United States Court of Appeals

for the Fifth Circuit

No. 20-60814

Jose Alfredo Melendez-Monge, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A208 170 270 

Before Higginbotham, Dennis, and Graves, Circuit Judges.

Per Curiam:*

José Alfredo Melendez-Monge petitioned this Court to review the

denial of his applications for asylum, withholding of removal, and relief under 

the Convention Against Torture (CAT). We deny his petition. 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 16, 2022

Lyle W. Cayce

Clerk

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I.

Melendez-Monge is a native and citizen of El Salvador. While in El 

Salvador, he received national recognition for his work as a model, dancer, 

and television host. He also studied law at a university, completing three 

years of a five-year program. 

Melendez-Monge is openly gay and is an advocate for the LGBTQ+ 

community. From December 2014 to February 2015, the MS-13 gang 

repeatedly threatened and extorted him. Melendez-Monge testified that 

“[the gang] told me that they needed money, and that I had to pay them, 

because I was gay. Because people like me could not be in their 

proximity . . . that we were not men.” The gang also threatened MelendezMonge’s sister. While the gang never physically harmed him, MelendezMonge became fearful. He stopped going to university and working, and 

stayed inside. He also testified that many people belonging to a sexual 

minority in his community hide their sexuality because they are 

discriminated against or face severe violence or death. Finally, MelendezMonge testified that while the police initially attempted to help him, after he 

told the police that the gang targeted him for being gay, “they said that that 

was my fault . . . that if I were not gay, all of that wouldn’t be happening.”

However, the police did help Melendez-Monge and his sister when a gang 

member followed them in retaliation for Melendez-Monge failing to pay the 

extortion demand.

After this incident, Melendez-Monge unlawfully entered the United 

States in 2015. An immigration officer issued him a notice to appear charging 

him as removable. Melendez-Monge admitted the factual allegations against 

him, conceded that he was removable, and applied for asylum, withholding 

of removal, and protection under CAT. He claimed membership in particular 

social groups (PSGs) consisting of “(1) sexual minorities in El Salvador; (2) 

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Salvadoran gay males; and (3) nationally-recognized gay Salvadoran public 

figures.”

The Immigration Judge (IJ) denied relief but granted MelendezMonge voluntary departure. As to Melendez-Monge’s asylum and 

withholding of removal claims, the IJ reasoned that Melendez-Monge failed 

to establish past persecution as threats and extortion, absent physical harm 

or something more, are insufficient. The IJ further reasoned that MelendezMonge failed to establish a well-founded fear of future persecution. Because 

the police helped him in the past, his fear that he will be killed by the gang 

without any protection from the police in the future is objectively 

unreasonable. Finally, the IJ rejected Melendez-Monge’s CAT claim

because Melendez-Monge did not present evidence that he was tortured as 

he was not physically harmed. Nor could he show that he was tortured by or 

with the acquiescence of the El Salvadorian government. The BIA adopted 

the IJ’s reasoning and likewise denied relief. Melendez-Monge petitioned for 

review by this Court.

II.

We review the BIA’s decision and consider the IJ’s decision only to 

the extent that it influenced the BIA.1 We review findings of fact, including 

the denial of asylum, withholding of removal, and CAT protection under the 

substantial evidence standard.2 We may not reverse a factual finding unless 

the petitioner demonstrates that the evidence compels reversal.

3

III.

1 Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018).

2 Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). 

3 Id. 

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For each of his claims, Melendez-Monge argues that the IJ and BIA 

improperly failed to consider country reports indicating that sexual 

minorities experience violence at the hands of gangs and the police in El 

Salvador. He requests that if we do not reverse the BIA’s decision, that we 

remand to the BIA for further consideration of the country reports. 

Remand is not warranted here. While the BIA is not “required to

address every piece of evidence,” it is required to consider “key evidence.”4

It is true that the IJ did not explicitly consider these country reports in her 

analysis of each of Melendez-Monge’s claims, nor did the BIA explicitly 

mention the reports in adopting the IJ’s decision and reasoning. 

Nevertheless, the IJ stated that “The Court considered . . . respondent’s 

supporting documents . . . including the El Salvador Human Rights Report.”

This consideration overcomes our “concern that the BIA did not adequately 

consider the evidence before it.”5

IV.

A.

Melendez-Monge argues that the BIA erred by upholding the IJ’s 

denial of asylum and withholding of removal. 

To be eligible for asylum, Melendez-Monge must show that he is 

“unable or unwilling to return [to his home country] because of persecution 

or a well-founded fear of persecution on account of” PSG membership.6

4 See Emmanuel-Tata v. Garland, No. 20-60487, 2022 U.S. App. LEXIS 924, at *8 

(5th Cir. Jan. 12, 2022) (per curiam) (internal quotations and citations removed); see also

Arulnanthy v. Garland, 17 F.4th 586, 597 (5th Cir. 2021). 

