Silvia Ayala v. Jefferson Sessions ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SILVIA MARISOL AYALA, AKA Silva No. 13-72250
Ayala-Ayala, AKA Silvia
Rodriguez, AKA Gabriela Agency No.
Rodriguez-Silav, AKA Gabriela A078-080-029
Rodriguez-Silva,
Petitioner,
OPINION
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued June 7, 2016
Submitted April 24, 2017
Pasadena, California
Filed May 1, 2017
Before: Stephen Reinhardt and Kim McLane Wardlaw,
Circuit Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Reinhardt
*
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
2 AYALA V. SESSIONS
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AYALA V. SESSIONS 3
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.
COUNSEL
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.
4 AYALA V. SESSIONS
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
AYALA V. SESSIONS 5
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. See Borja v. I.N.S., 175 F.3d 732, 736
(9th Cir. 1999) (en banc), superseded by statute on other
grounds as stated by Parussimova v. Mukasey, 555 F.3d 734,
739–40 (9th Cir. 2009). 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. See
id.Statutory Background
“The Immigration and Nationality Act (INA) provides for
the expedited removal of an alien who was previously subject
to a removal order but returned illegally to the United States.”
Andrade-Garcia v. Lynch, 828 F.3d 829, 831 (9th Cir. 2016).
In such cases, “the original removal order may not be
executed against [the alien] again unless it is reinstated by an
authorized official.” Ortiz-Alfaro v. Holder, 694 F.3d 955,
956 (9th Cir. 2012). To reinstate the order, “an immigration
6 AYALA V. SESSIONS
officer must (1) obtain the prior order related to the alien,
(2) confirm that the alien under consideration is the same
alien who was previously removed or voluntarily departed,
and (3) confirm that the alien unlawfully reentered the United
States.” Id. at 956 (internal quotation marks omitted). After
doing so, the officer must give the immigrant written notice
and an opportunity to contest the findings. Id. If all of these
requirements are met, the removal order is reinstated and the
immigrant “shall be removed” under the prior removal order.
8 C.F.R. § 241.8(c).
Nonetheless, “an alien subject to a reinstated removal
order may be able to obtain CAT protection or other
withholding of removal if eligible.” Andrade-Garcia,
828 F.3d at 832. Pursuant to federal regulations, an alien who
“‘expresses a fear of returning to the country designated’ in
the reinstated order of removal . . . must be ‘immediately
referred to an asylum officer for an interview to determine
whether the alien has a reasonable fear of persecution or
torture.’” Id. (quoting 8 C.F.R. § 241.8(e)). “If the officer
decides that the alien does have a reasonable fear of
persecution or torture, the case is referred to an immigration
judge (“IJ”) ‘for full consideration of the request for
withholding of removal only.’” Ortiz-Alfaro, 694 F.3d at
956–57 (quoting 8 C.F.R. § 208.31(e)). If, however, “the
asylum officer decides that the alien has not established a
reasonable fear of persecution or torture,” then the alien is
entitled to appeal that determination to an IJ. Id. at 957 (citing
8 C.F.R. § 208.31(g)). On appeal, if the IJ affirms “the
officer’s negative fear determination, the case is ‘returned to
the Service for removal,’” and the alien is not entitled to
appeal further to the BIA. Id. The alien may, however,
petition this court for review of a negative reasonable fear
determination. Andrade-Garcia, 828 F.3d at 833.
AYALA V. SESSIONS 7
Factual and Procedural Background
Silvia Ayala is a 45 year old native and citizen of
Guatemala. She first entered the United States in 1991 and
requested asylum three years later on account of persecution
she suffered for joining a student protest. Her asylum request
was denied, but she was granted voluntary departure.
Nevertheless, she remained in the United States until
December 1998, when she left with her husband for
Guatemala.
Ayala stayed in Guatemala for only one month. Soon
after returning to Guatemala, she and her husband were
followed by a car while riding their motorcycle. Although
Ayala got off the motorcycle at her husband’s urging, he
continued riding, and the car followed him. Later that day, he
was found badly beaten. Her husband then told her to return
to the United States with their child. During that same month
in Guatemala, Ayala also received threatening phone calls at
her house.
Ayala returned to the United States in January 1999, was
apprehended at the border, and removed within the same
week. Soon thereafter, she reentered the United States and
has resided here since that time. While she has been in the
United States, her family in Guatemala has continued to face
threats. In 2007, her husband was murdered,1 and at some
point in 2012, unknown assailants shot at her mother’s house.
