Macario Melendez v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: May 23, 2012
• Docket: 11-3877
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 11-3877 ___________

MACARIO MELENDEZ, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A097-702-432 ) Immigration Judge: Honorable Charles M. Honeyman ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) May 16, 2012

Before: FUENTES, JORDAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: May 23, 2012) ___________

OPINION ___________

PER CURIAM

Petitioner Macario Melendez, a native of El Salvador, seeks review of a final order

of removal. For the reasons that follow, we will deny the petition for review. I.

Macario Melendez entered the United States in July 2000 on a tourist visa and

failed to depart before his visa expired. After the Department of Homeland Security

(“DHS”) commenced removal proceedings in 2007, Melendez initially applied for

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”). In October 2007, Melendez withdrew his application for asylum and requested

voluntary departure in the alternative.

After multiple continuances and two motions to reopen, Melendez appeared before

the immigration judge (“IJ”) for a hearing in January 2010. Melendez presented evidence

that he started a business in El Salvador in 1992 distributing construction and building

materials. Around the year 2000, he become the victim of harassment from members of

the Mara 18 gang, who stole supplies and defaced his property. He received an

anonymous note demanding money and threatening his family if he reported it to the

police. Approximately one month after receiving the note, as he drove home from an

FMLN1 political meeting, he was stopped by armed men who demanded $40,000. He

testified that the men gave him until the next day to get the money, and threatened him

and his family. Melendez decided to leave the country because he could not pay the

money and because there was nowhere in his country where he could go to escape the

Maras. His son was also assaulted and targeted for recruitment by the Maras three or

1 Farabundo Marti National Liberation Front 2 four years after Melendez left the country. Melendez testified that he fears the Maras if

he is returned to El Salvador.

The Immigration Judge (“IJ”) marked into evidence Melendez’s asylum

application and supporting documentation, but noted that Melendez had not filed the

asylum application within one year of arriving in the United States. The IJ assumed

Melendez’s testimony was credible, but nevertheless denied relief, finding that Melendez

failed to show that the abuse he suffered was on account of his political opinion or

membership in a particular social group. In particular, the IJ found that the record did

not support his claim that he was targeted because of his membership in the FMLN. The

IJ also determined that his small business ownership did not make him part of a

“particular social group,” and that the record showed that the Maras’ motivation was

purely financial. Additionally, the IJ noted that Melendez failed to provide any evidence

to corroborate his story—including any evidence of his business ownership or FMLN

membership, evidence that the Maras knew he was a business owner, or affidavits

supporting his story of harassment—and did not testify that such evidence was

impossible to obtain. Finally, the IJ determined there was no connection between

Melendez’s son’s attack and the harassment Melendez suffered. The IJ concluded that

Melendez failed to meet the burden of proof for withholding of removal or CAT relief,

and granted his application for voluntary departure.

3 In September 2011, the Board of Immigration Appeals (“BIA”) dismissed

Melendez’s appeal. Melendez filed a timely petition for review. We will deny the

petition.

II.

To the extent Melendez sought asylum relief, we lack jurisdiction under 8 U.S.C.

§ 1158(a)(3) to review the denial of his asylum application as untimely. We do, however,

retain jurisdiction to consider the denial of his applications for withholding of removal

and protection under the CAT. Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir.

2003). Because the BIA issued its own opinion, we review its decision rather than that of

the IJ. See Li v. Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we also look to

the decision of the IJ to the extent that the BIA deferred to or adopted the IJ’s reasoning.

See Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review factual

findings for substantial evidence, see Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d

Cir. 2007), upholding them “unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d

228, 249 (3d Cir. 2003) (en banc).

III.

To qualify for withholding of removal, an alien must establish that it is more likely

than not that his “life or freedom would be threatened in th[e] country [of removal]

because of the alien’s race, religion, nationality, membership in a political group or

political opinion.” 8 U.S.C. § 1231(b)(3)(A); Tarrawally, 338 F.3d at 186. To be eligible 4 for CAT relief, an alien must show that it is more likely than not that he will be tortured if

removed to the country in question by or at the instigation of, or with the consent or

acquiescence of, a public official. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1); Silva-

Rengifo v. Att’y Gen., 473 F.3d 58, 64-65 (3d Cir. 2007).

The IJ and BIA concluded that Melendez failed to show the requisite nexus

between the threats he experienced and his political opinion or social group. The only

detail in the record relating to Melendez’s political activities is the fact that the Maras

stopped him on his way home from an FMLN meeting. His testimony was only that they

demanded money and threatened him and his family, not that their message to him

related to his political opinion or associations. The note he received also demanded

money and threatened him, but said nothing about his political activities. Thus,

substantial evidence supports the IJ’s and BIA’s conclusion that Melendez failed to show

that the Maras targeted him for any reason other than a “bare desire for money.” See

Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007).

Melendez argues that the IJ and BIA erred in finding that he was not a member of

a particular social group, and relies on Valdiviezo-Galdamez v. Att’y Gen., 663 F.3d 582

(3d Cir. 2011). In that case, we held that BIA opinions defining a “particular social

groups” in terms of “social visibility” and “particularity” were inconsistent with prior

BIA opinions and were not entitled to Chevron deference. Id. at 608-09. In this case, the

BIA did not have the benefit of Valdiviezo-Galdamez, and it rejected Melendez’s

purported social group using the social visibility and particularity grounds. 5 However, as the government argues, in affirming the IJ, the BIA primarily relied

on the finding that Melendez had failed to establish a nexus to a protected ground. The IJ

and BIA both concluded that the people who threatened and attempted to extort money

from Melendez did so with a criminal purpose for financial gain. Melendez was unable

to prove or explain how the Maras knew he owned a business. Additionally, he has not

challenged the IJ’s and BIA’s finding that he failed to substantiate the abuse, or even the

existence of his business and property ownership. Accordingly, we hold the BIA’s

conclusion to be reasonable, and any error in its analysis of Melendez’s social group

claim is not determinative. See Ndayshimiye v. Att’y Gen., 557 F.3d 124, 134 (3d Cir.

2009) (affirming BIA despite its failure to consider a “social group” claim where BIA

properly concluded that the social group background played no central role in

persecution).2

Finally, Melendez argues that Mara gang violence is widespread in El Salvador,

and asserts that they target business owners for extortion. He claims that the prevalence

of such activity constitutes a pattern or practice of persecution, and that it is more likely

than not that he will be persecuted if removed to El Salvador. If an alien cannot

demonstrate past persecution, he can still be eligible for withholding of removal by

2 We note that other circuits have declined to label business owners as “particular social groups.” See, e.g., Khozhaynova v. Holder, 641 F.3d 187, 195 (6th Cir. 2011) (business owners who refuse to pay protection money to mafia do not constitute a social group); Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th Cir. 2005) (business owners in Colombia who resist narco-traffickers’ demands is too broad to qualify as “particularized”). 6 demonstrating that there is a pattern or practice of persecution of a group of similarly

situated persons in that country. See 8 C.F.R. § 1208.16(b)(2)(i); Sukwanputra v.

Gonzales, 434 F.3d 627, 637 (3d Cir. 2006). The BIA reasonably rejected this claim,

given that Melendez failed to connect the Maras’ actions against him to his status as a

business owner.

We agree that Melendez failed to prove that it was more likely than not that his

life or freedom would be threatened on account of one of the protected grounds. Given

these facts, substantial evidence supports the IJ’s and BIA’s determination that Melendez

does not qualify for withholding of removal, and nothing in the record supports his claim

for CAT protection. Accordingly, we will deny the petition for review.