5 Emmanuel-Tata, No. 20-60487, 2022 U.S. App. LEXIS 924, at *8.

6 Revencu v. Sessions, 895 F.3d 396, 402 (5th Cir. 2018) (internal quotations and 

citations removed); 8 U.S.C. § 1101(a)(42)(A). 

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Melendez-Monge may make this showing by demonstrating (1) past 

persecution, giving rise to a presumption of a well-founded fear of 

persecution or (2) a well-founded fear of future persecution.7

First, Melendez-Monge failed to demonstrate past persecution. 

“Persecution is often described in the negative.”8 We have held that, while 

“morally reprehensible,” “discrimination [and] harassment” ordinarily do 

not amount to persecution.

9 Additionally, we have held that economic 

extortion absent more is not persecution.10 Here, although Melendez-Monge

was threatened, harassed, and extorted sporadically over the course of three 

months, he was not physically harmed by the gang members. Thus, the BIA’s 

determination that the gang’s “discrimination,” “harassment,” and 

sporadic “economic extortion” does not compel reversal.11

Second, Melendez-Monge failed to demonstrate a well-founded fear 

of future persecution. Melendez-Monge bore the burden to establish a 

“subjective fear of persecution, and that fear must be objectively 

reasonable.”12 A petitioner cannot show an objectively reasonable fear of 

persecution absent a showing that “the violence is condoned or orchestrated 

7 8 C.F.R. § 208.13(b).

8 Gjetani v. Barr, 968 F.3d 393, 397 (5th Cir. 2020). 

9 Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004) (also noting that the 

petitioner received minor physical injuries) (internal quotations and citations removed). 

See also Barbosa-Ferreira v. Holder, 526 F. App’x 411, 414 (5th Cir. 2013) (“Substantial 

evidence supports the determination by the BIA and IJ that this single incident, in which 

Ferreira was threatened and harassed but not injured, did not constitute persecution.”). 

10 Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012). 

11 See Eduard, 379 F.3d at 188; Castillo-Enriquez, 690 F.3d at 668.

12 Eduard, 379 F.3d at 189 (internal quotations and citations removed).

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by the current [ ] government.”13 Here, the police protected MelendezMonge and his sister when a gang member followed them after MelendezMonge failed to pay the extortion demand. Thus Melendez-Monge could not 

show that the government would condone future violence against him. The 

BIA’s determination that Melendez-Monge did not show that his fear of 

persecution was objectively reasonable does not compel reversal. 

The showing for withholding of removal is similar to asylum but

involves a “more difficult” standard.

14 To be eligible for withholding of 

removal, Melendez-Monge must demonstrate “a clear probability of 

persecution on the basis of” a PSG.15 Because the record did not compel 

reversal as to Melendez-Monge’s asylum claim, it does not compel reversal 

as to his more demanding withholding of removal claim. 

B.

Finally, Melendez-Monge argues that the BIA erred by upholding the 

IJ’s denial of relief under CAT. To be eligible for protection under CAT, 

Melendez-Monge must first show “that it is more likely than not that 

he . . . would be tortured if removed to the proposed country of removal.”16

Second, Melendez-Monge must show that the government inflicted, 

13 Shehu v. Gonzales, 443 F.3d 435, 438 (5th Cir. 2006); Ibarra-Avilez v. Garland, 

No. 19-60273, 2022 U.S. App. LEXIS 1422, at *11 (5th Cir. Jan. 19, 2022) (per curiam) 

(holding that country reports detailing violence against the transgender community is 

insufficient to establish a well-founded fear of future persecution when the petitioner does 

not also show that the country’s government sanctions the violence).

14 Revencu, 895 F.3d at 402; Chen v. Gonzales, 470 F.3d 1131, 1138 (5th Cir. 2006).

15 Id. (internal quotations removed). 

16 Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002) (internal quotations and 

citations removed). 

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acquiesced, or gave consent to the torture.17 Again, because the police has 

protected Melendez-Monge in the past, the record does not compel reversal 

as to the BIA’s finding that Melendez-Monge failed to show sufficient state 

action giving rise to CAT relief. 

* * * *

We are sympathetic to Melendez-Monge for the hardships he has 

endured, but the substantial evidence standard is not easily overcome. 

Accordingly, we DENY Melendez-Monge’s petition for review. 

17 Tamara-Gomez v. Gonzales, 447 F.3d 343, 351 (5th Cir. 2006). 

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