1
Although Ayala originally stated to the asylum officer that she did
not know who killed her husband, she later stated to the IJ that the police
killed him.
8 AYALA V. SESSIONS
In October 2012, over a decade after she reentered in
1999, Ayala was detained by ICE and was served with a
notice of reinstatement of her prior deportation order that
same day. She was not deported immediately, however,
because she expressed a fear of returning to Guatemala.
On February 8, 2013, pursuant to 8 C.F.R. § 241.8(e) and
the procedures described above, Ayala met with an asylum
officer for a determination as to whether she had a reasonable
fear of persecution or torture. Despite deeming her credible,
the asylum officer concluded that Ayala had not established
a reasonable fear because (1) her past harm did not rise to the
level of persecution; and (2) there was no evidence that such
harm was due to Ayala’s membership in a particular social
group. The officer stated that her husband was targeted only
for extortion, which did not rise to the level of past
persecution.
Because the asylum officer made a negative reasonable
fear determination, Ayala was entitled to appeal this
determination to an IJ. On April 9, 2013, an IJ conducted a
reasonable fear hearing and affirmed the asylum officer’s
negative determination. During the hearing, Ayala claimed
that a “group of people” was targeting her because “[m]y
husband’s family owned hotels and I believe they wanted to
extort us and that is why we were being followed.” At the end
of the hearing, the IJ stated that he was affirming the asylum
officer’s decision “because the only motivation indicated
throughout is extortion, criminal acts.” He did not offer any
other explanation. The denial form signed by the IJ and
served on Ayala states that “the case is returned to the DHS
for removal of the alien.” It also states: “This is a final order.
There is no appeal available.” The IJ’s denial form is
incorrect. There is, in the normal parlance, an “appeal”
AYALA V. SESSIONS 9
available from the IJ’s affirmance of the negative reasonable
fear determination: Ayala was entitled to what is denominated
a petition for review to this court. Andrade-Garcia, 828 F.3d
at 833.
On April 23, 2013, Ayala filed a motion for reopening
and reconsideration of the IJ’s reasonable fear determination
with the IJ. She argued that she was “afraid of returning as
she was married to a Hotel owner and that he was murdered
and she had been a victim of criminal activity in Guatemala
when she was in the company of her husband.” On April 29,
the IJ denied the motion to reopen for failing to state any new
facts and the motion to reconsider for failing to specify any
error of law or fact. A cover sheet from the immigration court
mailed to Ayala with the IJ’s decision stated: “This decision
is final unless an appeal is filed with the Board of
Immigration Appeals within 30 calendar days of the date of
the mailing of this written decision.” The cover sheet then
provides an address of the BIA for the appeal. As explained
above, these instructions were also incorrect: Ayala should
have been instructed to petition directly to this court for
review, not to the BIA. Ortiz-Alfaro, 694 F.3d at 957 (“The
regulations do not provide any means for the alien to appeal
the IJ’s decision regarding a reasonable fear of persecution to
the [BIA].”).
In accordance with the court’s instructions, on May 7,
2013, Ayala appealed the denial of the motion to reopen and
reconsider to the BIA. On June 18, the BIA dismissed the
appeal, stating that “no appeal lies from an Immigration
Judge’s decision reviewing a negative Reasonable Fear
Determination.”
10 AYALA V. SESSIONS
Ayala then filed a petition for review with this court on
June 22, 2013, four days after the BIA dismissed her appeal,
but more than 30 days after the IJ denied her motion to
reopen and reconsider on April 29, 2013.
I. Jurisdiction
We have jurisdiction to consider our own jurisdiction.
Daas v. Holder, 620 F.3d 1050, 1053 (9th Cir. 2010). This
case presents two jurisdictional questions.
A. Jurisdiction to review an IJ’s reasonable fear
determination arising under the reinstatement of
an expedited removal order
Ayala was issued an expedited removal order when she
reentered the country on January 16, 1999. The present case
arises out of the government’s reinstatement of that January
1999 expedited removal order against Ayala. We clearly have
jurisdiction over timely petitions for review of reasonable
fear determinations that arise out of the reinstatement of
“ordinary”—that is, not expedited—removal orders. See
Andrade-Garcia, 828 F.3d at 833. We must decide whether
the fact that this case deals with the reinstatement of an
expedited removal order precludes us from exercising
jurisdiction.2
2
Although both parties agree that we are not deprived of jurisdiction
by the fact that we are faced with reinstatement of an expedited removal
order, we nonetheless have “an independent obligation” to “raise and
decide jurisdictional questions that the parties either overlook or elect not
to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434
(2011).
