Jose Melgar-Rodriguez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE MANUEL MELGAR-RODRIGUEZ, No. 15-73268
Petitioner, Agency No. A206-847-161
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Jose Manuel Melgar-Rodriguez, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
review factual findings for substantial evidence. Zehatye v. Gonzales, 453 F.3d
1182, 1184-85 (9th Cir. 2006). We review de novo questions of law. Cerezo v.
Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008). We deny in part and dismiss in
part the petition for review.
Substantial evidence supports the determination that Melgar-Rodriguez
failed to establish the harm he experienced or fears in El Salvador was or would be
on account of a protected ground, including a political opinion or a particular
social group. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if
membership in a particular social group is established, an applicant must still show
that “persecution was or will be on account of his membership in such group”);
Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s “desire to be
free from harassment by criminals motivated by theft or random violence by gang
members bears no nexus to a protected ground”). Thus, Melgar-Rodriguez’s
asylum and withholding of removal claims fail.
We lack jurisdiction to consider Melgar-Rodriguez’s contention as to a
pattern or practice of persecution because he did not raise it to the IJ or the BIA.
See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks
jurisdiction to review claims not presented below).
The BIA did not err in declining to consider Melgar-Rodriguez’s arguments
regarding proposed social groups that he raised for the first time to the BIA. See
2 15-73268
Honcharov v. Barr, 924 F.3d 1293, 1297 (9th Cir. 2019) (BIA did not err in
declining to consider proposed social groups raised for the first time on appeal).
The BIA also did not err in concluding that Melgar-Rodriguez failed to raise
religion as an independent protected ground before the IJ. See Matter of J-Y-C-, 24
I. & N. Dec. 260, 261 n.1 (BIA 2007) (basis for asylum claim not raised to the IJ).
We reject Melgar-Rodriguez’s contentions that the BIA failed to adequately
address his arguments or explain its reasoning. See Honcharov, 924 F.3d at 1296
n.2 (“[T]he Board may address an argument by applying its default rules and
explaining that it will not reach the merits[.]”).
Substantial evidence also supports the denial of CAT relief because Melgar-
Rodriguez failed to show it is more likely than not he would be tortured by or with
the consent or acquiescence of the government if returned to El Salvador. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
As stated in the court’s January 12, 2016 order, the temporary stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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