                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 09-14961         ELEVENTH CIRCUIT
                                                   AUGUST 17, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                Agency Nos. A071-532-973, A070-689-185


BEZALEEL MORAN-PONCE,
CLAUDIA MARIA MORAN,
CLAUDIA HAIDEE MORAN,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                            (August 17, 2010)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:
       Petitioners Bezaleel Moran-Ponce (“Moran-Ponce”), his wife Claudia

Haidee Moran (“Moran”), and their daughter Claudia Marie Moran (“Claudia”),

seek review of the Board of Immigration Appeals’ (“BIA”) decision affirming the

Immigration Judge’s (“IJ”) dismissal of their claims for asylum, withholding of

removal and relief under the United Nations Convention Against Torture

(“CAT”).1 Petitioners also seek review of the denial of Moran’s application for

cancellation of removal based on hardship to her two U.S.-born children. After

review, we deny in part and dismiss in part the petition for review.

                                   I. BACKGROUND

       Petitioners, Guatemalan citizens, entered the United States without being

admitted or paroled and filed applications for asylum, withholding of removal and

CAT relief. Petitioners claimed persecution by pro-communist guerrillas in

Guatemala.

A.     Events in Guatemala

       According to their applications and hearing testimony, Moran-Ponce was not

politically active or a member of any Guatemalan political organization. Moran-



       1
         The IJ and the BIA considered Moran-Ponce’s wife, Moran, and daughter, Claudia, as
derivative beneficiaries of Moran-Ponce’s asylum and withholding of removal claims. Thus, our
holding as to Moran-Ponce’s asylum claim applies equally to them. However, withholding of
removal does not include derivative rights. See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862
(11th Cir. 2007). Thus, we affirm the denial of any derivative claims of withholding of removal
on that basis.
                                                2
Ponce worked with his brother-in-law transporting appliance parts throughout

Guatemala. Guerrillas would set up road blocks around the country to stop drivers

and demand a “war tax.”

      At some point in 1987 or 1988, guerrillas demanded that Moran-Ponce pay

the war tax. After Moran-Ponce refused, he and his brother-in-law began receiving

threatening anonymous notes stating that they must pay the war tax because they

were businessmen. Moran-Ponce and his brother-in-law ignored the notes because

they did not believe anything would happen to them.

      In April 1988, Moran-Ponce’s brother-in-law was shot and killed in front of

his house. After the killing, Moran-Ponce was kidnapped by unidentified men

with machine guns, beaten and stabbed in the arm with a knife. The men told

Moran-Ponce that he had a “matter pending with them,” which Moran-Ponce

believed was a reference to the bribes he had refused to pay the guerrillas. The

men drove Moran-Ponce to the outskirts of the city, where they intended to kill

him. However, Moran-Ponce jumped out of the car and escaped.

      In July 1989, Moran-Ponce fled to the United States, leaving his wife and

infant daughter, Claudia, in Guatemala. After Moran-Ponce left, his wife and

father continued to receive threatening phone calls and letters. Moran-Ponce’s

wife received about six anonymous notes at her home threatening that something

bad was going to happen to her and her daughter. The notes did not give a reason
                                          3
for the threats. In June 1991, Moran-Ponce’s wife and daughter followed him to

the United States.

B.    Events in the United States

      Since arriving in the United States, Moran-Ponce and his wife have had two

additional children, Derek and Rocio Moran, who are U.S. citizens. Moran applied

for cancellation of removal based on the hardship her removal would cause these

two U.S. citizen children. Moran testified that her children would suffer in

Guatemala due to lack of educational and economic opportunities and because of

Derek’s asthma and panic attacks. However, Moran did not submit any of Derek’s

medical records pertaining to his asthma or panic attacks.

      In April 2000, Moran-Ponce was convicted of possession of cocaine in a

Florida state court. The government’s notice to appear (“NTA”) charged Moran-

Ponce with removability because, inter alia, his 2000 cocaine conviction was for a

controlled substance offense pursuant to INA § 212(a)(2)(A)(i)(II), 8 U.S.C.

