                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 23 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JACOBO DE JESUS VENTURA,                         No. 09-70141

              Petitioner,                        Agency No. A070-510-351

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted July 13, 2011 **
                             San Francisco, California

Before: HUG, SKOPIL, and BEEZER, Circuit Judges.

       Jacobo De Jesus Ventura petitions for review of a decision by the Board of

Immigration Appeals (“BIA”) affirming the denial of Ventura’s applications for

asylum, withholding of removal, protection under the Convention Against Torture



        *
             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).
(“CAT”) and relief under the Nicaraguan Adjustment and Central American Relief

Act (“NACARA”). We have jurisdiction to review final orders of removal under

8 U.S.C. § 1252, and we deny the petition for review.

      The facts of this case are known to the parties. We do not repeat them.

      We review the BIA’s factual findings for substantial evidence and its legal

conclusions de novo. See Benyamin v. Holder, 579 F.3d 970, 974 (9th Cir. 2009).

Because the BIA conducted its own review of these claims, we review only the

BIA’s decision, except to the extent the BIA expressly adopted the IJ’s decision.

See Chawla v. Holder, 599 F.3d 998, 1001 (9th Cir. 2010).

      To qualify for asylum, Ventura must show that he is a “refugee.” See 8

U.S.C. § 1158(a). A refugee is a person who “is unable or unwilling to return to”

his or 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.” Id. § 1101(a)(42)(A). To be eligible for

withholding of removal, Ventura must prove “it is more likely than not that he

would be subject to persecution” on one of these grounds. See Al-Harbi v. INS,

242 F.3d 882, 888 (9th Cir. 2001) (internal quotation marks omitted).

      The BIA properly denied Ventura’s asylum and withholding of removal

claims because Ventura failed to establish a nexus between his fear of persecution


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and one of the protected grounds listed in 8 U.S.C. § 1101(a)(42)(A). The only

incident of past persecution is Ventura’s encounter with his neighbor, but

Ventura’s testimony indicates that these threats arose out of a personal conflict

between Ventura’s father and neighbor, not on account of Ventura’s political

opinions or organizational membership. “‘[P]ersonal retribution is, of course, not

persecution on account of”’ a protected basis. See Molina-Morales v. INS, 237

F.3d 1048, 1052 (9th Cir. 2001) (internal quotation marks omitted).

      Further, Ventura’s fear of being kidnaped is not a sufficient basis for asylum

or withholding of removal. “Asylum is not available to victims of indiscriminate

violence, unless they are singled out on account of a protected ground.”

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010). Ventura produced

no evidence that he would actually be targeted for kidnaping, and even if he had,

immigrants returning to their home country after living in the United States do not

comprise a cognizable social group. See id. at 1151-52 (holding that “‘returning

Mexicans from the United States’” did not qualify as a social group).

      The BIA also properly denied Ventura’s CAT claim because Ventura has not

shown a “greater than fifty percent [chance] that he will be tortured if removed to”

El Salvador. See Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004). Ventura

offered no evidence to show that his neighbor would persist in or act on the threats


                                          3
that he made more than twenty years ago. Ventura’s speculation that he might be

kidnaped does not establish a likelihood of torture. See Delgado-Ortiz, 600 F.3d at

1152 (concluding that “generalized evidence of violence and crime in Mexico” did

not warrant CAT relief).

      Finally, regarding Ventura’s NACARA claim, any possible exhaustion

problem was cured by the BIA’s decision to review and resolve this issue on the

merits. See Abebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc)

(holding that “[w]hen the BIA has ignored a procedural defect and elected to

consider an issue on its substantive merits, we cannot then decline to consider the

issue based upon this procedural defect”). We retain jurisdiction over

“constitutional claims or questions of law” regarding a NACARA claim. See

Barrios v. Holder, 581 F.3d 849, 857 (9th Cir. 2009) (internal quotation marks

omitted).

      We agree with the BIA that Ventura’s NACARA claim fails. The record

indicates Ventura stipulated before an IJ that he is not eligible for NACARA relief

because he did not timely file his request. Another IJ later ruled that Ventura was

not eligible because of two prior drug convictions. The BIA noted that Ventura

“suffered multiple convictions, including drug-related convictions” and “does not

otherwise address on appeal his eligibility for NACARA relief.” Given these


                                          4
circumstances, we agree with the BIA that Ventura “has not shown reversible

error.”

      DISMISSED.




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