Henry Torres Sandoval v. Jefferson Sessions ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 23 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY TORRES SANDOVAL, AKA No. 14-70432
Henry Flores,
Agency No. A076-355-299
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 12, 2017
Pasadena, California
Before: CHRISTEN and WATFORD, Circuit Judges, and SOTO,** District Judge.
1. On December 12, 2013, an Immigration Judge (IJ) concurred in a negative
reasonable fear determination issued by an Asylum Officer (AO) against
Petitioner. Six days later, on December 18, 2013, Petitioner appealed to the Board
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
of Immigration Appeals (BIA). The BIA received the appeal on December 26,
2013, and sent a filing notice the following day, December 27, 2013. Then, on
January 29, 2014, the BIA issued a short order dismissing Petitioner’s appeal based
on a lack of jurisdiction according to the governing federal regulations. Petitioner
appealed that order to this Court on February 14, 2014.
2. In Ayala v. Sessions, 855 F.3d 1012 (9th Cir. 2017) and Martinez v.
Sessions, 863 F.3d 1155 (9th Cir. 2017), this Court described “when reasonable
fear determinations challenging reinstated removal orders become administratively
final.” Martinez, 855 F.3d at 1159. The concerns that led the Court in those cases
to decide that the administrative proceedings became final for appellate review
purposes when the BIA issued its dismissal order also apply here. In particular,
“[t]he constellation of statutes, regulations, instructions contained on various
forms, and responses from the BIA create a landscape that is confusing at best,”
and makes aliens “susceptible to being caught in a trap for the unwary.” Id. at
1159–60. Petitioner diligently pursued his case, filing his appeal with the BIA and
his petition to this Court shortly after the relevant orders were issued. Under these
circumstances, the final administrative order for review is the appeal from the BIA;
therefore, the petition for review is timely, and we have jurisdiction.
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3. The Government did not contest the merits of Petitioner’s case, and has,
therefore, waived any opposition. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th
Cir. 2009) (holding that an appellee who did not address an argument in the
answering brief had waived that issue). Given Petitioner’s testimony, which was
found credible by both the AO and IJ, the negative reasonable fear determination is
reversed. The case is remanded to the Department of Homeland Security to
determine whether Petitioner is entitled to withholding of removal, deferral of
removal, or other appropriate relief.
REVERSED and REMANDED.
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