FILED
NOT FOR PUBLICATION
OCT 30 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NERLY SARAI MELENDEZ- No. 17-72349
ESCALANTE,
Agency No. A206-449-481
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2019**
Seattle, Washington
Before: IKUTA and BENNETT, Circuit Judges, and DORSEY,*** District Judge.
Nerly Melendez-Escalante appeals the Board of Immigration Appeals (BIA)
order affirming the immigration court’s denial of eligibility for asylum,
*
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 Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
withholding of removal, and Convention Against Torture (CAT) protection. We
have jurisdiction under 8 U.S.C. § 1252(a)(1).1
The BIA did not err in affirming the immigration judge’s denial of
Melendez-Escalante’s applications for asylum and withholding of removal. The
record does not compel the conclusion that Honduran society would recognize
Melendez-Escalante as a member of either of her proposed particular social groups.
See 8 U.S.C. § 1252(b)(4)(B); Reyes v. Lynch, 842 F.3d 1125, 1131–32 (9th Cir.
2016). The IJ adequately addressed Melendez-Escalante’s second proposed
particular social group, “Honduran women who are viewed as property by their
domestic partner in an abusive relationship,” by finding that Honduran society
would not view Melendez-Escalante as a domestic partner. We reject Melendez-
Escalante’s argument that 8 U.S.C. § 1227(a)(2)(E)(i) establishes that all people
who share a child in common are in a domestic relationship. Because
§ 1227(a)(2)(E)(i) defines “crime of domestic violence” only for purposes of
deportation under federal law, it is not relevant to the issue before the IJ and BIA,
whether Honduran society would recognize Melendez-Escalante to be in a
1
We grant the Government’s motions to file a supplemental letter brief in
light of Matter of A-B-, 27 I. & N. Dec. 316 (U.S. Atty. Gen. 2018) (Doc. 21) and
to file a reply to Melendez-Escalante’s supplemental letter brief of August 1, 2018
(Doc. 25).
2
domestic partnership with the man who raped and kidnapped her. See Reyes, 842
F.3d at 1131–32.
Melendez-Escalante did not claim persecution on account of any other
protected ground. Therefore, the BIA did not err in concluding that Melendez-
Escalante was not persecuted on account of a protected ground as required for
asylum under 8 U.S.C. § 1158(b)(1)(A) and withholding of removal under 8
U.S.C. § 1231(b)(3). For the same reason, the BIA did not err by affirming the
immigration judge’s denial of humanitarian asylum. See 8 C.F.R.
§ 208.13(b)(1)(iii).
Matter of A-B-, published while this appeal was pending, does not make
remand necessary. 27 I. & N. Dec. 316. Melendez-Escalante could not establish
membership in a particular social group before Matter of A-B-, and she raises no
new arguments or grounds for asylum based on that decision. Thus, remand would
be futile.
The BIA also did not err in concluding that Melendez-Escalante failed to
establish eligibility for CAT protection because the evidence in the record does not
compel the conclusion that it is “more likely than not” that she will be tortured in
the country of removal. 8 C.F.R. § 1208.16(c)(2). The record lacks evidence that
compels the conclusion that the Honduran government acquiesced in the crimes
3
against her. She has not alleged that she was raped and kidnapped by a public
official or someone acting in an official capacity, and because she did not inform
the authorities about her rape or kidnapping, there is no evidence that the
government is unable or unwilling to investigate the crimes. Further, Melendez-
Escalante has not offered evidence compelling the conclusion that it is more likely
than not that officials will acquiesce in crimes against her if she returns to
Honduras.
AFFIRMED.
4