Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ayala v. Sessions

United States Court of Appeals, Ninth Circuit

May 1, 2017

Silvia Marisol Ayala, AKA Silva Ayala-Ayala, AKA Silvia Rodriguez, AKA Gabriela Rodriguez-Silav, AKA Gabriela Rodriguez-Silva, Petitioner,
v.
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued June 7, 2016

          Submitted April 24, 2017 Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A078-080-029

          Bradley A. Hyde (argued), Latham & Watkins LLP, Costa Mesa, California; for Petitioner.

          Timothy G. Hayes (argued) and Robert D. Tennyson, Trial Attorneys; Carl McIntyre, Assistant Director; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges, and Edward R. Korman, [*] District Judge.

         SUMMARY [**]

         Immigration

         The panel granted a petition for review of the denial of a motion to reconsider or reopen a negative reasonable fear determination in reinstatement removal proceedings.

         An immigration judge affirmed an asylum officer's determination that petitioner failed to establish a reasonable fear of persecution in reinstatement removal proceedings. Petitioner filed a motion to reconsider or reopen, which the IJ denied. Rather than directly petitioning this court for review, petitioner filed an appeal with the Board of Immigration Appeals, and the Board dismissed the appeal for lack of jurisdiction. Petitioner then filed the present petition for review within 30 days of the Board's decision.

         The panel first held that this court has jurisdiction over petitions for review from negative reasonable fear determinations in the context of the reinstatement of an expedited removal order.

         The panel next held that under all the circumstances of this case, including the fact that the IJ's decision on the motion advised petitioner of a right to appeal to the Board, even though no such right exists, the Board's decision constituted the final order of removal, and the petition is therefore timely.

         Turning to the merits, the panel held that the IJ abused his discretion in denying the motion to reconsider or reopen. The panel held that the IJ erred in concluding that extortion could not constitute persecution because extortion, plus the threat of violence, on the basis of a protected characteristic, can constitute persecution.

         Noting that petitioner sought only withholding of removal and not asylum, and therefore needed to establish only that a protected characteristic was "a reason" motivating the extortionate acts, the panel remanded to the IJ to determine whether petitioner established an "extortion plus" claim of persecution, based on her claimed extortion due to her family ties.

          OPINION

          REINHARDT, Circuit Judge:

         After having been previously removed from the country and reentering, petitioner Silvia Ayala was detained and her removal order was reinstated. Ayala contended, however, that she had a reasonable fear of persecution because she had been targeted for extortion, accompanied by threats of violence, in Guatemala based on her family ties.

         Pursuant to 8 C.F.R. § 241.8(e), Ayala had the right to have her reasonable fear claim heard by an asylum officer and then reviewed by an immigration judge (IJ). The asylum officer found that Ayala lacked a reasonable fear, and the IJ affirmed, holding that Ayala's extortion claim was legally insufficient to establish persecution. Ayala filed a motion to reconsider and reopen, which the IJ denied. Instead of directly petitioning the Ninth Circuit for review, however, she appealed that decision to the BIA. The BIA dismissed the appeal for lack of jurisdiction. Following the BIA's dismissal, Ayala filed a petition with the Ninth Circuit within 30 days; the petition, however, was filed more than 30 days after the IJ's denial of the motion to reopen and reconsider.

         First, we must decide whether we have jurisdiction over petitions for review from negative reasonable fear determinations in the context of the reinstatement of an expedited removal order under 8 U.S.C. § 1252. We conclude that we do.

         Second, we must decide whether Ayala's petition for review is timely filed within 30 days of her final order of removal. 8 U.S.C. § 1252(b)(1). To do so, we must determine whether the final order was the BIA's dismissal for lack of jurisdiction or the IJ's denial of Ayala's motion to reopen and reconsider. Ayala's petition for review is timely only if the former was the final order. We conclude that, under all of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.