                                                              NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                     No. 17-3433
                                     ___________

                           JARVIN ORLANDO LOPEZ,
                                    a/k/a
                        JARVIN ORLANDO CRUZ-LOPEZ,

                                         Petitioner

                                         v.

             ATTORNEY GENERAL UNITED STATES OF AMERICA
                  ____________________________________

                     On Petition for Review of a Decision of the
                        United States Department of Justice
                           Board of Immigration Appeals
                               (BIA-1: A094-481-777)
                  Immigration Judge: Honorable Walter A. Durling
                    ____________________________________

                             Argued: September 7, 2018

             Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges

                         (Opinion filed: December 21, 2018)

Sandra L. Greene          [Argued]
Greene Fitzgerald Advocates and Consultants
2575 Eastern Boulevard
Suite 208
York, PA 17402

            Counsel for Petitioner
James A. Hurley            [Argued]
Kiley Kane
Chad A. Readler
United States Department of Justice
Office of Immigration Litigation
Room 5009, P.O. Box 878
Ben Franklin Station
Washington, DC 20044

              Counsel for Respondent



                                        OPINION*




KRAUSE, Circuit Judge.

       Jarvin Orlando Lopez, an alien from El Salvador, petitions for review of two

orders of the Board of Immigration Appeals (BIA) affirming the rejection of his

applications for withholding of removal, for relief under the Convention Against Torture

(CAT), and for cancellation of removal under the Nicaraguan Adjustment and Central

American Relief Act (NACARA). We will deny the petition as to withholding of

removal and CAT relief, but we will grant it and remand to the BIA for further

consideration and explanation as to relief under NACARA.

 I.    Background

       Lopez applied for relief from deportation on several grounds. In one order dated




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

                                             2
March 3, 2017, the BIA affirmed the Immigration Judge’s rejections of Lopez’s

applications for withholding of removal and CAT relief. In a second order issued

October 10, 2017, the BIA also affirmed the rejection of his application for cancellation

of removal under Section 203(b) of NACARA, Pub. L. No. 105-100, 111 Stat. 2160,

2198–2201 (1997), concluding that Lopez was subject to NACARA’s heightened

eligibility criteria that apply to aliens who are “inadmissible under Section 212(a)(2)” of

the Immigration and Nationality Act (INA) as the result of a controlled-substance

conviction, 8 C.F.R. § 1240.66(c)(1). Lopez urged that if he were allowed to seek a

concurrent waiver of inadmissibility pursuant to Section 212(h) of the INA, he then

would satisfy the less demanding criteria that apply to aliens who are not inadmissible

under Section 212(a)(2). But the BIA did not acknowledge or address the effect of a

concurrent waiver request on Lopez’s NACARA eligibility. Instead, it offered only the

cryptic remark that “[e]ven assuming [Lopez] was entitled to a waiver under section

212(h) . . . , [he] has not satisfied his burden for relief under NACARA.” A.R. 8.

II.    Discussion

       Lopez petitions for review of both BIA orders. For the reasons set forth below, we

will deny the petition for review as to the first order (concerning withholding of removal

and CAT relief), but we will grant it and remand for a more reasoned decision from the

BIA under the Chenery doctrine as to the second (concerning the concurrent Section

212(h) waiver and relief under NACARA).

       A. Withholding of Removal and CAT Relief

       Because Lopez’s removal order resulted from a controlled-substance conviction

                                             3
covered by 8 U.S.C. § 1182(a)(2), our jurisdiction here is limited to de novo review of

“constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(C)–(D). See Fan

Wang v. Att’y Gen., 898 F.3d 341, 343 (3d Cir. 2018).

       To the extent Lopez raises a legal challenge to the BIA’s denial of withholding of

removal, it is not one that entitles him to relief. Lopez must show (1) the existence of “a

particular social group that is legally cognizable,” (2) “membership in that group,” and

(3) “a well-founded fear of persecution” connected to group membership. S.E.R.L v.

Att’y Gen., 894 F.3d 535, 544 (3d Cir. 2018). “Persecution” must be conducted by a

foreign government or “by forces the government is unable or unwilling to control.”

Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582, 591 (3d Cir. 2011) (citation omitted).

Lopez argues that the BIA committed legal error on the first prong by failing to apply the

proper standard governing the particularity of the social group to which he purportedly

belongs. But any such error would be harmless, Li Hua Yuan v. Att’y Gen., 642 F.3d 420,

427 (3d Cir. 2011), because—in fact-finding that we lack jurisdiction to review, see Roye

v. Att’y Gen., 693 F.3d 333, 339 (3d Cir. 2012)—the Immigration Judge determined that

Lopez failed on the third prong to prove the Salvadoran government was unable or

unwilling to protect him, and the BIA affirmed on that ground as well.

       With respect to CAT relief, Lopez contends that the BIA violated his due process

rights by failing to adequately address his arguments. Specifically, he claims that “he had

no reasonable opportunity to present his case,” Petitioner’s Br. 37, because the BIA did

not “provide any rationale justifying its denial of [his] CAT claim on acquiescence

grounds,” id. at 36. Lopez points to nothing, however, that demonstrates the BIA

                                             4
“prevented [him] from reasonably presenting his case,” and we see no such evidence in

the record. Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (citation omitted).

We will not recast mere disagreement with the BIA’s decision as a procedural due

process violation.

