KELVIN ALEXANDER MELGAR-ALAS, AKA Kelvin Alas, AKA Kelvin Alexandra Alas-Melgar, AKA… v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELVIN ALEXANDER MELGAR-ALAS,
AKA Kelvin Alas, AKA Kelvin Alexandra
Alas-Melgar, AKA Kelvin Melgar, AKA
Kelvin Alexander Melgar, AKA Pain,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-72163
Agency No. A077-070-077
ORDER
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.
FILED
NOV 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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Melgar-Alas v. Garland, No. 19-72163
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 Cheneau. After the April 13,
2021 oral argument, we vacated submission of this matter pending Cheneau and
ordered the parties to “advise the Court if supplemental briefing is necessary”
following “the issuance of the decision.” After Cheneau was decided the
FILED
NOV 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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following month, the parties obtained several extensions and eventually a stay, as
the “parties [were] discussing Cheneau and its application to Mr. Melgar-Alas’s
case” and the Government was “consider[ing] whether to seek further review” in
Cheneau. Later, in the parties’ November 2, 2021 letter, filed the day before the
motion to remand, they reiterated that they “have been in communication about
[Cheneau] and the impact it has on Mr. Melgar’s case” and announced that they
had “reached an agreement.” Finally, the motion itself states that the Government
“moves the Court to remand this case to the agency for further consideration of . . .
Melgar-Alas’s claim to United States citizenship in light of . . . Cheneau,” arguing
that “[r]emand is appropriate to allow the agency the first opportunity to consider”
the factual issues this case presents regarding the immigration paperwork.
Against this months-long, Cheneau-dominated backdrop, the parties sensibly
agreed that the BIA should have the opportunity to apply Cheneau in the first
instance. But it simply does not follow that the BIA should also be presented with
an unrelated claim—based not on citizenship paperwork in the United States but
on risk of torture in El Salvador—that it has already rejected.
I would deny the portion of the motion that relates to the CAT claim.

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