                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 27 2013

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JOSE MENJIVAR-MELGAR,                            No. 09-73498

              Petitioner,                        Agency No. A098-408-561

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, JR., Attorney General,

              Respondent.


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

                     Argued and Submitted November 5, 2013
                            San Francisco, California

Before: TASHIMA, W. FLETCHER, and NGUYEN, Circuit Judges.

       Petitioner Jose Fernando Menjivar-Melgar (“Menjivar-Melgar”) petitions for

review of a decision of the Board of Immigration Appeals (“BIA”) denying his

application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. §

1252. We deny the petition.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Menjivar-Melgar’s application for asylum was not timely because it was

filed more than one year after his arrival in the United States. See 8 U.S.C. §

1158(a)(2)(B). Failure to comply with the one-year requirement may be excused

where the petitioner demonstrates “extraordinary circumstances relating to the

delay” or “the existence of changed circumstances which materially affect the

applicant’s eligibility for asylum.” Id. § 1158(a)(2)(D). Ineffective assistance of

counsel may, in certain situations, constitute “extraordinary circumstances.” See 8

C.F.R. § 1208.4(a)(5)(iii).

      Menjivar-Melgar argues that the BIA failed to consider the ineffective

assistance of counsel he received when it declined to excuse his failure to comply

with the one-year bar. He further argues that the Immigration Judge (“IJ”) failed to

articulate a sufficient legal basis for rejecting his claim of changed circumstances

based on his new status as a step-father of U.S. citizen children. We have

jurisdiction to consider Menjivar-Melgar’s arguments because they turn on

undisputed facts—namely, his failure to satisfy the factors from Matter of Lozada,

19 I. & N. Dec. 637 (B.I.A. 1988), codified at 8 C.F.R. § 1208.4(a)(5)(iii)(A)–(C),

and his new parental role. See Sumolang v. Holder, 723 F.3d 1080, 1083 (9th Cir.

2013) (holding that this court had jurisdiction to review the BIA’s determination

regarding the changed-circumstances exception because the ruling turned on


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undisputed facts); Tamang v. Holder, 598 F.3d 1083, 1089 (9th Cir. 2010)

(holding that this court had jurisdiction to review the petitioner’s claim of

ineffective assistance of counsel because the claim involved a mixed question of

law and fact and the relevant facts were undisputed).1

      Substantial evidence supports the BIA’s rejection of these two claims. On

his claim of ineffective assistance of counsel, Menjivar-Melgar’s failure to satisfy

the Matter of Lozada factors rendered it nearly “impossible to determine whether

[his] ineffective assistance of counsel claim [had] merit.” Tamang, 598 F.3d at

1090. Moreover, Menjivar-Melgar suggested during his removal proceedings that

he failed to file for asylum within the one-year deadline because he believed that

“no one would listen to [him],” and thus did not pursue asylum “until [he] got

arrested.” These statements belie his claim of “extraordinary circumstances

relating to [his] delay.” See 8 U.S.C. § 1158(a)(2)(D). On his claim of changed

circumstances, even if the IJ failed to identify specifically a case supporting his



      1
         We find that Menjivar-Melgar sufficiently exhausted his claim of
ineffective assistance of counsel before the BIA. Menjivar-Melgar’s brief to the
BIA specifically discussed his alleged consultation with an attorney and a
community-based legal resource center, and, in both instances, he was given no
information regarding asylum. See Figueroa v. Mukasey, 543 F.3d 487, 492 (9th
Cir. 2008) (noting that exhaustion only requires a petitioner to put the BIA on
notice as to specific issues such that the agency had an opportunity to pass on those
issues).

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conclusion that the birth of a child constitutes merely a change in personal

circumstances, the IJ’s judgment nonetheless finds support in our case law. See He

v. Gonzales, 501 F.3d 1128, 1132 (9th Cir. 2007) (holding that “the birth of

children outside the country of origin is a change in personal circumstances that is

not sufficient to establish changed circumstances in the country of origin” for

purposes of excusing a failure to file a motion to reopen within the required ninety-

day deadline).

      2. The record does not compel the conclusion that Menjivar-Melgar is

entitled to withholding of removal. To qualify for withholding of removal,

Menjivar-Melgar must show that there is a clear probability that he will be

persecuted upon removal to El Salvador “on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 C.F.R. §

1208.16(b); see also El Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir. 2004).

Substantial evidence supports the BIA’s finding that the incidents described by

Menjivar-Melgar did not rise to the level of past persecution. Menjivar-Melgar

discussed how his family members in El Salvador were threatened, but none of

them were ever physically harmed. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.

2000) (“Our court generally treats unfulfilled threats, without more, as within that

category of conduct indicative of a danger of future persecution, rather than as past


                                       Page 4
persecution itself.”); Hoxha v. Ashcroft, 319 F.3d 1179, 1181–82 (9th Cir. 2003)

(unfulfilled threats made to an ethnic Albanian by various Serbs and a single,

possibly unrelated incident of beating did not amount to past persecution).

      Further, the BIA did not err in finding that Menjivar-Melgar’s proposed

group of deportees from the United States perceived to be wealthy was not a

cognizable social group because it lacked social visibility. Menjivar-Melgar

presented no evidence that members of the society or gangs in El Salvador

perceive or recognize this population as a social group. See Henriquez-Rivas v.

Holder, 707 F.3d 1081, 1088–89 (9th Cir. 2013) (en banc) (explaining that “social

visibility” requires that the shared characteristic be recognizable by members of the

community or that members of the group be perceived as a group by society).

      Even assuming that Menjivar-Melgar’s alternative proposed group of

“family related to former military members” is a cognizable social group, the

continuing safety of similarly-situated members of Menjivar-Melgar’s family who

have remained in El Salvador substantially undercuts his claim that he will likely

face persecution upon removal. See Santos-Lemus v. Mukasey, 542 F.3d 738,

743–44 (9th Cir. 2008), overruled on other grounds by Henriquez-Rivas, 707 F.3d

at 1093. Dr. Cordoba’s expert testimony regarding “deferred vengeance” does not

compel a contrary conclusion. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1


                                       Page 5
(1992) (“To reverse the BIA[’s] finding we must find that the evidence not only

supports that conclusion, but compels it . . . .” (emphasis in original)).

      3. The record does not compel the conclusion that Menjivar-Melgar is

entitled to relief under CAT. Dr. Cordova’s report regarding the inadequacy of the

Salvadoran judicial system and corruption within the National Civilian Police does

not compel the conclusion that a Salvadoran government official or person acting

in an official capacity would acquiesce in the torture of Menjivar-Melgar or his

family at the hands of former guerillas or gang members. See Cole v. Holder, 659

F.3d 762, 771 (9th Cir. 2011) (explaining that “acquiescence” requires that the

government be aware of the torture but continues to be willfully blind to it or

simply stands by due to its inability or unwillingness to oppose it).

      PETITION DENIED.




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