION FOR REVIEW DENIED in part, DISMISSED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.