Silvia Ayala v. Jefferson Sessions
2017 U.S. App. LEXIS 7673
| 9th Cir. | 2017Background
- Silvia Ayala, a Guatemalan national, was previously removed (1999), reentered, and in 2012 ICE reinstated her prior expedited removal order; she expressed fear of return.
- At a reasonable-fear interview, an asylum officer found Ayala credible but determined she lacked a reasonable fear, treating the harm as extortion that did not rise to persecution.
- Ayala appealed to an IJ; the IJ affirmed the negative reasonable‑fear determination, stating the motivation was criminal extortion, and returned the case for removal.
- Ayala moved to reopen/reconsider; the IJ denied the motion and the court’s cover sheet mistakenly directed her to appeal to the BIA.
- Ayala appealed to the BIA; the BIA dismissed for lack of jurisdiction. Ayala then filed a petition for review in the Ninth Circuit within 30 days of the BIA dismissal but more than 30 days after the IJ decision.
Issues
| Issue | Ayala's Argument | Sessions' Argument | Held |
|---|---|---|---|
| Whether Ninth Circuit has jurisdiction to review reasonable‑fear determinations arising from reinstatement of expedited removal orders | Ayala: Court can review negative reasonable‑fear determinations from reinstatement proceedings | Govt: Reinstated expedited removal context limits review under §1252(e) (distinguishing ordinary reinstatements) | Court: Jurisdiction exists; petition for review of a negative reasonable‑fear determination in reinstatement context is proper |
| Whether Ayala’s petition for review was timely (what constitutes the "final order") | Ayala: BIA’s dismissal for lack of jurisdiction was the final order; petition filed within 30 days of that dismissal | Govt: The IJ’s denial of the motion to reopen/reconsider was the final order; appeal was filed too late | Court: BIA dismissal was the final order because administrative proceedings continued when she timely appealed to the BIA; petition was timely |
| Whether the IJ legally erred by holding extortion cannot be persecution for withholding of removal | Ayala: Extortion plus threats, motivated at least in part by family membership (a particular social group), can constitute persecution and satisfy nexus for withholding | Govt: Harm was criminal/extortionate and not persecution on account of a protected ground | Court: IJ erred; extortion accompanied by threats and motivated at least in part by a protected characteristic (family) can be persecution for withholding (an "extortion plus" theory) |
| Remedy / next step | Ayala: Remand to IJ to consider extortion‑plus reasonable‑fear/withholding claim | Govt: Opposed to remand given IJ’s prior findings | Court: Grant petition; remand for IJ to determine whether Ayala established a reasonable fear based on extortion plus family‑based persecution |
Key Cases Cited
- Borja v. I.N.S., 175 F.3d 732 (9th Cir.) (en banc) (extortion coupled with threats on account of a protected characteristic can constitute "extortion plus" persecution)
- Barajas‑Romero v. Lynch, 846 F.3d 351 (9th Cir. 2017) (withholding of removal requires that a protected ground be “a reason” for persecution—less demanding than asylum’s central‑reason test)
- Andrade‑Garcia v. Lynch, 828 F.3d 829 (9th Cir. 2016) (procedures and reviewability for reasonable‑fear determinations in reinstatement proceedings)
- Ortiz‑Alfaro v. Holder, 694 F.3d 955 (9th Cir. 2012) (statutory finality problem in reinstatement cases and limits on BIA review)
- Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (a removal order is final when all administrative proceedings have concluded)