Kelvin Melgar-Alas v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT KELVIN ALEXANDER MELGAR-ALAS, No. 19-72163 AKA Kelvin Alas, AKA Kelvin Alexandra Alas-Melgar, AKA Kelvin Melgar, AKA Agency No. A077-070-077 Kelvin Alexander Melgar, AKA Pain, Petitioner, ORDER v. MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted April 13, 2021 Submission Vacated April 15, 2021 Resubmitted November 22, 2021 Seattle, Washington Before: O’SCANNLAIN and CALLAHAN, Circuit Judges, and FITZWATER,* District Judge. Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN The respondent’s unopposed motion to remand this case to the Board of Immigration Appeals (“BIA”) (Dkt. No. 52) is GRANTED. On remand, the BIA * The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation. is instructed to consider whether the petitioner satisfied the “objective official manifestation of permanent residence” pathway to derivative United States citizenship under former 8 U.S.C. § 1432(a)(5) (1994) as recently interpreted by this court in Cheneau v. Garland, 997 F.3d 916, 926 (9th Cir. 2021) (en banc). Upon remand, the BIA may also determine whether to return the matter to the immigration judge to further consider the petitioner’s Convention Against Torture claim, new evidence, and any additional issues the BIA deems necessary. Per the respondent’s unopposed request, the petitioner’s removal shall be stayed pending a decision in this matter by the BIA. Each party is to bear its own costs, expenses, and attorneys’ fees. The respondent’s motion to strike the petitioner’s response letter for non- compliance with the relevant rules (Dkt. No. 41) is DENIED as moot. This order constitutes the mandate of the court. 2 FILED NOV 23 2021 Melgar-Alas v. Garland, No. 19-72163 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS O’SCANNLAIN, Circuit Judge, concurring in part and dissenting in part: I am satisfied that the motion to remand should be granted with respect to the Cheneau issue. However, I must respectfully dissent from the panel’s decision to grant the motion with respect to the unrelated CAT claim. Far from “stat[ing] with particularity the grounds” justifying remand of the CAT claim, see Fed. R. App. P. 27(a)(2)(A), the motion’s only mention of the claim is as follows: “Upon remand, the Board may also determine whether to return the matter to the Immigration Judge to further consider Mr. Melgar-Alas’s CAT claim and new evidence, and any additional issues the Board deems necessary.” The parties fail to indicate their positions regarding whether any “new evidence” actually exists. They further fail to explain whether such evidence (hypothetical or otherwise) bears on the CAT claim at all, let alone enough to affect the outcome. Simply put, if there is any reason for the agency to rehear the CAT claim, the parties have not provided it. The parties’ silence is even more striking given that they have been communicating with the court for months regarding …

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