AYALA V. SESSIONS 11
In Garcia de Rincon v. Department of Homeland Security,
we held that we lack jurisdiction to review the reinstatement
of an expedited removal order when an alien seeks to
collaterally attack the underlying expedited removal order on
due process grounds. 539 F.3d 1133, 1138 (9th Cir. 2008).
Although 8 U.S.C. § 1252(a)(2)(D) vests us with jurisdiction
to review constitutional claims and questions of law on
appeal of reinstated removal orders, 8 U.S.C. § 1252(e)
precludes review of such issues for the reinstatement of an
expedited removal order. Id. We noted in Garcia de Rincon
that we “retain some limited jurisdiction to adjudicate a
collateral attack on an underlying expedited removal order
that has been reinstated; but §§ 1252(a)(2)(A) and 1252(e)
expressly limit the scope of such review to habeas petitions
alleging that the petitioner is not an alien or was never subject
to an expedited removal order.” 539 F.3d at 1139. In that
case, these provisions deprived us of jurisdiction over the
petitioner’s due process challenge to the proceedings that
resulted in her expedited removal order. Id.Garcia de Rincon, however, is distinguishable from and
inapplicable to this case. Unlike the petitioner in Garcia de
Rincon, Ayala does not seek to collaterally attack her
underlying expedited removal order. Instead, she is
challenging the accuracy of the outcome of her reasonable
fear determination during her reinstatement proceedings
(rather than during her original underlying expedited removal
proceedings). Her petition for review in no way implicates the
underlying 1999 expedited removal order, and therefore
Garcia de Rincon is inapplicable. Nothing in 8 U.S.C. § 1252prevents us from exercising jurisdiction to review the
accuracy of the 2013 reasonable fear determination arising
from Ayala’s 2012 reinstatement proceedings. Cf. Morales de
Soto v. Lynch, 824 F.3d 822, 825 (9th Cir. 2016) (concluding
12 AYALA V. SESSIONS
jurisdiction is proper where petitioner “does not challenge the
legitimacy of her . . . expedited order of removal” . . . but
instead “limits her appeal to the manner in which ICE decided
to issue the reinstatement order against her”); Ortiz-Alfaro,
694 F.3d at 958 (“[R]esolving the issues presented by Ortiz’s
petition for review will not undermine the reinstatement of
the removal order, as Ortiz has not challenged the validity of
the reinstatement or the underlying prior removal order.”).
Accordingly, we conclude that we have jurisdiction over
petitions for review of reasonable fear determinations made
in connection with the reinstatement of expedited removal
orders.
B. Ayala’s petition for review is timely
A “petition for review must be filed not later than 30 days
after the date of the final order of removal.” 8 U.S.C.
§ 1252(b)(1). This time limit is “‘mandatory and
jurisdictional’ and ‘not subject to equitable tolling.’”
Yepremyan v. Holder, 614 F.3d 1042, 1043 (9th Cir. 2010)
(quoting Stone v. I.N.S., 514 U.S. 386, 405 (1995)). The
central question before us is whether the BIA’s dismissal for
lack of jurisdiction or the IJ’s denial of the motion to reopen
and reconsider was the final order. If it was the former, the
petition was timely; if not, we lack jurisdiction. We conclude
that Ayala’s petition is timely because the BIA’s order of
dismissal was the final order in this case.
The INA provides that a removal order becomes final
“upon the earlier of—(i) a determination by the [BIA]
affirming such [an] order; or (ii) the expiration of the period
in which the alien is permitted to seek review of such order
by the [BIA].” 8 U.S.C. § 1101(a)(47). This statutory
definition of finality, however, does not answer the question
AYALA V. SESSIONS 13
when an order becomes final in cases, like Ayala’s, in which
the regulations preclude BIA review. Neither of the
alternatives provided in § 1101(a)(47) is applicable in such
cases. See Ortiz-Alfaro, 694 F.3d at 957. In Ortiz-Alfaro, we
gave a somewhat understated explanation of the problem,
stating that the “statutory definition of finality does not
dictate a clear answer” in reinstatement cases “because there
is no way to appeal the reinstatement of a removal order to
the BIA.” Id. at 958 (citing 8 C.F.R. § 241.8). In a subsequent
case, we explained further that when the statutory definition
of finality fails to definitively provide an answer, a removal
order is considered final only when “all administrative
proceedings have concluded.” Abdisalan v. Holder, 774 F. 3d
517, 526 (9th Cir. 2014) (en banc), as amended (Jan. 6,
2015); accord Ortiz-Alfaro, 694 F.3d at 959.
