Martinez v. Sessions, 873 F.3d 655

Osmani Valencia Martinez, a native of El Salvador, fled after repeated MS-13 recruitment threats and believed local police were complicit; he has no criminal or gang record in the U.S.
DHS served a reinstatement of a 2001 removal order in Sept. 2013; Martinez expressed fear of torture/persecution and had a reasonable fear interview on Oct. 10, 2013.
The asylum officer found Martinez credible but concluded his fear did not establish persecution on a protected ground nor government consent/acquiescence to torture; no reasonable fear was found. Martinez requested IJ review.
The IJ concurred with the asylum officer, declined additional evidence, and returned the case to DHS. Martinez timely filed an appeal to the BIA; the BIA dismissed the appeal for lack of jurisdiction under its regulation.
Martinez filed a petition for review in the Ninth Circuit. The court determined it had jurisdiction because the BIA dismissal was the final administrative order given the confusing and conflicting procedural guidance available to pro se aliens.
The Ninth Circuit vacated the IJ’s concurrence and remanded, directing the agency to properly consider police corruption/acquiescence evidence, the State Department country report, and correct CAT legal standards.

Issue	Martinez's Argument	Government's Argument	Held
Whether the court has jurisdiction to review the reasonable-fear determination	BIA dismissal was final; petition filed within 30 days	IJ determination was final, so petition was untimely	BIA dismissal was the final administrative order; Ninth Circuit has jurisdiction
Whether IJ and asylum officer properly considered evidence of government acquiescence/corruption for CAT claim	Agency failed to give proper weight to testimony about police corruption and State Dept. report	(No merits argument raised)	Remand for agency to consider police acquiescence, country report, and apply correct CAT standards
Whether Martinez’s credible testimony established reasonable fear of torture/persecution	Credible testimony and country conditions support reasonable fear	Agency found harm not on protected ground and no government acquiescence	Court accepted credibility but remanded for proper legal analysis; vacated IJ concurrence
Whether the BIA’s dismissal of appeal for lack of jurisdiction was proper under regulations	BIA lacked jurisdiction to bar appeal given statutory framework and confusing guidance	Cited 8 C.F.R. § 1208.31(g)(1) to justify dismissal	Dismissal deemed final for purposes of filing; court exercised review and instructed agency to clarify processes going forward

Daas v. Holder, 620 F.3d 1050 (9th Cir. 2010) (court may consider its own jurisdiction)
Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017) (when BIA order is final and guidance misleads, BIA decision can be final administrative action)
Yepremyan v. Holder, 614 F.3d 1042 (9th Cir. 2010) (30-day filing rule treated as jurisdictional)
Stone v. I.N.S., 514 U.S. 386 (U.S. 1995) (statutory time limits may be jurisdictional)
Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (where no adverse credibility finding, petitioner’s factual contentions are accepted as true)
Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009) (failure to raise an argument waives it)
Barron v. Ashcroft, 358 F.3d 674 (9th Cir. 2004) (judicial review limited when issues not first raised administratively)