Silvia Marisol Ayala, AKA Silva Ayala-Ayala, AKA Silvia Rodriguez, AKA Gabriela Rodriguez-Silav, AKA Gabriela Rodriguez-Silva, Petitioner,
Jefferson B. Sessions III, Attorney General, Respondent.
June 7, 2016
Submitted April 24, 2017 Pasadena, California
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.
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.
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
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.
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
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.
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.
REINHARDT, Circuit Judge:
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.
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.
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.
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 ...