                                                                          FILED
                          NOT FOR PUBLICATION                              JUN 18 2013

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




                          FOR THE NINTH CIRCUIT



M AGDA VIOLETA ROSALES,                         No. 08-75103

                Petitioner,                     Agency No. A070-084-204

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

                Respondent.


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

                              Submitted June 7, 2013 **
                                Pasadena, California

Before: TROTT, LUCERO, *** and W . FLETCHER, Circuit Judges.

        M agda Violeta Rosales, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order denying her



        *
         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).
        ***
           The Honorable C arlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
application for special rule cancellation of removal under the Nicaraguan

Adjustment and Central American Relief Act (“NACARA”), asylum,

withholding of removal, and protection under the Convention Against

Torture (“CAT”). W e lack jurisdiction over the BIA’s determination that

Rosales was not eligible for NACARA relief and dismiss that claim.

Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we deny the remainder

of the petition.

                                       I

      Our jurisdiction to review an agency’s determination that an applicant

is ineligible for NACARA relief is limited to “constitutional claims or

questions of law” and “application of law to undisputed facts.” Barrios v.

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

omitted). The immigration judge (“IJ”) determined that Rosales failed to

meet her burden of establishing that she had entered the United States

before the NACARA relief deadline or that she had properly registered for

relief. The BIA affirmed. Rosales disagrees with these conclusions, but

because her claim of error rests on disputes of fact, we lack jurisdiction.

See id.




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                                      II

      In considering Rosales’ arguments that the BIA erred in rejecting her

applications for asylum, withholding of removal, and CAT relief, we

review questions of law de novo. Cerezo v. Mukasey, 512 F.3d 1163, 1166

(9th Cir. 2008). W e review factual findings for substantial evidence.

Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006).

      The Attorney General may grant asylum to a noncitizen who is unable

or unwilling to return to 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.” 8 U.S.C.

§ 1101(a)(42)(A); see also 8 U.S.C. § 1158(a). M embership in the same

protected classes allows a petitioner to obtain withholding of removal. 8

U.S.C. § 1231(b)(3).

      Rosales claims that she suffered persecution at the hands of guerillas

because she refused their attempts at conscription, which she characterizes

as a political opinion. The Supreme Court has specifically held that

resistance to recruitment from guerillas in Guatemala is not necessarily the

equivalent of an expression of “political opinion” for purposes of asylum

claims. INS v. Elias-Zacarias, 502 U.S. 478, 481-83 (1992). Rosales also



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argues that she was persecuted due to her membership in a particular social

group made up of individuals who refused to join the guerillas. However,

this court has rejected the analogous claim that individuals who resisted

forced gang membership constitute a “particular social group” for purposes

of asylum and withholding of removal. Ramos-Lopez v. Holder, 563 F.3d

855, 858-62 (9th Cir. 2009). Because Rosales has failed to demonstrate

persecution or a well-founded fear of persecution on account of a protected

ground, we deny the petition as to her asylum and withholding of removal

claims. See Barrios, 581 F.3d at 856.

      To obtain CAT relief, a noncitizen must show that it is “more likely

than not that he or she would be tortured if removed to the proposed

country of removal.” Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir.

2001) (internal quotation marks omitted). Rosales argues in conclusory

fashion that she carried this burden. Our review of the record indicates that

the IJ and BIA permissibly concluded that Rosales failed to carry this

burden. W e thus deny the petition as to Rosales’ CAT claim.

      Finally, Rosales argues that the BIA violated her due process rights

by streamlining the IJ’s decision. W e will grant a petition for review on

due process grounds only if: (1) the proceeding was “so fundamentally



                                        -4-
unfair that the [noncitizen] was prevented from reasonably presenting his

case”; and (2) the noncitizen shows prejudice, “which means that the

outcome of the proceeding may have been affected by the alleged

violation.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (internal

quotation marks omitted). Rosales does not articulate how the BIA’s

streamlining was fundamentally unfair or prejudicial and has thus failed to

demonstrate that she is entitled to relief.

                                       III

      For the foregoing reasons, Rosales’ petition for review is

DISMISSED IN PART AND DENIED IN PART.




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