       B. NACARA Relief

       As to NACARA relief, Lopez concedes that he could not meet the heightened

criteria for aliens who are “inadmissible” because he could not establish ten years of

continued physical presence in the United States immediately following his controlled-

substance conviction. See 8 C.F.R. § 1240.66(c). The physical-presence requirement for

aliens who are “not inadmissible,” however, is seven years of continuous physical

presence preceding the NACARA application, see id. § 1240.66(b), which it appears

Lopez could satisfy. And Lopez claims, if permitted to apply for a concurrent waiver of

inadmissibility under Section 212(h), he would be deemed “not inadmissible” and thus be

subject to this less stringent requirement because Section 212(h) authorizes a waiver of

inadmissibility where, as here, the controlled-substance conviction “relates to a single

offense of simple possession of 30 grams or less of marijuana.” 8 U.S.C. § 1182(h).

       For its part, the Government argues that Lopez is not entitled to seek a concurrent

Section 212(h) waiver, and its position finds some support in BIA precedent and the text

of the relevant statutes and regulations. A Section 212(h) waiver is available only where

“the Attorney General . . . has consented to the alien’s applying or reapplying for” one of

three forms of relief: “a visa, . . . admission to the United States, or adjustment of status.”

8 U.S.C. § 1182(h)(2). And, as the BIA observed in Matter of Y-N-P- in interpreting an

                                              5
analogous cancellation-of-removal provision under Section 240A of the INA, an

application for cancellation of removal does not clearly fit within those three categories.

See Matter of Y-N-P-, 26 I. & N. Dec. 10, 12–16 (2012). Instead, the BIA there

determined that “adjustment of status” in Section 212(h) must refer only to applications

for adjustment of status under Section 245 of the INA, not to applications for cancellation

of removal under Section 240A. See id. at 15–16; see also 8 C.F.R. § 1245.1(f). The

BIA also attached significance to the fact that Congress explicitly provided for the

availability of a concurrent waiver under Section 237(a)(7) in connection with an

application for cancellation of removal under the Special Rule for a Battered Spouse or

Child, 8 U.S.C. §§ 1229b(b)(2), 1229b(b)(5). See Matter of Y-N-P-, 26 I. & N. Dec. at

16–17. Thus, Matter of Y-N-P- could be read to suggest that, unless Congress has

expressly provided otherwise, a concurrent waiver under Section 212(h) is available only

in connection with an application for adjustment of status under Section 245 and is

unavailable in connection with an application that seeks merely cancellation of removal.

See id. at 18–19. It could also, however, be read as discussing only applications for

cancellation under Section 240A.

       Here, Lopez’s only pending application for relief is for cancellation of removal

under Section 203(b) of NACARA,1 so that, as the Government argues, the distinctions



       1
        Lopez originally applied both for adjustment of status and for cancellation of
removal under NACARA, but withdrew his adjustment of status application. In any
event, Lopez was clearly ineligible for adjustment-of-status relief under NACARA,
which is only available to nationals of Nicaragua and Cuba. See NACARA § 202(b)(1),
111 Stat. at 2194.
                                             6
drawn in Matter of Y-N-P- between adjustment of status and cancellation of removal may

pertain. As with Section 245 and Section 240A, NACARA provides for adjustment of

status and cancellation of removal in separate provisions. Compare NACARA § 202(a),

111 Stat. at 2193 (providing for “Adjustment of Status” relief, requiring that an alien

“applies for . . . adjustment,” and referring to Section 245 of the INA), with id. § 203(b),

111 Stat. at 2198 (providing for “Special Rule for Cancellation of Removal,” largely

mirroring the text of Section 240A, and specifying that adjustment of status will occur as

a result of cancellation without separate application for adjustment of status). Moreover,

while 8 C.F.R. § 1245.1(f) specifies that “an application under [Part 1245 of 8 C.F.R.]

shall be the sole method of requesting the exercise of discretion under section[] 212 . . .

(h),” an applicant for cancellation of removal under Section 203(b) must file a Form I-

881, which is defined outside of Part 1245, see 8 C.F.R. § 1240.63(a). And although the

regulations implementing NACARA explicitly speak to the concurrent availability of the

Section 212(h) waiver in connection with an application for adjustment of status under

Section 202 of NACARA, they do not do so with respect to Section 203(b) of NACARA.

See 8 C.F.R. § 1245.13(c)(1) (“An applicant under section 202 of [NACARA] may also

apply for one or more of the immigrant waivers of inadmissibility under section 212 of

the Act . . . .”).

        Whatever the merits of the arguments put forward by Lopez and the Government

on the availability of concurrent waiver, however, the interplay among NACARA,

Section 212(h) waiver, the related regulations, and the reasoning of Matter of Y-N-P- has

not been addressed by the BIA previously, nor did the BIA engage it here. Because we

                                              7
may not “intrude upon the domain which Congress has exclusively entrusted to” the BIA

by affirming on a ground other than “upon which [its] administrative order . . . was

based,” SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 87–88 (1943), we will grant the

petition and remand for the BIA to consider the arguments presented and to articulate the

reasoning underlying its decision.2

III.   Conclusion

       For the aforementioned reasons, we will deny the petition as to the BIA’s March 3,

2017 order, will grant the petition as to the BIA’s October 10, 2017 order, will vacate the

October 10, 2017 order, and will remand to the BIA for proceedings consistent with this

opinion.




       2
        In view of our remand, we need not reach Lopez’s claim that the BIA’s
explanation to date for denying him relief under NACARA was constitutionally deficient.
                                             8
