Ingri Canas-Melendez v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 19 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INGRI YAMILETH CANAS-MELENDEZ; No. 17-73487
ASHLY MICHELL AGUILAR-CANAS,
Agency Nos. A202-078-835
Petitioners, A202-078-834
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 5, 2020**
Pasadena, California
Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Ingri Yamileth Canas-Melendez, a citizen of El Salvador, petitions for review
of an order of the Board of Immigration Appeals (“BIA”) dismissing her appeal from
an immigration judge’s (“IJ”) denial of her application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”).1 We have
jurisdiction under section 242(a)(1) of the Immigration and Nationality Act (“INA”),
8 U.S.C. § 1252(a)(1). We review the BIA’s legal conclusions de novo and its factual
findings for substantial evidence. Molina-Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th
Cir. 2002); I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Where, as here, “the
BIA’s analysis on the relevant issues is confined to a simple statement of a
conclusion, we also look to the IJ’s oral decision as a guide to what lay behind the
BIA’s conclusion.” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (internal
quotation marks and citation omitted).
1. To establish eligibility for a discretionary grant of asylum, an alien must
demonstrate that she has suffered past persecution or has “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). Canas-Melendez claims
persecution as a member of the particular social group defined as “Salvadoran
women unable to leave an abusive domestic relationship.” But even assuming that
1
Canaz-Melendez’s daughter Ashly also applied for relief, but her application
is derivative. See 8 U.S.C. § 1158(b)(3)(A).
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her proposed group was cognizable under the INA, an issue which we do not resolve,
substantial evidence supports the conclusion that Canas-Melendez failed to establish
her membership in that putative social group because she failed to establish that she
was unable to leave her abusive domestic relationship.
The IJ acknowledged Canas-Melendez’s testimony that her partner, Jose, once
threatened to harm her or her family if she tried to leave him. But the IJ noted that
for three years, neither Canas-Melendez nor her parents asked him to leave or ever
called the police or sought other assistance. The IJ noted that, when her parents
finally did ask him to leave, “he apparently had no problems with leaving her or her
family’s home.” The IJ found that this showed that “quite possibly had either she or
her parents asked Jose to leave the house at any time, he would have done so.”
Moreover, Canas-Melendez continued to live with her parents for another seven
months and never was abused by—or even had personal contact with—Jose during
that time. Indeed, the record supports the finding that Canas-Melendez had been out
of her “abusive domestic relationship” for many months before her departure for the
United States.
2. Canas-Melendez’s failure to raise her CAT claim before the BIA
constitutes a failure to exhaust administrative remedies, depriving this Court of
jurisdiction to address this issue in her petition for review. E.g., Cordon-Garcia v.
I.N.S., 204 F.3d 985, 988 (9th Cir. 2000). Even assuming Canas-Melendez had
3 17-73487
properly raised her CAT claim before the BIA, substantial evidence supports the IJ’s
finding that Canas-Melendez had not shown “it is more likely than not that [she]
would be tortured if removed to” El Salvador. 8 C.F.R. § 1208.16(c)(2). Canas-
Melendez’s past experiences do not amount to torture, which is an “extreme form of
cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or
degrading treatment.” 8 C.F.R. 1208.18(a)(2). Moreover, Canas-Melendez has not
alleged that Jose or anyone else would seek to torture her on her return to El
Salvador. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per curiam)
(petitioner must demonstrate a “particularized threat of torture”). Although Canas-
Melendez argues that the Salvadorian government has been generally ineffective in
preventing violence against women, a government “does not acquiesce in the torture
of its citizens merely because it is aware of torture but powerless to stop it.” Garcia-
Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (citation omitted).
PETITION DENIED.
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