Marco Lopez-Ortiz v. Jefferson Sessions
706 F. App'x 895
| 9th Cir. | 2017Background
- Lopez-Ortiz, removed under expedited removal and subject to reinstatement proceedings, appealed an immigration judge’s (IJ) negative reasonable-fear determination.
- He alleges past persecution by corrupt police in Mexico (a robbery) that occurred decades earlier and moved to a nearby town, where he lived safely for nine years before entering the U.S.
- He does not allege constitutional defects in the expedited removal order, is not criminally charged, and does not seek habeas relief.
- Lopez-Ortiz sought to supplement the administrative record with documents related to the expedited removal; the court deemed those irrelevant because it lacks jurisdiction over the expedited removal order.
- The IJ issued a brief decision finding no reasonable fear of persecution or torture; Lopez-Ortiz argued the decision was boilerplate but raised that argument for the first time in reply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review expedited removal collateral attack | Lopez-Ortiz relied on Smith and criminal-case analogies to challenge expedited removal | Government: Ninth Circuit limits collateral review absent constitutional claim, habeas petition, or criminal charges | Court: No jurisdiction to review expedited removal; motion to supplement record denied |
| Eligibility to apply for asylum during reinstatement | Lopez-Ortiz sought asylum relief | Government: Asylum unavailable in reinstatement proceedings | Court: Lopez-Ortiz is ineligible to apply for asylum |
| Whether IJ’s brief opinion was improper boilerplate | Lopez-Ortiz: IJ opinion lacked individualized review and violated Ghaly | Government: Argument waived by raising it first in reply | Court: Boilerplate challenge waived; court reviews substance |
| Reasonable fear of persecution/torture | Lopez-Ortiz: Past persecution by government agents and presumed future risk; internal relocation unreasonable | Government: Evidence shows successful relocation and uncertainty about perpetrators; rebut presumption | Court: Substantial evidence supports IJ’s finding of no reasonable fear of persecution or torture; relocation reasonable and torture claim fails |
Key Cases Cited
- Pena v. Lynch, 815 F.3d 452 (9th Cir. 2015) (limits on jurisdiction to review collateral attacks to expedited removal)
- Smith v. U.S. Customs & Border Protection, 741 F.3d 1016 (9th Cir. 2014) (habeas-context limits on review)
- Morales-Izquierdo v. Gonzales, 486 F.3d 484 (9th Cir. 2007) (reinstatement of prior removal is not a criminal penalty)
- Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016) (asylum ineligibility during reinstatement)
- Andrade-Garcia v. Lynch, 828 F.3d 829 (9th Cir. 2016) (standard: substantial evidence review of negative reasonable-fear determinations)
- Ghaly v. Immigration and Naturalization Service, 58 F.3d 1425 (9th Cir. 1995) (boilerplate decision may be insufficient)
- Dhital v. Mukasey, 532 F.3d 1044 (9th Cir. 2008) (torture standard as subset of persecution)
- Eberle v. City of Anaheim, 901 F.2d 814 (9th Cir. 1990) (failure to raise argument timely results in waiver)