Osmani Valencia Martinez v. Jefferson Sessions

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OSMANI VALENCIA MARTINEZ, No. 14-70339 Petitioner, Agency No. v. A079-776-031 JEFFERSON B. SESSIONS III, Attorney General, AMENDED Respondent. 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. 2 MARTINEZ V. SESSIONS 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. MARTINEZ V. SESSIONS 3 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. 4 MARTINEZ V. SESSIONS 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 ...

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