Manuel Melendez Hernandez v. Attorney General United State

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: VANASKIE, COWEN and NYGAARD, Circuit Judges. Total Pages: 8.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2330
___________
MANUEL DE JESUS MELENDEZ HERNANDEZ,
a/k/a Manuel De Jesus Melendez-Hernandez,
a/k/a Manuel De Jesus Melendez,
a/k/a Manuel D. Melendez, a/k/a Manuel De Jesus Hernandez,
a/k/a Manuel De Jesus Herna, a/k/a Rodrigo Alvarez,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A078-046-922)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 27, 2017
Before: VANASKIE, COWEN and NYGAARD, Circuit Judges
(Opinion filed: November 2, 2017)
___________
OPINION*
___________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PER CURIAM
Manuel de Jesus Melendez Hernandez (Melendez), a native and citizen of El
Salvador who is proceeding pro se, petitions for review of the Board of Immigration
Appeals’ (BIA) final order of removal. For the following reasons, we will grant the
petition for review in part, deny it in part, and remand to the BIA.
Melendez arrived in the United States in 1999. In 2001, he was ordered removed
from the United States because he failed to appear in Immigration Court. Later,
Melendez pleaded guilty to giving false information. He came to the attention of
immigration authorities after he was arrested for violating the terms of his probation. In
2006, Melendez was removed from the United States. He returned to the United States
most recently in 2015. In 2016, Melendez was arrested for possession of marijuana and
providing false information. The Government reinstated Melendez’s prior removal order
pursuant to 8 U.S.C. § 1231(a)(5). He sought withholding of removal under 8 U.S.C.
§ 1231(b)(3) and protection under the Convention Against Torture (CAT).1 See 8 C.F.R.
§§ 1241.8(e), 1208.31(e) (providing that an alien whose prior order of removal has been
reinstated may seek withholding of removal based on a reasonable fear of persecution or
torture). In his application, Melendez alleged that he would be physically harmed or
killed if removed to El Salvador because he formerly was a member of the MS-13 gang

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Melendez did not assert that he is eligible for asylum. In any event, we recently held
that aliens, like Melendez, subject to reinstated removal orders, are ineligible to apply for
asylum. Cazun v. Att’y Gen., 856 F.3d 249, 251 (3d Cir. 2017).
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and because the gang believes that he cooperated with the FBI.
An Immigration Judge denied relief and Melendez appealed. The BIA dismissed
the appeal. With respect to withholding under § 1231(b)(3), the Board concluded that
“former gang members” was not a cognizable social group and that, even if it was,
Melendez failed to establish that his membership in that group was a central reason for
the harm alleged.2 As to CAT protection, the BIA stated, inter alia, that Melendez’s fear
“that he could be tortured by MS-13 gang members and, in turn, a public official would
consent, acquiesce, or be willfully blind to such harm” was “based upon a speculative
chain of events.” Melendez filed a timely petition for review.3
For withholding of removal to a particular country, an applicant must establish by
a “clear probability” that his “life or freedom would be threatened” in the proposed
country of removal “because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” § 1231(b)(3); see also Tarrawally v.
Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003). When, as here, the withholding application

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The Board faulted Melendez for not identifying a protected ground that would serve as
the basis for his claims. We disagree with this assessment. Melendez’s application
explained that he “no longer wanted to be in a gang” and that gang members “will order
[his] murder” because they “believe that [he] is a snitch.” (Administrative Record (A.R.)
170).
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We have jurisdiction under 8 U.S.C. § 1252(a)(1). See Dinnall v. Gonzales, 421 F.3d
247, 251 n.6 (3d Cir. 2005) (exercising jurisdiction over petition for review of
reinstatement order “[b]ecause an order reinstating a prior removal order is ‘the
functional equivalent of a final order of removal’”) (quoting Arevalo v. Ashcroft, 344
F.3d 1, 9-10 (1st Cir. 2003)).
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is based on membership in a particular social group, “an applicant must establish both
that the group itself is properly cognizable as a ‘social group’ within the meaning of the
statute, and that his membership in the group is ‘one central reason’ why he was or will
be targeted for persecution.” Gonzalez-Posadas v. Att’y Gen., 781 F.3d 677, 684-85 (3d
Cir. 2015).
The BIA has explained that a “particular social group” must be “(1) composed of
members who share a common immutable characteristic, (2) defined with particularity,
and (3) socially distinct within the society in question.” In re M-E-V-G-, 26 I. & N. Dec.
227, 237 (BIA 2014). In explaining these requirements, the Board stated that “[s]ocial
group determinations are made on a case-by-case basis[,]” id. at 251, noted the “factspecific context of an applicant’s claim for relief[,]” id. at 241, and cautioned against “a
blanket rejection of all factual scenarios involving gangs.” Id. at 251. Here, however, the
Board concluded that former gang membership was not a cognizable particular social
group. But the Board did not discuss the three particular social group elements outlined
in M-E-V-G- or offer any substantive analysis in support of its conclusion. See Filja v.
Gonzales, 447 F.3d 241, 256 (3d Cir. 2006) (“[t]he BIA is not required to write an
exegesis on every contention. What is required is merely that it consider the issues
raised, and announce its decision in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely reacted.”). Notably, and
troublingly, in defining Melendez’s putative social group, the Board did not consider
whether Melendez’s perceived cooperation with law enforcement affected his claim. See
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Garcia v. Att’y Gen., 665 F.3d 496, 504 (3d Cir. 2011) (concluding that the petitioner,
who had testified against gang members, was a member of a particular social group, as
she had “the shared past experience of assisting law enforcement against violent gangs
that threaten communities in Guatemala” and that experience constituted “a characteristic
that members cannot change because it is based on past conduct that cannot be undone.”).
Because it is not our role to examine the attributes of Melendez’s putative social group in
the first instance, we will remand to the BIA for further explanation.4 See SerranoAlberto v. Att’y Gen., 859 F.3d 208, 212 n.2 (3d Cir. 2017) (observing that “[w]hether a
social group constitutes a PSG, and is thus cognizable under the … INA[,] … is a
continuously developing question of law and one that must be answered on a case-bycase basis.”).
The Board also stated that Melendez failed to establish that a “cognizable

