          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                March 25, 2008
                               No. 07-60146
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

JOSE ENRIQUE IXCHOP SOLIS

                                          Petitioner

v.

MICHAEL B. MUKASEY, U S ATTORNEY GENERAL

                                          Respondent


                    Petition for Review of an Order of the
                       Board of Immigration Appeals
                            BIA No. A29 914 220


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Jose Enrique Ixchop Solis (Ixchop) is a 35-year old male who is a native
and citizen of Guatemala. He seeks review of the denial of his applications for
asylum, withholding of deportation, relief under the Convention Against Torture
(CAT), and cancellation of removal under the Nicaraguan Adjustment and
Central American Relief Act (NACARA) and the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA).



      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 07-60146

      On a petition for review of a decision by the Board of Immigration Appeals
(BIA), this court reviews factual findings for substantial evidence and questions
of law de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). This
court reviews the order of the BIA and will consider the underlying decision of
the Immigration Judge (IJ) only if it influenced the BIA’s determination.
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Because the IJ’s decision in
this case influenced the BIA’s decision, the IJ’s decision must be considered. See
id.
      The Attorney General has the discretion to grant asylum to refugees. 8
U.S.C. § 1158(b)(1). A refugee is a person who is outside of his or her country
and is unable or unwilling to return “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). “The
applicant may qualify as a refugee either because he or she has suffered past
persecution or because he or she has a well-founded fear of future persecution.”
8 C.F.R. § 208.13(b).
      Ixchop fails to advance a cogent argument relative to past persecution.
Because Ixchop did not argue to the BIA that he suffered past persecution
because of his political opinion, this court lacks jurisdiction to review his
argument regarding the same in the instant appeal. See Goonsuwan v. Ashcroft,
252 F.3d 383, 385-86 (5th Cir. 2001); Wang v. Ashcroft, 260 F.3d 448, 453 (5th
Cir. 2001). Ixchop’s hearing testimony directly contradicts his assertion that he
suffered past persecution at the hands of the guerrillas because he is Mayan.
See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992).
      Because Ixchop did not prove past persecution, he is not entitled to a
presumption of a fear of future persecution. Cf. 8 C.F.R. § 208.13(b)(1). Further,
because Ixchop did not argue to the BIA that he feared future persecution based
on his political opinion, this court will not review whether political opinion
serves as a basis for his feared future persecution. See Wang, 260 F.3d at 453.

                                        2
                                  No. 07-60146

To the extent that Ixchop bases his feared persecution on his ethnicity, his
arguments are unavailing. The affidavits on which Ixchop relies do not state
why his cousin was killed. Moreover, articles on which Ixchop relied at his
removal hearing describe killings of Mayans that were alleged to have happened
more than 20 years ago. Nor does the State Department’s country report on
Guatemala support his claims. Thus, Ixchop fails to present evidence of a
pattern or practice of persecution to which he would be subject as a Mayan upon
his return to Guatemala. Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005).
      Ixchop’s failure to establish eligibility for asylum is dispositive of whether
he is entitled to withholding of removal. See Eduard v. Ashcroft, 379 F.3d 182,
186 n.2 (5th Cir. 2004).
      Ixchop fails to establish that he is entitled to relief under the CAT because
he presents no evidence that the alleged torture he suffered at the hands of the
guerrillas was with the acquiescence of the Guatemalan government or that he
is likely to be tortured by the Guatemalan government on his return. See 8
C.F.R. §§ 208.18(a)(1); 1208.16(c)(3)(i)-(iv); Ontunez-Tursios v. Ashcroft, 303 F.3d
341, 354 (5th Cir. 2002).
      Ixchop does not brief his entitlement to cancellation of removal under
NACARA based on hardship. That argument is therefore deemed abandoned.
See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). Because cancellation
of removal under the IIRIRA is discretionary, this court lacks jurisdiction to
review the denial of Ixchop’s application under those provisions. 8 U.S.C.
§§ 1229b, 1252(a)(2)(B); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004).
Ixchop’s attempt to overcome this jurisdictional bar by arguing that the IJ and
BIA’s failure to account “for all factors” before deporting him violates due process
is a transparent attempt to overcome the jurisdictional bar.
      Ixchop’s argument that the BIA’s summary adoption of the IJ’s decision
violated due process is without merit. See Soajede, 324 F.3d at 832-33. Ixchop’s
invocation of the Equal Protection Clause to obtain judicial review of the denial

                                         3
                                No. 07-60146

of his application for cancellation of removal is unavailing because he did not
present an equal protection claim to the BIA. See Goonsuwan, 252 F.3d at 385;
Wang, 260 F.3d at 453.
      AFFIRMED.




                                      4
