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Immigration Law

CA9 on Jurisdiction, Reinstatement, Reasonable Fear: Ayala v. Sessions

Ayala v. Sessions, May 1, 2017 - "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 circumstances, the BIA’s dismissal is the final order of removal, and Ayala’s petition for review is therefore timely.

We next turn to the merits of her motion and hold that the IJ abused his discretion in denying it. The IJ committed legal error by holding that extortion could not constitute persecution. On the contrary, extortion, plus the threat of violence, on the basis of a protected characteristic can constitute persecution. ... Because Ayala seeks only withholding of removal and not asylum, she need establish only that a protected characteristic was “a reason” motivating the extortionate acts. See Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). Therefore, we grant Ayala’s petition for review and remand to the IJ to determine whether Ayala has established an “extortion plus” claim of persecution."

[Hats off to pro bono counsel Bradley A. Hyde!]