§ 1182(a)(2)(A)(i)(II). At his removal hearing, Moran-Ponce admitted the factual

allegations in the NTA and conceded the charges of removability.

C.    IJ’s Ruling

      As to asylum and withholding of removal, the IJ credited the petitioners’

testimony, but denied all relief from removal. The IJ concluded, inter alia, that the

petitioners were statutorily ineligible for asylum and withholding of removal
                                          4
because they had not shown a nexus between the Guatemalan guerrillas’

mistreatment of them and any of the five protected grounds. As to Moran-Ponce’s

asylum claim, the IJ alternatively denied relief as an exercise of discretion due to

Moran-Ponce’s 2000 Florida cocaine conviction, which the IJ found was a crime of

moral turpitude and a serious crime involving a controlled substance. The IJ

denied Moran’s request for cancellation of removal, finding that Moran had not

established exceptional and extremely unusual hardship.

       On appeal, the BIA agreed with the IJ that the petitioners had not shown the

required nexus, explaining that attempted criminal extortion does not constitute

persecution on a protected ground.2 The BIA declined to address the IJ’s findings

as to Moran-Ponce’s criminal conviction and stated that Moran-Ponce had not

contested them. The BIA affirmed the IJ’s denial of cancellation of removal,

finding the IJ correctly concluded that Moran had not shown the requisite level of

hardship to her U.S. citizen children.

                                      II. DISCUSSION



       2
         Before the BIA, the petitioners did not challenge the IJ’s denial of Moran’s and
Claudia’s separate applications for asylum, withholding of removal and CAT relief. Instead,
they challenged the IJ’s findings as to Moran-Ponce’s claims for which they were considered
derivative beneficiaries. Likewise, in their petition for review to this Court, petitioners do not
challenge the denial of Moran’s and Claudia’s separate applications for relief. Thus, Moran and
Claudia have failed to exhaust and have abandoned these claims. See Sundar v. I.N.S., 328 F.3d
1320, 1323 (11th Cir. 2003) (“[This Court] lack[s] jurisdiction to consider claims that have not
been raised before the BIA.”); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005) (“When an appellant fails to offer argument on an issue, that issue is abandoned.”).
                                                   5
A.    Jurisdiction

      As a threshold matter, our jurisdiction to review Moran-Ponce’s final order

of removal is limited by INA § 242(a)(2), 8 U.S.C. § 1252(a)(2), which strips this

Court of jurisdiction to review a final removal order “against an alien who is

removable by reason of having committed” a controlled substance offense pursuant

to INA § 212(a)(2)(A)(i)(II), 8 U.S.C. § 1182(a)(2)(A)(i)(II), except to the extent

the alien raises “constitutional claims or questions of law.” INA § 242(a)(2)(C),

(D), 8 U.S.C. § 1252(a)(2)(C), (D). In cases involving aliens who are removable

by virtue of a controlled substance offense, we do not have jurisdiction to review

factual determinations made by the IJ or the BIA. Jean-Pierre v. U.S. Att’y Gen.,

500 F.3d 1315, 1320-22 (11th Cir. 2007); see also Cadet v. Bulger, 377 F.3d 1173,

1184 (11th Cir. 2004). However, we retain jurisdiction to review the application

of law to undisputed facts. Jean-Pierre, 500 F.3d at 1322. Stated another way, we

retain jurisdiction to review “the application of an undisputed fact pattern to a legal

standard.” Id. Accordingly, whether an undisputed fact pattern amounts to

persecution requires a court to apply a legal definition to a set of undisputed facts.

Thus, we retain jurisdiction to entertain whether the fact pattern here constitutes

persecution.

