Fernandez-Melendez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 15, 2024
• Docket: 23-1465
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDREA CAROLINA FERNANDEZ- No. 23-1465 MELENDEZ, Agency No. A209-986-389 Petitioner, MEMORANDUM* v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 9, 2024** Pasadena, California

Before: NGUYEN and HURWITZ, Circuit Judges, and EZRA, District Judge.***

Andrea Carolina Fernandez-Melendez (“Fernandez-Melendez”) is a citizen

of El Salvador, who entered the United States without inspection in December

* 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 David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. 2016. Fernandez-Melendez petitions for review of the dismissal by the Board of

Immigration Appeals (“BIA”) of her appeal from the order of an immigration

judge (“IJ”) denying her claims for asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”). We have jurisdiction under 8

U.S.C. § 1252, and we deny the petition.

Our review is limited to those grounds explicitly relied upon by the BIA, and

thus the IJ’s reasoning is reviewed only to the extent that the BIA expressly adopts

it. Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016). We review legal

questions de novo and factual findings for substantial evidence. Ruiz-Colmenares

v. Garland, 25 F.4th 742, 748 (9th Cir. 2022). “Whether a group constitutes a

‘particular social group’ [(“PSG”)] is a question of law.” Pirir-Boc v. Holder, 750

F.3d 1077, 1081 (9th Cir. 2014).

1. Substantial evidence supports the agency finding that the proposed

PSGs—“single women in El Salvador who are defenseless” and “business owners

in El Salvador”—are not cognizable. Fernandez-Melendez did not provide any

evidence that society in El Salvador recognizes single women as a distinct social

group. Matter of W-G-R-, 26 I&N Dec. 208, 215–18 (BIA 2014); Matter of M-E-

V-G-, 26 I&N Dec. 227, 236–37, 244 (BIA 2014). And business ownership is not

an immutable characteristic. See Ochoa v. Gonzales, 406 F.3d 1166, 1170–71 (9th

Cir. 2005) (holding that “a social group comprised of business owners in

2 23-1465 Colombia” was not a cognizable PSG because members did not share an “innate

characteristic”), abrogated on other grounds by Henriquez-Rivas v. Holder, 707

F.3d 1081 (9th Cir. 2013) (en banc); Macedo Templos v. Wilkinson, 987 F.3d 877,

882–83 (9th Cir. 2021). In any event, substantial evidence supported the agency

finding that Fernandez-Melendez had not shown that any past or feared future

persecution had the requisite nexus to a protected ground. See 8 U.S.C.

§ 1158(b)(1)(B)(i).

2. The evidence does not compel the conclusion that Fernandez-Melendez

“will be tortured upon return to [her] homeland,” Benedicto v. Garland, 12 F.4th

1049, 1063 (9th Cir. 2021), “with the consent or acquiescence of a public official,”

Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014). The BIA affirmed

the IJ’s determination that there is not enough information to conclude that the

person who aided Fernandez-Melendez’s abusive partner escape police scrutiny

was a public official. The record does not compel a contrary conclusion. See

Hussain v. Rosen, 985 F.3d 634, 642 (9th Cir. 2021) (“‘The possibility of drawing

two inconsistent conclusions from the evidence does not prevent an administrative

agency’s finding from being supported by substantial evidence.’” (quoting Go v.

Holder, 640 F.3d 1047, 1054 (9th Cir. 2011))). Moreover, Fernandez-Melendez

never asserted that she is unable to relocate within El Salvador to escape the harm.

3 23-1465 Tzompantzi-Salazar v. Garland, 32 F.4th 696, 705 (9th Cir. 2022) (citing 8 C.F.R.

§ 1208.16(c)(3)).

PETITION DENIED.

4 23-1465