FILED

NOT FOR PUBLICATION

JUN 19 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

INGRI YAMILETH CANAS-MELENDEZ; No. 17-73487

ASHLY MICHELL AGUILAR-CANAS,

Agency Nos. A202-078-835 Petitioners, A202-078-834

v.

MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted June 5, 2020** Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,*** District Judge.

* 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 Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Ingri Yamileth Canas-Melendez, a citizen of El Salvador, petitions for review

of an order of the Board of Immigration Appeals (“BIA”) dismissing her appeal from

an immigration judge’s (“IJ”) denial of her application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”).1 We have

jurisdiction under section 242(a)(1) of the Immigration and Nationality Act (“INA”),

8 U.S.C. § 1252(a)(1). We review the BIA’s legal conclusions de novo and its factual

findings for substantial evidence. Molina-Estrada v. I.N.S., 293 F.3d 1089, 1093 (9th

Cir. 2002); I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Where, as here, “the

BIA’s analysis on the relevant issues is confined to a simple statement of a

conclusion, we also look to the IJ’s oral decision as a guide to what lay behind the

BIA’s conclusion.” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010) (internal

quotation marks and citation omitted).

1. To establish eligibility for a discretionary grant of asylum, an alien must

demonstrate that she has suffered past persecution or has “a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Canas-Melendez claims

persecution as a member of the particular social group defined as “Salvadoran

women unable to leave an abusive domestic relationship.” But even assuming that

1 Canaz-Melendez’s daughter Ashly also applied for relief, but her application is derivative. See 8 U.S.C. § 1158(b)(3)(A).

2 17-73487 her proposed group was cognizable under the INA, an issue which we do not resolve,

substantial evidence supports the conclusion that Canas-Melendez failed to establish

her membership in that putative social group because she failed to establish that she

was unable to leave her abusive domestic relationship.

The IJ acknowledged Canas-Melendez’s testimony that her partner, Jose, once

threatened to harm her or her family if she tried to leave him. But the IJ noted that

for three years, neither Canas-Melendez nor her parents asked him to leave or ever

called the police or sought other assistance. The IJ noted that, when her parents

finally did ask him to leave, “he apparently had no problems with leaving her or her

family’s home.” The IJ found that this showed that “quite possibly had either she or

her parents asked Jose to leave the house at any time, he would have done so.”

Moreover, Canas-Melendez continued to live with her parents for another seven

months and never was abused by—or even had personal contact with—Jose during

that time. Indeed, the record supports the finding that Canas-Melendez had been out

of her “abusive domestic relationship” for many months before her departure for the

United States.

2. Canas-Melendez’s failure to raise her CAT claim before the BIA

constitutes a failure to exhaust administrative remedies, depriving this Court of

jurisdiction to address this issue in her petition for review. E.g., Cordon-Garcia v.

I.N.S., 204 F.3d 985, 988 (9th Cir. 2000). Even assuming Canas-Melendez had

3 17-73487 properly raised her CAT claim before the BIA, substantial evidence supports the IJ’s

finding that Canas-Melendez had not shown “it is more likely than not that [she]

would be tortured if removed to” El Salvador. 8 C.F.R. § 1208.16(c)(2). Canas-

Melendez’s past experiences do not amount to torture, which is an “extreme form of

cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or

degrading treatment.” 8 C.F.R. 1208.18(a)(2). Moreover, Canas-Melendez has not

alleged that Jose or anyone else would seek to torture her on her return to El

Salvador. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per curiam)

(petitioner must demonstrate a “particularized threat of torture”). Although Canas-

Melendez argues that the Salvadorian government has been generally ineffective in

preventing violence against women, a government “does not acquiesce in the torture

of its citizens merely because it is aware of torture but powerless to stop it.” Garcia-

Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (citation omitted).

PETITION DENIED.

4 17-73487