Melendez-Landaverde v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 30, 2025
• Docket: 24-1517
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARBELYN MELENDEZ- No. 24-1517 LANDAVERDE; ISAIAS MARAVILLA- Agency Nos. LANDAVERDE; ERNESTO GUERRERO- A220-204-263 MELENDEZ; EDWIN GUERRERO- A220-204-262 MONTAVO, A220-205-069 A220-205-073 Petitioners,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Argued and Submitted April 3, 2025 San Francisco, California

Before: HURWITZ, KOH, and JOHNSTONE, Circuit Judges.

Marbelyn Melendez-Landaverde, her husband, Edwin Guerrero-Montavo,

and their sons, Isaias Maravilla-Landaverde and Ernesto Guerrero-Melendez, 1

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 The husband’s and wife’s immigration court proceedings (which each claimed one son as a derivative beneficiary) were initially separate but later consolidated. natives and citizens of El Salvador, petition for review of a decision by the Board of

Immigration Appeals (“BIA”) dismissing an appeal from an order of an Immigration

Judge (“IJ”) denying asylum, humanitarian asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). When, as here, the BIA

affirms the IJ’s decision citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994),

and adds its own reasoning, we review both decisions. See Gonzalez-Castillo v.

Garland, 47 F.4th 971, 976 (9th Cir. 2022). We examine the agency’s “legal

conclusions de novo and its factual findings for substantial evidence.” Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (cleaned up).

Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petitions for review.

1. Substantial evidence supports the agency’s conclusion that Melendez

had not established that the government of El Salvador would be unwilling or unable

to protect her if removed. 2 When Melendez first reported abuse by her uncle, a

Melendez then filed an updated I-589 application claiming Edwin and her sons as derivative beneficiaries. 2 The key inquiry “is whether the government both could and would provide protection.” J.R. v. Barr, 975 F.3d 778, 783 (9th Cir. 2020) (cleaned up). Melendez contends that, despite citing J.R., the IJ applied the wrong standard, instead requiring her to prove the government’s “complete helplessness or unwillingness.” However, Melendez did not exhaust this argument below. See Suate-Orellana v. Garland, 101 F.4th 624, 629 (9th Cir. 2024) (“A court must enforce the [exhaustion requirement] if a party properly raises it.”) (cleaned up). And in any event, the BIA expressly applied the correct “could and would” standard.

2 24-1517 Justice of the Peace (“JOP”) hearing was scheduled only three days later.

Melendez’s uncle was found guilty of domestic violence, warned of criminal

penalties should his behavior continue, and placed under a restraining order.

Although Melendez characterizes the restraining order as insufficient, her uncle

never sought her out again.

The record also indicates that police prepared a report in response to

Melendez’s report of gang threats and promised to investigate and patrol the area

near her business. Although Melendez claims that she never saw police patrolling,

she never followed up with them, and fled El Salvador about a month after making

the report. And even if the police’s response was lacking, “the standard is not that

the government can prevent all risk of harm.” Hussain v. Rosen, 985 F.3d 634, 648

(9th Cir. 2021).

Melendez also argues the agency overlooked country conditions evidence

about how violence against women is ignored in El Salvador and how police turn a

blind eye to gang activity. But both the BIA and the IJ stated they considered all

evidence, and the IJ specifically acknowledged that El Salvador is “beset by gang

violence,” it “may not perfectly enforce its laws and must continue to make strides

to improve,” and that “the reports regarding high rates of impunity are troubling.”

The agency was not required to specifically discuss the generalized evidence

Melendez cites, see Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011), given the

3 24-1517 individualized evidence regarding the government’s response to her complaints.

Thus, the “agency did not misstate or ignore [Melendez’s] evidence; it simply

reached a different conclusion. And that conclusion was supported by substantial

evidence.” Hernandez v. Garland, 52 F.4th 757, 772 (9th Cir. 2022).3

2. Even assuming that Melendez suffered past torture, the agency’s

finding that it was not probable that Melendez would be tortured in the future by or

with the acquiescence of the government is supported by substantial evidence. See

B.R. v. Garland, 26 F.4th 827, 844 (9th Cir. 2022). Every time Melendez sought

protection from the government, she was met with a swift response. After the JOP

proceedings, Melendez’s uncle never sought her out again. And with respect to the

gang’s threats, even though the police’s actions may not “have not achieved the

desired goals of resolving crimes and protecting citizens, they support the BIA’s

determination that the government is not wilfully blind.” Garcia-Milian v. Holder,

755 F.3d 1026, 1035 (9th Cir. 2014). The country conditions evidence discussing

corruption does not compel a contrary conclusion. See B.R., 26 F.4th at 845 (noting

that generalized country conditions reports that mentioned that “corrupt officials

3 Melendez did not exhaust her argument that the agency erred by failing to consider her husband’s independent claims. In any event, when Melendez moved to consolidate her case with her husband’s, she stated that he “has no claim for relief independent from his partner,” her pre-hearing brief did not articulate any independent claims on his behalf, and the BIA acknowledged that her husband filed a separate application “based on the same facts.”

4 24-1517 may turn a blind eye to cartel activity,” though “troubling”, “do not prove that the

Mexican government would acquiesce in the torture of its citizens at the hands of

cartels”).

PETITIONS FOR REVIEW DENIED.4

4 Melendez’s motion for judicial notice, Dkt. 21, and the government’s motion to strike, Dkt. 25, are denied. The stay of removal, Dkt. 14, shall dissolve on the issuance of the mandate.

5 24-1517