We note that the IJ did “find[] that there is no evidence in the record of El Salvadoran
society viewing ‘former gang members’ as meaningfully distinguished from the rest of El
Salvadoran society.” (A.R. 38). Specifically, the IJ stated that “[e]ven if [Melendez’s
social group] were distinct from the perspective of the purposed persecutors here, …
there is no evidence to suggest that the group is viewed as meaningful[ly] distinct by
society in general.” (A.R. 38-39). But these conclusions were not specifically adopted
by the BIA, which simply stated – in a conclusory fashion – that there was no cognizable
social group in play. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003) (“only
if the BIA expressly adopts or defers to a finding of the IJ, will we review the decision of
the IJ.”). In any event, the IJ did not grapple with Melendez’s alleged cooperation with
the FBI either. Furthermore, we have not yet determined whether the BIA’s
interpretation of the term “particular social group” in M-E-V-G- (and in particular its
conclusion that “a group’s recognition for asylum purposes is determined by the
perception of the society in question, rather than by the perception of the persecutor”) is
entitled to Chevron deference.
4

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protected ground is a central reason for the claimed persecution.” (A.R. 2). “For a
protected characteristic to qualify as ‘one central reason,’ it must be an essential or
principal reason for the persecution; withholding of removal may not be granted when the
characteristic at issue ‘played only an incidental, tangential, or superficial role in
persecution.’” Gonzalez-Posadas, 781 F.3d at 685 (quoting Ndayshimiye v. Att’y Gen.,
557 F.3d 124, 130 (3d Cir. 2009)). Here, Melendez alleged that he will be targeted
because of his former membership in the MS-13 gang and because the gang believes that
he cooperated with the FBI. For instance, he testified that he joined the gang when he
was 18 years old and that, upon his return to El Salvador in 2006, he was recognized as a
former gang member because of his tattoos. (A.R. 80, 83). MS-13 members forced him
to rejoin the gang under threat of death. (A.R. 83). In 2014, Melendez “decided that [he]
didn’t want to be with [the gang] anymore” and was shot in the leg by MS-13 members
because he failed to attend a meeting. (A.R. 85). He returned to the United States in
2015, but the gang has continued to look for him in El Salvador. (A.R. 85-86). While in
immigration custody, FBI agents approached Melendez seeking information about the
location of another gang member. (A.R. 86-87). Another detainee discovered that
Melendez had spoken with the FBI, and reported Melendez to other MS-13 gang
members. (A.R. 87-88). Under these circumstances, we conclude that substantial
evidence does not support the Board’s conclusion that Melendez’s gang ties were not “at
least one central reason” for the harms he fears. See Oliva v. Lynch, 807 F.3d 53, 60 (4th
Cir. 2015) (“the BIA drew too fine a distinction between Oliva’s status as a former
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member of MS-13 and the threats to kill him for breaking the rules imposed on former
members.”).
We discern no error, however, in the BIA’s disposition of Melendez’s claim for
relief under the CAT. Substantial evidence supports the conclusion that Melendez did
not meet his burden of establishing that he is likely to be tortured “by or at the instigation
of or with the consent or acquiescence of” an El Salvadorian public official. 8 C.F.R.
§ 1208.16(c)(2); § 1208.18(a)(7); Sevoian v. Ashcroft, 290 F.3d 166, 174–75 (3d Cir.
2002). In support of the CAT claim, Melendez asserted that word of his alleged
cooperation with the FBI will make its way to current MS-13 members in El Salvador,
that those current members will recognize Melendez when he returns, and that public
officials will torture him or will acquiesce in torture inflicted on him by the gang
members. Although the record contains evidence of government corruption, police
brutality, and gang violence, as well as Melendez’s prior run-ins with the gang and the
police, we agree that Melendez failed to establish that each link in that hypothetical chain
of events is more likely than not to occur. See In re J-F-F-, 23 I. & N. Dec. 912, 918 &
n.4 (A.G. 2006). In particular, Melendez only speculates that officials will torture him or
will be willfully blind to his torture by MS-13 gang members. See Denis v. Att’y Gen.,
633 F.3d 201, 218 (3d Cir. 2011) (stating that alien’s “unsupported speculation” about
what he believed would happen to him if removed “does not rise to the level of proof
necessary to demonstrate that he will more likely than not be singled out for torture.”).
Accordingly, we are not compelled to overrule the BIA’s denial of relief under the CAT.
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See INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
For the foregoing reasons, we will grant the petition for review in part, deny it in
part, and remand the case for further proceedings consistent with this opinion. In
particular, we will deny the petition with respect to Melendez’s CAT claim, but will grant
the petition as to the withholding of removal claim and remand to the Board for further
explanation of its particular social group determination.

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