      As outlined above, it is undisputed that Moran-Ponce is removable due to his

cocaine conviction. Although we lack jurisdiction to review the IJ’s factual
                                           6
determinations, we retain jurisdiction to determine the legal question of whether

those facts constitute persecution. To do that we retain jurisdiction to determine

whether the fact pattern here legally satisfied the requirement to show a nexus

between the alleged persecution and one of the statutorily protected grounds.3

B.     Persecution Claim

       To establish eligibility for asylum, a petitioner must show either past

persecution or a well-founded fear of future persecution on account of his race,

religion, nationality, membership in a particular social group or political opinion.

See INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); Sepulveda v. U.S. Att’y

Gen., 401 F.3d 1226, 1230-31 (11th Cir. 2005); 8 C.F.R. § 208.13(a), (b).

Similarly, an alien seeking withholding of removal must show that it is more likely

than not that if returned to his home country he will be persecuted based on one of

those same grounds. See INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A);

Sepulveda, 401 F.3d at 1232; 8 C.F.R. § 208.16(b)(1)-(2).

       It is well-settled that persecution for refusing to cooperate with guerillas is

not persecution on account of a protected ground. See Sanchez v. U.S. Att’y Gen.,

392 F.3d 434, 438 (11th Cir. 2004). Additionally, acts of private violence and

criminal activity do not constitute persecution on a protected ground. Ruiz v. U.S.



       3
        We review the IJ’s and the BIA’s legal determinations de novo. D-Muhumed v. U.S.
Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004).
                                                7
Att’y Gen., 440 F.3d 1247, 1258 (11th Cir. 2006). Based on the foregoing settled

principles, we have concluded that being targeted by a guerrilla group for

extortionate purposes is not persecution on account of a protected ground. Rivera

v. U.S. Att’y Gen., 487 F.3d 815, 821-23 (11th Cir. 2007) (involving a refusal to

pay the FARC’s “war tax”).

      Here, the IJ found that the guerrillas in Guatemala demanded that Moran-

Ponce pay a war tax because he was a businessman and then threatened and

kidnapped him because he refused to pay. Under our precedent discussed above,

these facts do not show the required nexus.

      Petitioners argue that the IJ and the BIA failed to consider mixed motives.

See Rivera, 487 F.3d at 821 (explaining that an applicant may be eligible for

asylum or withholding of removal if he shows that the persecution was motivated

in part by a protected ground). However, Moran-Ponce was not politically active

in Guatemala and offered no evidence that his refusal to pay was in any way

related to a protected ground or that the guerrillas believed his refusal to pay was

related to a protect ground. The only motives apparent from the facts were a desire

to extort money from Moran-Ponce because he was a successful businessman and

then to punish him because he did not comply with the guerrillas’ extortion

demands. Thus, as a matter of law, petitioners were not eligible for asylum or



                                           8
withholding of removal.4 We deny the petition for review as to Moran-Ponce’s

claims of asylum and withholding of removal.

C.     Cancellation of Removal

       The Attorney General has the discretion to cancel the removal of a

nonpermanent resident who, among other things, establishes that removal would

result in “exceptional and extremely unusual hardship to the alien’s [United States

citizen or lawful permanent resident] spouse, parent, or child.” INA § 240A(b)(1),

8 U.S.C. § 1229b(b)(1). The IJ and the BIA concluded that Moran did not

establish the hardship requirement, and petitioners challenge that ruling on appeal.

       We do not have jurisdiction to review the denial of relief under § 1229b,

including the discretionary determination that an alien failed to satisfy the hardship

requirement, except in appeals that raise a constitutional claim or question of law.

INA § 242(a)(2)(B)(i), (a)(2)(D), 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D); see also

Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006). Here,

petitioners do not raise any constitutional or legal issues with respect to the denial

of Moran’s request for cancellation of removal. Therefore, we dismiss the petition

for review to the extent it challenges the denial of Moran’s application for

cancellation of removal.

       4
        Petitioners’ appellate briefs made only a passing reference to the denial of CAT relief
and did not offer any substantive argument as to that issue. Accordingly, that claim is deemed
abandoned. See Sepulveda, 401 F.3d at 1228 n.2.
                                                 9
PETITION DENIED IN PART, DISMISSED IN PART.




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