Osmani Valencia Martinez v. Eric Holder, Jr.

Filing

Filed amended opinion (MORGAN B. CHRISTEN, PAUL J. WATFORD and JAMES ALAN SOTO) Accordingly, we GRANT the petition for review. The IJ s order concurring with the asylum officer s determination that Martinez did not have a reasonable fear of persecution or torture is VACATED, and the case is REMANDED to the IJ for further consideration in accordance with this opinion. [10614664]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OSMANI VALENCIA MARTINEZ,
Petitioner,

No. 14-70339

v.

Agency No.
A079-776-031

JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.

AMENDED
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 12, 2017
Pasadena, California
Filed July 20, 2017
Amended October 12, 2017
Before: Morgan Christen and Paul J. Watford, Circuit
Judges, and James Alan Soto,* District Judge.
Opinion by Judge Soto

*

The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.

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SUMMARY**

Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ decision dismissing for lack of
jurisdiction an appeal of an immigration judge’s negative
reasonable fear determination in reinstatement removal
proceedings.
The panel held that under the circumstances of this case
the Board’s decision dismissing Martinez’s appeal was the
final administrative order for purposes of determining the
timeliness of his petition for review to this court. The panel
concluded that because Martinez filed his petition within 30
days of the Board’s decision his petition was timely.
The panel noted that the government waived review of the
merits of the reasonable fear determination by failing to offer
any argument on it. The panel remanded for the agency to
give proper consideration to Martinez’s testimony about
police corruption and acquiescence in MS-13 gang violence,
to accord proper weight to the Department of State Country
Report on El Salvador, and in particular, evidence of
corruption and inability or unwillingness to prosecute gang
violence, and to apply the correct legal standards to
Martinez’s Convention Against Torture claim.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Nisha Patel (argued), Shawn P. Johnson, and Jeffrey T.
Fisher, Dechert LLP, Mountain View, California, for
Petitioner.
Matthew A. Connelly (argued), Trial Attorney; Derek C.
Julius, Senior Litigation Counsel; Douglas E. Ginsburg,
Assistant Director; Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Office of Immigration Litigation,
Civil Division, United States Department of Justice,
Washington, D.C.; for Respondent.

OPINION
SOTO, District Judge:
In this case, a removed alien challenges a reinstated
removal order by claiming that he has a reasonable fear of
being persecuted in his home country of El Salvador. An
asylum officer interviewed the alien and issued a negative
reasonable fear determination, and an immigration judge
concurred with that finding. The alien then appealed to the
Board of Immigration Appeals, which relied on a purported
lack of jurisdiction to dismiss the appeal. Petitioner argues
that the evidence before the asylum officer, when properly
considered, establishes a reasonable fear of torture. We
remand for further consideration.

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I.
A.

Petitioner Osmani Valencia Martinez (Martinez) was born
in El Salvador.1 When Martinez was about eighteen years
old, the gang La Mara Salvatrucha (MS-13) began a sustained
recruiting effort that lasted several years and included threats
of harm or death to Martinez and his family. Martinez
believed he could not go to the local police for protection,
because he perceived that the police and MS-13 were
intertwined. As such, he fled to the United States in 2001.
Shortly after arriving in San Diego, California, Martinez was
arrested and returned to El Salvador. Martinez stayed in El
Salvador for approximately six months, but he perceived the
same problems with no viable recourse; he, therefore,
returned to the United States around January 2002. He has
remained in the United States since that time, and there is no
indication of a criminal record or gang involvement.
B.
On September 26, 2013, the Department of Homeland
Security (DHS) served Martinez with a notice of
reinstatement, which indicated that he would be removed to

1

The asylum officer and subsequently the immigration judge found
Martinez credible. As such, this Court accepts the facts in the asylum
interview as true. See Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011)
(“Because neither the BIA nor the IJ made an adverse credibility finding,
we must assume that [petitioner’s] factual contentions are true. As a
result, the facts to which [he] testified are deemed true, and the question
remaining to be answered becomes whether these facts, and their
reasonable inferences, satisfy the elements of the claim for relief.” (second
alteration in original) (internal citations and quotations omitted)).

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El Salvador pursuant to the July 2001 removal order. He
expressed a fear of torture if he was forced to return to El
Salvador and was referred to an interview with an asylum
officer on October 10, 2013. During the interview, Martinez
explained that MS-13 recruited him from 1995 through 2000.
He stated that the gang had two reasons for the recruitment
effort: he was young, and the gang wanted to obtain money
from his mother’s business. He refused to report these threats
to local police because he believed that MS-13 had infiltrated
the police. He testified further that the same reasons persist
to the present, and he fears that if he returns to El Salvador
today, MS-13 will hurt or kill him. His fear of the El
Salvadoran government is limited to his perceived connection
between the police and MS-13 or perceived infiltration of the
police by MS-13.
“[W]hen weighing the totality of the circumstances,” the
asylum officer found Martinez’s testimony “sufficiently
consistent, detailed, and plausible for purposes of establishing
a reasonable fear claim.” The asylum officer, therefore,
found Martinez credible. However, the asylum officer’s
report determined that Martinez had not suffered past harm
that rose to the level of torture, that any persecution he
suffered was not based on a protected ground, and that
although there is a reasonable chance that MS-13 would
inflict serious harm on his return, such actions would not be
with the consent or acquiescence of the El Salvadoran
government. As such, the asylum officer determined that
Martinez had not established a reasonable fear of torture or
persecution. At the conclusion of the interview, Martinez
requested review by an immigration judge (IJ).
Martinez appeared pro se in front of the immigration
judge on December 17, 2013. The IJ explained that in her

