Osmani Valencia Martinez v. Jefferson Sessions
2017 U.S. App. LEXIS 13078
| 9th Cir. | 2017Background
- Martinez, a Salvadoran who fled gang recruitment threats by MS-13 in 2001–2002, testified credibly that MS-13 repeatedly threatened him and that police were infiltrated by or collusive with the gang.
- DHS served a reinstatement of a prior removal order in Sept. 2013 and referred Martinez for a reasonable fear interview; the asylum officer found him credible but concluded no reasonable fear of torture or persecution because any harm by MS-13 would not be by government consent/acquiescence.
- Martinez requested IJ review; the IJ agreed with the asylum officer and denied relief, concluding gang recruitment is not a protected ground.
- Martinez timely appealed to the BIA; the BIA dismissed the appeal for lack of jurisdiction under a regulation stating no appeal lies from an IJ’s concurrence with a negative reasonable fear determination.
- Martinez petitioned this Court for review; the Ninth Circuit concluded the BIA’s dismissal was the final administrative order (so his petition was timely) and remanded for further consideration on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this Court has jurisdiction to review the IJ's negative reasonable-fear decision | Martinez argued his petition was timely because the BIA dismissal was the final administrative order | Government argued the IJ decision was final and Martinez missed the 30-day review period | Court held the BIA dismissal was the final administrative order; Martinez’s petition was timely and the Court has jurisdiction |
| Whether the BIA properly dismissed Martinez's appeal for lack of jurisdiction | Martinez argued the BIA had jurisdiction and the dismissal prevented judicial review | Government relied on regulation precluding appeals from IJ concurrence with negative reasonable-fear determinations | Court found the regulatory/administrative landscape confusing and treated the BIA dismissal as the final action for jurisdictional purposes |
| Whether the asylum officer/IJ properly considered acquiescence/corruption evidence for CAT claim | Martinez argued testimony and country-report evidence showed government acquiescence to MS-13 violence and corruption warranting CAT relief | Government did not brief the merits (waived) | Court remanded, directing the agency to properly consider police corruption evidence, the State Dept. country report, and apply correct CAT legal standards |
| Whether Martinez’s fear amounts to persecution on a protected ground | Martinez contended police corruption rendered gang threats effectively government-acquiesced torture/persecution | IJ concluded gang recruitment/fear alone is not a protected ground and rejected CAT/withholding claims | Court vacated IJ denial and remanded for application of correct legal standards to Martinez’s CAT claim |
Key Cases Cited
- Cole v. Holder, 659 F.3d 762 (9th Cir. 2011) (unchallenged credibility findings are treated as true on review)
- 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) (framework for finality and administrative exhaustion in reasonable-fear/reinstatement contexts)
- Yepremyan v. Holder, 614 F.3d 1042 (9th Cir. 2010) (30-day time limit for petitions for review treated as jurisdictional)
- Stone v. I.N.S., 514 U.S. 386 (U.S. 1995) (treatment of statutory time limits as jurisdictional)
- Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009) (failure to address an argument in briefing constitutes waiver)