Nelson Melgar-Melgar v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NELSON MELGAR-MELGAR,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 18-71129
Agency No. A206-096-915
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2022**
San Francisco, California
Before: NGUYEN and SANCHEZ, Circuit Judges, and BOUGH,*** District
Judge.
Nelson Melgar-Melgar, a native and citizen of El Salvador, petitions for
review of the denial by the Board of Immigration Appeals (“Board”) of his motion
* 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 Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
FILED
DEC 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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to reopen his removal proceedings. We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petition.
Ordinarily, a party may file only one motion to reopen removal proceedings
and must do so within 90 days of the final administrative decision. 8 C.F.R.
§ 1003.2(c) (2018); see also 8 U.S.C. § 1229a(c)(7). Melgar-Melgar does not
dispute his motion was time-barred. Yet motions to reopen are excused from
number and time bars if new evidence shows materially changed conditions in the
country of removal. See 8 C.F.R. § 1003.2(c)(3)(ii) (2018); see also 8 U.S.C.
§ 1229a(c)(7)(C)(ii). To merit this exception, the movant must produce evidence
that (1) was previously unavailable, (2) is material, (3) shows changed conditions,
and that (4) “when considered together with the evidence presented at the original
hearing, would establish prima facie eligibility for the relief sought.” Agonafer v.
Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017) (quoting Toufighi v. Mukasey, 538
F.3d 988, 996 (9th Cir. 2008)). Even where no exception applies, the Board may
choose to grant reopening under its sua sponte authority. See 8 C.F.R. § 1003.2(a)
(2018); Bonilla v. Lynch, 840 F.3d 575, 584–85 (9th Cir. 2016).
In his petition, Melgar-Melgar argues his new evidence showed materially
changed conditions and a prima facie case for asylum or withholding. He does not
argue it shows a prima facie case for relief under the Convention Against Torture,
and so waives any challenge to the denial on this basis. See, e.g., Velasquez-

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Gaspar v. Barr, 976 F.3d 1062, 1065 (9th Cir. 2020). Nor does he point to legal
error underlying the Board’s reasoning for not using its sua sponte authority to
reopen. Finding no “legal or constitutional error,” we lack jurisdiction to review
the Board’s decision not to use its authority. Bonilla, 840 F.3d at 588. We review
the Board’s denial of the changed conditions exception for abuse of discretion.
Avagyan v. Holder, 646 F.3d 672, 674, 678 (9th Cir. 2011).
The Board did not abuse its discretion. See id. at 678. The Board reasoned
that Melgar-Melgar’s submitted evidence, some pre-dating his removal hearings,
showed not changed conditions, but continued conditions. Further, it reasoned that
the evidence did not fill the gap in the prima facie case for relief: Melgar-Melgar
still had not met his burden to show that he had suffered past persecution, or would
more likely than not suffer future persecution, due to a protected ground. See 8
C.F.R. § 1208.16(b) (2018). The gangs wanted money—from Melgar, and from
everybody else. Even if the evidence showed Melgar or others saw his opposition
to the gangs as marked by political opinion, religion, or even a particular social
group, the evidence did not show (and indeed Melgar failed to argue specifically
and meaningfully) that the gangs saw his opposition that way, or cared. As a
result, the Board determined that the record, including the newly proffered
evidence, was insufficient to meet the nexus requirement for asylum or
withholding. See Garcia v. Wilkinson, 988 F.3d 1136, 1146–47 (9th Cir. 2021)

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(explaining nexus standard for each). The Board’s decision was therefore not
“arbitrary, irrational, or contrary to law.” Avagyan, 646 F.3d at 678 (quoting
Ontiveros–Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir. 2000)).
PETITION DENIED.

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