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analysis, she didn’t “see anything where the officer made a
mistake or error in judgment.” She stated that the
immigration laws in the United States are “very strict” and
“don’t provide any protection for people who fear recruitment
by gangs . . . [because] [i]t just simply isn’t a protected
ground.” Martinez asked if the IJ wanted any additional
evidence, but the IJ declined, stating that “the officer found
that you were credible . . . . But even assuming that
everything you say is true, it doesn’t qualify for a ground for
withholding of removal or Convention Against Torture.” She
then agreed with the asylum officer’s determination and
returned the case back to DHS for removal.
Martinez mailed a notice of appeal to the Board of
Immigration Appeals (BIA) on December 27, 2013, ten days
after the IJ issued her written decision. The notice was
deemed filed by the BIA on December 31. On January 2,
2014, the BIA sent Martinez a filing receipt, and the record
from IJ proceedings was forwarded to the BIA for
consideration. On January 28, 2014, the BIA filed a short
order dismissing the appeal because “[c]ontrolling federal
regulations provide that no appeal lies from an Immigration
Judge’s decision reviewing a negative Reasonable Fear
Determination.” On February 5, 2014, Martinez filed a
petition with this Court requesting review of the IJ’s negative
reasonable fear determination.
II.
A.
We have jurisdiction to consider our own jurisdiction.
Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010).
Generally, “we have jurisdiction over petitions for review of

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reasonable fear determinations made in connection with the
reinstatement of expedited removal orders.” Ayala v.
Sessions, 855 F.3d 1012, 1018 (9th Cir. 2017). However, a
“petition for review must be filed not later than 30 days after
the date of the final order of removal.” 8 U.S.C.
§ 1252(b)(1). That 30-day time limit has been treated as
mandatory and jurisdictional in this Circuit.2 See, e.g.,
Yepremyan v. Holder, 614 F.3d 1042, 1043 (9th Cir. 2010)
(relying on Stone v. I.N.S., 514 U.S. 386, 405 (1995)).
Martinez filed his initial Petition for Review and Motion
for Stay on February 5, 2014. As in Ayala, then, “[t]he
central question before us is whether the BIA’s dismissal for
lack of jurisdiction or the IJ’s [no reasonable fear
determination] was the final order.” Ayala, 855 F.3d at 1018.
If the BIA’s dismissal is the operative decision, we have
jurisdiction to consider the underlying claims because
Martinez appealed within 30 days of the order. On the other
hand, if the IJ determination is the final order, we do not have
jurisdiction because more than 30 days passed between that
order and Martinez’s appeal.
The relevant statutes provide that an order becomes final
for purposes of appellate review “upon the earlier of—(i) a
determination by the [BIA] affirming such [an] order; or
(ii) the expiration of the period in which the alien is permitted
to seek review of such order by the [BIA].” Id. (alterations
in original) (quoting 8 U.S.C. § 1101(a)(47)). However,
when, as here, “the statutory definition of finality fails to
definitively provide an answer, a removal order is considered

2

We find it unnecessary to address Martinez’s argument that statutory
alterations and intervening Supreme Court precedent vitiate this precedent
given the facts of this case.

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final only when all administrative proceedings have
concluded.” Id. at 1019 (internal quotation marks and
citations omitted).
Ayala provides some guidance on when reasonable fear
determinations challenging reinstated removal orders
become administratively final. There, we provided three
circumstances that, when combined, made the BIA’s order
the final administrative proceeding. “First, all administrative
proceedings were not concluded until the BIA rendered its
order . . . [w]here the agency has advised a petitioner to
pursue further proceedings before the BIA and the individual
timely does so . . . .” Id. (internal quotation marks omitted).
Second, if the IJ determination were the final order in that
case, the petitioner “would be inadvertently deprived of her
only opportunity for judicial review . . . where, as here, the
agency misled her by providing her with contradictory and
incorrect instructions . . . .” Id. Finally, any concerns about
petitioners delaying removal by appealing to the BIA instead
of directly to this Court can be minimized by the agency
instituting a process to dismiss such appeals and correcting
any misleading information in its notices and decisions. Id.
at 1019–20.
The agency in this case did not mislead Martinez on its
forms or decisions to the same extent as it did the Ayala
petitioner; however, taken as a whole, we conclude that the
circumstances of Martinez’s case render the order from the
BIA the final administrative order. Unlike with the petitioner
in Ayala, the form Martinez received after the IJ’s
concurrence did not instruct him to appeal to the BIA.
Nonetheless, the way forward for Martinez was far from
clear. The constellation of statutes, regulations, instructions
contained on various forms, and responses from the BIA

