Manuel Melendez Hernandez v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 17-2330 ___________ MANUEL DE JESUS MELENDEZ HERNANDEZ, a/k/a Manuel De Jesus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. 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 1 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). 2 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 ...

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