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Martinez v. Sessions

United States Court of Appeals, Ninth Circuit

July 20, 2017

Osmani Valencia Martinez, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted May 12, 2017 Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A079-776-031

         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.

          Before: Morgan Christen and Paul J. Watford, Circuit Judges, and James Alan Soto, [*] District Judge.

         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.

          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 ...


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