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create a landscape that is confusing at best. The agency
regulation relied on by the government states that “[n]o
appeal shall lie from the immigration judge’s decision” after
an immigration judge concurs with the determination from
the asylum officer finding no reasonable fear of torture or
persecution. 8 C.F.R. § 1208.31(g)(1). If Martinez had taken
the regulation at face value, he might reasonably have thought
that the IJ decision was not subject to review—either through
an appeal to the BIA or through a petition for review by this
court. This reading would have been inaccurate in light of the
statute that confers jurisdiction over final orders of removal
on this court. See 8 U.S.C. § 1252. But looking to the
statutes still would not have helped Martinez because a plain
reading of the relevant provisions would have suggested that
his administrative case would only become “final” when the
BIA issued its decision or when the time when he was
permitted to file such an appeal had passed. 8 U.S.C.
§ 1101(a)(47).
Likewise, thoroughly reading the materials that the BIA
made available to Martinez—in particular the BIA Practice
Manual to which he was directed by the BIA filing
receipt—would have revealed that the BIA “generally has
the authority to review appeals from . . . decisions
of Immigration Judges pertaining to . . . the
Convention Against Torture.” Board of Immigration
Appeals Practice Manual, § 1.4(a), available at
https://www.justice.gov/sites/default/files/pages/attachments
/2017/02/03/biapracticemanualfy2017.pdf (last visited June
14, 2017) [hereinafter “BIA Manual”]. And if Martinez
continued reading the BIA Manual, he would have discovered
that reasonable fear determinations by immigration judges did
not appear on a list of issues over which the BIA did not have

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jurisdiction. Id. at § 1.4(b).3 The BIA’s own filing receipt
could have added to the confusion Martinez faced by stating
that “[i]f you leave the United States after filing this appeal
but before the Board issues a decision your appeal will be
considered withdrawn and the Immigration Judge’s decision
will become final as if no appeal had been taken,” leaving a
strong impression that the IJ’s decision was not currently
final.
The conflicting and confusing information available to
aliens like Martinez makes them susceptible to being caught
in a trap for the unwary. In the regular course of events,
aliens are not only permitted to seek review from the BIA, but
their failure to do so precludes judicial review of their case.
See, e.g., Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.
2004) (limiting subject-matter jurisdiction of this court to
issues first raised in administrative immigration proceedings).
This trap for the unwary is concerning in situations where, as
here, the agency has jurisdiction over a wide range of similar
issues but chooses to exempt narrow subsets of that class to
special restrictions. Additionally, many of the victims of the
trap will be pro se litigants without the assistance of
sophisticated counsel. The length of time an appeal remains
pending at the BIA before it issues its decision dismissing for
lack of jurisdiction also means that even aliens who are
diligently advancing their cases are likely to miss the deadline

3

The latest version of the BIA Manual does include reasonable fear
determinations in the list of issues over which the BIA does not have
jurisdiction, but it appears this change was not made until approximately
eighteen months after Martinez filed his appeal. BIA Manual at “Table of
Changes – July 27, 2015” (“Updated information regarding Board’s
jurisdiction related to reasonable fear determinations.”).

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for filing their petitions for review in this court, thereby
forfeiting any meaningful review of the IJ decision.
“Finally, any concerns about delays in the reinstatement
process caused by petitioners who appeal to the BIA instead
of petitioning directly to this court should be minimal in
future cases.” Ayala, 855 F.3d at 1019. As we noted in
Ayala, “the BIA would be well advised to institute a process
for quickly dismissing such appeals” and could avoid
confusing aliens by ensuring their communications are clear,
consistent, and accurate. Id. In the circumstances faced by
Martinez, however, we find that the final administrative order
was the BIA’s dismissal. Martinez, therefore, timely filed his
petition for review with this court, and we have jurisdiction.
B.
The government does not offer any argument on the
merits of this petition; therefore, it has waived any challenge
to the arguments Martinez raised. See Clem v. Lomeli,
566 F.3d 1177, 1182 (9th Cir. 2009) (holding that an appellee
who did not address an argument in the answering brief had
waived that issue). On remand, the agency is directed: (1) to
give proper consideration to Martinez’s testimony about
police corruption and acquiescence in MS-13 violence; (2) to
accord proper weight to the Department of State Country
Report on El Salvador, and in particular, evidence of
corruption and inability or unwillingness to prosecute gang
violence; and (3) to apply the correct legal standards to
Martinez’s Convention Against Torture claim.
Accordingly, we GRANT the petition for review. The
IJ’s order concurring with the asylum officer’s determination
that Martinez did not have a reasonable fear of persecution or

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torture is VACATED, and the case is REMANDED to the IJ
for further consideration in accordance with this opinion.