Macario Melendez v. Atty Gen USA ( 2012 )

NOT PRECEDENTIAL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
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Farabundo Marti National Liberation Front
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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.
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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
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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.
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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”).
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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.
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