Roxana Melendez-Cordova v. Merrick Garland
20-71832
| 9th Cir. | Jul 13, 2021Background:
- Petitioner Roxana Melendez-Cordova, a Salvadoran national, experienced gang threats near her school on about five occasions before leaving for the U.S. in October 2016.
- The Immigration Judge (IJ) denied asylum, withholding of removal, and CAT relief; the Board of Immigration Appeals (BIA) affirmed and dismissed her appeal.
- Melendez claimed past persecution (repeated threats, emotional/psychological harm) and a well-founded fear of future persecution if returned.
- Record evidence showed no severe physical harm, no follow-through on threats, continued school attendance, and no gang attempts to find or contact her or her family after she left.
- She argued the IJ lacked jurisdiction under Pereira because her notice to appear (NTA) omitted the time/place (and court address); she also argued lack of address deprived jurisdiction.
- Review standards: de novo for legal issues and jurisdiction; substantial-evidence review for denials of asylum, withholding, and CAT relief.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Past persecution (asylum) | Threats and repeated confrontations caused persecution | Threats were isolated, non-physical, no follow-through | Substantial evidence supports no past persecution |
| Well-founded fear of future persecution | Subjective fear is genuine; country conditions support risk | No objective reasonable possibility; gang hasn't sought her or family | Substantial evidence: fear not objectively reasonable; asylum denied |
| Withholding of removal | Same facts satisfy higher "clear probability" standard | Fails because asylum standard not met | Denied: petitioner fails to show clear probability |
| CAT relief | Gang likely to torture her with official acquiescence | No evidence government would acquiesce or instigate torture | Denied: substantial evidence supports IJ |
| IJ jurisdiction under Pereira/NTA defects | NTA lacked time/place/address so IJ lacked jurisdiction | Pereira governs stop-time only; regulations control jurisdiction; NTA omissions do not strip jurisdiction | Denied: IJ had jurisdiction |
Key Cases Cited
- Reynoso-Cisneros v. Gonzales, 491 F.3d 1001 (9th Cir. 2007) (de novo review of legal questions and agency jurisdiction)
- Garcia-Milian v. Holder, 755 F.3d 1026 (9th Cir. 2014) (standard: substantial-evidence review of asylum/withholding/CAT denials)
- Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) (definition of refugee/well-founded fear framework)
- Li v. Ashcroft, 356 F.3d 1153 (9th Cir. 2004) (en banc) (persecution is an "extreme" concept)
- Duran-Rodriguez v. Barr, 918 F.3d 1025 (9th Cir. 2019) (threats alone do not necessarily compel past persecution)
- Rusak v. Holder, 734 F.3d 894 (9th Cir. 2013) (objective component requires credible, direct, specific evidence)
- Davila v. Barr, 968 F.3d 1136 (9th Cir. 2020) (withholding requires clear probability of persecution)
- Castillo v. Barr, 980 F.3d 1278 (9th Cir. 2020) (CAT requires torture more likely than not with official acquiescence)
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (interpreting §1229(a)(1) for stop-time rule)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (regulations—not time/place in NTA—govern immigration court jurisdiction)
- Aguilar Fermin v. Barr, 958 F.3d 887 (9th Cir. 2020) (NTA lacking court address does not deprive IJ of jurisdiction)
PETITION DENIED.