FILED
NOT FOR PUBLICATION
APR 13 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YAJAIRA GUADALUPE MELENDEZ No. 18-71507
MORALES,
Agency No. A213-087-239
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
YAJAIRA MARICEL MELENDEZ No. 18-71512
MORALES,
Agency No. A213-087-240
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted April 9, 2021**
Pasadena, California
Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.
Yajaira Guadalupe Melendez Morales (“Guadalupe”) and Yajaira Maricel
Melendez Morales (“Maricel”) petition for review of a decision by the Board of
Immigration Appeals (“BIA”) holding that they are ineligible for asylum,
withholding, and relief under the Convention Against Torture (“CAT”). We grant
the petition and remand.
Petitioners are twenty-three-year-old twin sisters from El Salvador. From
January to May 2017, they encountered persistent physical and sexual harassment
from members of Mara 18 (the 18th Street Gang), which controlled the area where
they attended school. Gang members would follow them home, make rude sexual
comments, and touch them. They told Maricel that they would have sex from
behind and she would ask for it again. One tried to touch Guadalupe all over her
body. Another sexually assaulted Maricel at gunpoint on her way home from
school, forcing his hand in her underwear. A family friend overheard these gang
members saying that they were tired of the petitioners’ resistance and that “if
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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[they] weren’t going to be theirs [then] [they] would not be anybody’s.” That
night, three men knocked loudly on their door and said it was time “to find out
what it was like to be with a real man.” Petitioners did not go to the police because
the gangs would have found out and “really hurt” them.
The IJ found that the petitioners were credible and did not require
corroboration. However, the IJ denied their asylum, withholding, and CAT claims.
The IJ found that their proposed social groups—(1) young Salvadoran women
living in El Salvador, and (2) young Salvadoran women viewed as property and
unwilling to enter into a forced sexual and domestic relationship—were
insufficiently socially distinct to be cognizable, and even if they were, there was no
nexus between those groups and the harm petitioners suffered or feared. The IJ
also denied the withholding and CAT claims.
The BIA affirmed on different grounds. It assumed that these particular
social groups were cognizable, but held that petitioners did not meet their burden
of proof as to fear of persecution. The BIA highlighted that (1) petitioners’
grandmother did not corroborate their story, (2) their expert on conditions in El
Salvador had not met them personally, and (3) they had aged out of danger because
they were now 20 years old, and most sexual violence was experienced by teenage
girls. The BIA also held that petitioners had not established that the government
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was unable or unwilling to protect them, that relocation would be unreasonable, or
that they were eligible for CAT relief.
A timely petition for review followed. The Government’s motion for a
remand was denied by a motions panel.
This court reviews the BIA’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). A finding is supported by substantial evidence
unless “‘any reasonable adjudicator would be compelled to conclude to the
contrary’ based on the evidence in the record.” Id. (quoting 8 U.S.C.
§ 1252(b)(4)(B)).
The Government admits that the BIA erred in failing to address “whether the
sisters’ targeted mistreatment at the hands of the gang rose to the level of [past]
persecution,” which made it impossible to determine whether to apply a rebuttable
presumption as to future persecution. See 8 C.F.R. § 1208.13(b)(1)(i)-(ii). The
Government requests that on remand the BIA be allowed to “consider any other
issues it deems relevant or dispositive.” We agree that remand is appropriate.
We note additional errors by the BIA not specifically noted by the
government. First, the BIA erred in concluding that petitioners needed
corroboration by their grandmother. The IJ found petitioners credible and did not
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ask for corroboration. Ren v. Holder, 648 F.3d 1079, 1091 (9th Cir. 2011).
Second, the BIA erred in discounting the petitioners’ expert witness on violence
against Salvadoran women. An expert does not need personal knowledge of the
petitioners to opine in her area of expertise. See, e.g., Hamoui v. Ashcroft, 389
F.3d 821, 828 (9th Cir. 2004). Third, the BIA erred in concluding that petitioners
would not be targeted because they were no longer teenagers. This conclusion is
implausible on its face, and the record confirms that young women older than 20
face considerable violence. (Both proposed social groups are “young women.”)
The BIA’s conclusion that petitioners aged out of danger is not supported by
substantial evidence. See 8 U.S.C. § 1252(b)(4)(B). Fourth, the BIA erred in
discounting evidence concerning “domestic violence” on the ground that the
petitioners were not in domestic relationships. This evidence is relevant to the
likelihood of future persecution because the petitioners fear that they will be forced
into a domestic relationship in which they will experience violence.
The BIA also failed to engage with “all relevant evidence in the record.”
See Bringas-Rodriguez, 850 F.3d at 1069. The BIA did not consider evidence of
whether the government was “able” to protect petitioners. While a judicial
initiative addressing violence against women can show the government is willing
to protect petitioners, it does not necessarily show that it is able to do so. Cf. Vitug
5
v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013). Further, the BIA’s analysis of
whether the petitioners would be able to reasonably relocate failed to examine the
whole record and the “totality of the relevant circumstances” as required by 8
C.F.R. § 1208.13(b)(3). El Salvador is a small country and gangs are pervasive.
Finally, the BIA erroneously assumed that CAT relief was foreclosed by its denial
of the asylum claim. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
The BIA also ignored parts of the record in addressing the CAT claim. 8 C.F.R.
§ 1208.16(c)(3) (“[A]ll evidence relevant to the possibility of future torture shall be
considered.”). For example, the petitioners’ expert witness stated that gang
members have infiltrated the police at all levels.
Petition for review GRANTED and REMANDED.
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