Applying Ortiz-Alfaro and Abdisalan, we conclude that
the BIA’s dismissal for lack of jurisdiction was the final order
in Ayala’s case for three reasons. First, “all administrative
proceedings” were not concluded until the BIA rendered its
order dismissing Ayala’s appeal. After proceedings were
completed before the IJ, Ayala initiated further proceedings
before the BIA in accordance with the specific directions
provided to her by the agency. Where the agency has advised
a petitioner to pursue further proceedings before the BIA and
the individual timely does so, “all administrative
proceedings” have not concluded, and no final order exists,
until that administrative body has issued an order, even if the
body lacks jurisdiction and the order merely dismisses the
appeal on that basis.
Second, were we to hold that the IJ’s determination is the
“final” order, Ayala would be inadvertently deprived of her
only opportunity for judicial review of her negative
14 AYALA V. SESSIONS
reasonable fear determination. We have previously warned
against applying rules in a manner that effects such a total
deprivation of judicial review. See Ortiz-Alfaro, 694 F.3d at
958.3 Ayala should not lose her right to judicial review for
mistakenly following the normal exhaustion process, where,
as here, the agency misled her by providing her with
contradictory and incorrect instructions: first that she had no
right of appeal and then, when her motion to reconsider was
denied, that she did have a right to appeal to the BIA and
instructing her to follow the normal procedure by filing that
appeal “with the Board of Immigration Appeals within
30 calendar days.”
Finally, any concerns about delays in the reinstatement
process caused by petitioners who appeal to the BIA instead
of petitioning directly to this court should be minimal in
future cases: in light of our opinion, the BIA would be well
advised to institute a process for quickly dismissing such
appeals. More important, the agency can without delay
3
Consider, for example, a pro se immigrant in a typical asylum case
who appeals an IJ’s negative finding on only constitutional (non due-
process) grounds. Of course, “[t]he BIA does not have jurisdiction to
determine the constitutionality of the statutes it administers.” Padilla-
Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir. 2006), and the BIA
therefore must dismiss the appeal based on its lack of jurisdiction.
Nevertheless, the immigrant would not be penalized for appealing to the
BIA—that is, the immigrant would not lose the ability to petition the
Ninth Circuit for review of his constitutional issue simply because he
brought the constitutional issue to the BIA. Cf. Morgan v. Gonzales,
495 F.3d 1084, 1089 (9th Cir. 2007) (holding that constitutional issues
over which the BIA lacks jurisdiction do not have to be exhausted). The
same is true in this case. Here, Ayala appealed to the BIA even though the
BIA lacked jurisdiction. Just as with the hypothetical asylum seeker,
Ayala should not lose her ability to petition for review because she
appealed a case to the BIA on which it could not rule.
AYALA V. SESSIONS 15
correct its practice of misleading immigrants by changing its
erroneous notices, both by the IJ and in the document
accompanying the notice of decision. Instead of erroneously
advising petitioners to appeal to the BIA or that they have no
further legal recourse at all, its notices could inform them, for
example, that their sole remedy in the case of a negative
reasonable fear determination is to petition this court for
review within thirty days of the IJ’s decision.
In light of these circumstances, we hold that the “final”
order in this case is the BIA’s dismissal of Ayala’s appeal.
Because Ayala’s petition for review was filed four days after
this final order, it is timely filed, and we have jurisdiction to
review the IJ’s denial of the motion to reopen and reconsider.4
II. The IJ abused his discretion in denying Ayala’s
motion to reopen and reconsider.
A motion to reconsider addresses whether an IJ made
errors of law or fact, whereas a motion to reopen may be
granted only upon a proffer of new evidence that “is material
and was not available and could not have been discovered or
presented at the former hearing.” 8 C.F.R. § 1003.23(2), (3);
accord Iturribarria v. I.N.S., 321 F.3d 889, 895 (9th Cir.
