NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 27 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE MENJIVAR-MELGAR, No. 09-73498
Petitioner, Agency No. A098-408-561
v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 5, 2013
San Francisco, California
Before: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.
Petitioner Jose Fernando Menjivar-Melgar (“Menjivar-Melgar”) petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) denying his
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. §
1252. We deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Menjivar-Melgar’s application for asylum was not timely because it was
filed more than one year after his arrival in the United States. See 8 U.S.C. §
1158(a)(2)(B). Failure to comply with the one-year requirement may be excused
where the petitioner demonstrates “extraordinary circumstances relating to the
delay” or “the existence of changed circumstances which materially affect the
applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D). Ineffective assistance of
counsel may, in certain situations, constitute “extraordinary circumstances.” See 8
C.F.R. § 1208.4(a)(5)(iii).
Menjivar-Melgar argues that the BIA failed to consider the ineffective
assistance of counsel he received when it declined to excuse his failure to comply
with the one-year bar. He further argues that the Immigration Judge (“IJ”) failed to
articulate a sufficient legal basis for rejecting his claim of changed circumstances
based on his new status as a step-father of U.S. citizen children. We have
jurisdiction to consider Menjivar-Melgar’s arguments because they turn on
undisputed facts—namely, his failure to satisfy the factors from Matter of Lozada,
19 I. & N. Dec. 637 (B.I.A. 1988), codified at 8 C.F.R. § 1208.4(a)(5)(iii)(A)–(C),
and his new parental role. See Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir.
2013) (holding that this court had jurisdiction to review the BIA’s determination
regarding the changed-circumstances exception because the ruling turned on
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undisputed facts); Tamang v. Holder, 598 F.3d 1083, 1089 (9th Cir. 2010)
(holding that this court had jurisdiction to review the petitioner’s claim of
ineffective assistance of counsel because the claim involved a mixed question of
law and fact and the relevant facts were undisputed).1
Substantial evidence supports the BIA’s rejection of these two claims. On
his claim of ineffective assistance of counsel, Menjivar-Melgar’s failure to satisfy
the Matter of Lozada factors rendered it nearly “impossible to determine whether
[his] ineffective assistance of counsel claim [had] merit.” Tamang, 598 F.3d at
1090. Moreover, Menjivar-Melgar suggested during his removal proceedings that
he failed to file for asylum within the one-year deadline because he believed that
“no one would listen to [him],” and thus did not pursue asylum “until [he] got
arrested.” These statements belie his claim of “extraordinary circumstances
relating to [his] delay.” See 8 U.S.C. § 1158(a)(2)(D). On his claim of changed
circumstances, even if the IJ failed to identify specifically a case supporting his
1
We find that Menjivar-Melgar sufficiently exhausted his claim of
ineffective assistance of counsel before the BIA. Menjivar-Melgar’s brief to the
BIA specifically discussed his alleged consultation with an attorney and a
community-based legal resource center, and, in both instances, he was given no
information regarding asylum. See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th
Cir. 2008) (noting that exhaustion only requires a petitioner to put the BIA on
notice as to specific issues such that the agency had an opportunity to pass on those
issues).
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conclusion that the birth of a child constitutes merely a change in personal
circumstances, the IJ’s judgment nonetheless finds support in our case law. See He
v. Gonzales, 501 F.3d 1128, 1132 (9th Cir. 2007) (holding that “the birth of
children outside the country of origin is a change in personal circumstances that is
not sufficient to establish changed circumstances in the country of origin” for
purposes of excusing a failure to file a motion to reopen within the required ninety-
day deadline).
2. The record does not compel the conclusion that Menjivar-Melgar is
entitled to withholding of removal. To qualify for withholding of removal,
Menjivar-Melgar must show that there is a clear probability that he will be
persecuted upon removal to El Salvador “on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 C.F.R. §
1208.16(b); see also El Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004).
Substantial evidence supports the BIA’s finding that the incidents described by
Menjivar-Melgar did not rise to the level of past persecution. Menjivar-Melgar
discussed how his family members in El Salvador were threatened, but none of
them were ever physically harmed. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.
2000) (“Our court generally treats unfulfilled threats, without more, as within that
category of conduct indicative of a danger of future persecution, rather than as past
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persecution itself.”); Hoxha v. Ashcroft, 319 F.3d 1179, 1181–82 (9th Cir. 2003)
(unfulfilled threats made to an ethnic Albanian by various Serbs and a single,
possibly unrelated incident of beating did not amount to past persecution).
Further, the BIA did not err in finding that Menjivar-Melgar’s proposed
group of deportees from the United States perceived to be wealthy was not a
cognizable social group because it lacked social visibility. Menjivar-Melgar
presented no evidence that members of the society or gangs in El Salvador
perceive or recognize this population as a social group. See Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1088–89 (9th Cir. 2013) (en banc) (explaining that “social
visibility” requires that the shared characteristic be recognizable by members of the
community or that members of the group be perceived as a group by society).
Even assuming that Menjivar-Melgar’s alternative proposed group of
“family related to former military members” is a cognizable social group, the
continuing safety of similarly-situated members of Menjivar-Melgar’s family who
have remained in El Salvador substantially undercuts his claim that he will likely
face persecution upon removal. See Santos-Lemus v. Mukasey, 542 F.3d 738,
743–44 (9th Cir. 2008), overruled on other grounds by Henriquez-Rivas, 707 F.3d
at 1093. Dr. Cordoba’s expert testimony regarding “deferred vengeance” does not
compel a contrary conclusion. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1
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(1992) (“To reverse the BIA[’s] finding we must find that the evidence not only
supports that conclusion, but compels it . . . .” (emphasis in original)).
3. The record does not compel the conclusion that Menjivar-Melgar is
entitled to relief under CAT. Dr. Cordova’s report regarding the inadequacy of the
Salvadoran judicial system and corruption within the National Civilian Police does
not compel the conclusion that a Salvadoran government official or person acting
in an official capacity would acquiesce in the torture of Menjivar-Melgar or his
family at the hands of former guerillas or gang members. See Cole v. Holder, 659
F.3d 762, 771 (9th Cir. 2011) (explaining that “acquiescence” requires that the
government be aware of the torture but continues to be willfully blind to it or
simply stands by due to its inability or unwillingness to oppose it).
PETITION DENIED.
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