                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-1404


MARIO RIVERA, a/k/a Mario Antonio Rivers,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   September 18, 2012         Decided:   September 28, 2012


Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Steffanie J. Lewis, THE INTERNATIONAL BUSINESS LAW FIRM, PC,
Washington, D.C. for Petitioner.    Stuart F. Delery, Acting
Assistant Attorney General, Ada E. Bosque, Senior Litigation
Counsel, Lindsay Corliss, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Mario Rivera, a native and citizen of El Salvador,

petitions for review of an order of the Board of Immigration

Appeals    (“Board”)       dismissing          his    appeal        from      the   immigration

judge’s      order       denying        his        application          for       special     rule

cancellation of removal under § 203 of the Nicaraguan Adjustment

and Central American Relief Act (“NACARA”) (Pub. L. No. 105-100,

111    Stat.    2160).          Rivera        challenges          the     findings    that     his

conviction        for    sexual      battery        was       a   crime       involving      moral

turpitude, that he was not a person of good moral character and

that   his     removal     would        not    be    an   exceptional           and   extremely

unusual hardship to him and his family.                             We deny the petition

for review.

               We have noted that Congress did not define a crime

involving moral turpitude.                    See Yousefi v. INS, 260 F.3d 318,

325-26 (4th Cir. 2001).                 We accord substantial deference to the

Board’s determination of what type of conduct involves moral

turpitude.           Id. at 326.          The interpretation must not be an

unreasonable one.           Id.      The Board looks to the elements of the

offense rather than the facts surrounding the crime.                                Id.

               The      Board     has     defined         a       crime     involving        moral

turpitude as being “‘inherently base, vile, or depraved, and

contrary     to      accepted     rules       of    morality        and     the     duties    owed

between      persons      or    to   society         in   general.’”              Prudencio    v.

                                                2
Holder, 669 F.3d 472, 484-85 (4th Cir. 2012) (quoting Matter of

Olquin-Rufino, 23 I. & N. Dec. 896, 896 (BIA 2006)).

              Generally,   the     categorical     approach   involves    giving

consideration “only to the essential elements of the offense and

the fact of conviction.”           United States v. Baxter, 642 F.3d 475,

476 (4th Cir. 2011).         In order to find that a conviction was a

crime involving moral turpitude under the categorical approach

that was utilized in this case, the Board and the immigration

judge must determine whether the crime at issue categorically

involves      moral    turpitude    by     examining   “whether   there     is    a

‘realistic     probability,      not   a   theoretical     possibility,’”    that

the criminal statute “would be applied to reach conduct that

does not involve moral turpitude.”              Matter of Silva-Trevino, 24

I. & N. Dec. 687, 690 (BIA 2009).               “This realistic probability

can be established by showing that, in at least one other case,

the state courts in fact did apply the statute in the special

(nongeneric) manner[.]”            Nunez v. Holder, 594 F.3d 1124, 1129

(9th   Cir.    2010)    (internal      quotation   marks    omitted).     It     is

Rivera’s burden to establish that he is qualified for NACARA

relief.    See 8 C.F.R. § 1240.66(c) (2012).               Thus, he must show

that the conviction can be applied in a way that would not be

considered a crime involving moral turpitude.

              We conclude that the Board did not err in finding that

Rivera’s conviction for Va. Code Ann. § 18.2-67.4 (2009), Sexual

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Battery,    is     categorically         a     crime   involving          moral      turpitude.

Rivera failed to show that the statute could be applied in a way

that would not involve moral turpitude.

              Because       Rivera       was    inadmissible             due    to    a    prior

conviction for a crime involving moral turpitude, in order to

establish eligibility for relief under the NACARA, he needed to

show that he was of good moral character during the ten year

period of continuous presence following the commission of the

offense    and     that     his     removal         would    be     an    exceptional         and

extremely unusual hardship to him and his family.                               See 8 C.F.R.

§ 1240.66(c).

              In Barahona v. Holder, __ F.3d __, 2012 WL 3264386, *3

(4th    Cir.      2012),     we    noted       that    the       court     does      not     have

jurisdiction to review factual findings or discretionary denials

of   relief    under       the    NACARA,      except       to    review       constitutional

claims and questions of law.                 Thus, the findings that Rivera was

not of good moral character or that his removal would not be an

exceptional and extremely unusual hardship, to the extent based

on factual findings and discretion, are not reviewable.

              Rivera attempts to fashion his arguments against the

discretionary findings as reviewable questions of law.                                However,

we     conclude     that     he    has       failed    to        raise    such       reviewable

questions.         Thus,    we    are    without       jurisdiction            to   review   the

discretionary finding that Rivera was not a person of good moral

                                                4
character or that his removal would not be an exceptional and

extremely unusual hardship.

           Accordingly,   we   deny       the   petition   for     review.      We

dispense   with   oral    argument    because       the    facts     and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                             PETITION DENIED




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