2003). “We review the BIA’s denial of motions . . . to
reconsider for abuse of discretion, although [de novo] review
applies to the BIA’s determination of purely legal questions.”
4
Because we determine that Ayala’s petition is timely on the basis
explained above, we need not reach either (1) her argument that the BIA
erred in finding it lacked jurisdiction; or (2) her argument that the letter
from the immigration court erroneously instructing her that the order
would be final unless she appealed to the BIA resulted in a violation of
the due process clause.
16 AYALA V. SESSIONS
Cano Merida v. I.N.S., 311 F.3d 960, 964 (9th Cir. 2002)
(internal quotation marks omitted) (alteration in original).
At the hearing before the IJ on her appeal from the
negative reasonable fear determination, Ayala stated that she
and her husband were the subjects of extortion because of his
family’s ownership of hotels. Despite this testimony, the IJ
ignored the evidence of persecution on account of her family
status in his oral decision: he affirmed the asylum officer
“because the only motivation indicated throughout is
extortion, criminal acts.”
Following the IJ’s affirmance, Ayala moved for
reconsideration, again stating that she was afraid to return
because she would be targeted based on her family ties.
(“Respondent claims that she is afraid of returning as she was
married to a Hotel Owner . . . .”). The IJ denied this motion
by simply stating that Ayala “did not specify any error of law
or fact” and that “the facts stated in the Respondent’s motion
were considered in the prior proceeding.”
The IJ abused his discretion in concluding that there was
no legal error in his previous opinion affirming the negative
reasonable fear determination.5 Contrary to the IJ’s holding,
our precedents make clear that economic extortion on the
basis of a protected characteristic can constitute persecution.
5
We review the legal error de novo and conclude that the IJ abused
his discretion in reaching the result he did. See Popa v. Holder, 571 F.3d
890, 894 (9th Cir. 2009) (“An IJ abuses his discretion when he acts
arbitrarily, irrationally, or contrary to law.”) (citations and quotation marks
omitted); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405
(1990) (“A district court would necessarily abuse its discretion if it based
its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.”).
AYALA V. SESSIONS 17
Borja, 175 F.3d at 736; Barajas-Romero, 846 F.3d at 357 &
n.5 (“A person seeking withholding of removal must prove
not only that his life or freedom will be threatened in his
home country, but also that the threat is ‘because of’ one of
the five listed reasons:” race, religion, nationality,
membership in a particular social group, or political opinion)
(citing 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)). In
Borja, for example, the petitioner suffered past persecution on
account of her political opinion when she was extorted partly
for economic reasons and partly on the basis of her political
statements. 175 F.3d at 736. We described this type of
persecution as “extortion plus”—that is, extortion, with the
threat of violence, on the basis of a protected characteristic.
Id.Here, Ayala testified that she suffered this type of
persecution by stating that she faced extortion, and threats of
violence, not only for economic reasons, but also because of
her family ties. Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir.
2015) (“[T]he family remains the quintessential particular
social group.”). Whatever the merits of her claim, it was legal
error for the IJ to hold that extortion could not constitute
persecution for the purposes of withholding of removal:
where the petitioner’s membership in a particular social
group (in this case, a family) is at least “a reason” for the
extortion, it is sufficient to meet the nexus requirement for
withholding of removal. See Barajas-Romero, 846 F.3d at
360 (Post REAL-ID withholding claims are not governed by
the “one central reason” test that applies to asylum claims,
but instead require only that a protected ground was “a
reason” for persecution, which “is a less demanding
standard.”).
18 AYALA V. SESSIONS
Therefore, we grant Ayala’s petition for review, and
remand for the IJ to address whether Ayala has established a
reasonable fear based on her extortion-plus claim of
persecution.
CONCLUSION
We have jurisdiction to review the IJ’s negative
reasonable fear determination relating to the reinstatement of
Ayala’s expedited removal order. The BIA’s dismissal of
Ayala’s appeal for lack of jurisdiction was the final order of
removal; therefore, Ayala’s petition for review is timely
because it was filed less than 30 days after that order.
We hold that the IJ abused his discretion in concluding
that extortion could not constitute past persecution, and in
failing to consider the question of Ayala’s family ties.
Therefore, we GRANT Ayala’s petition for review and
REMAND for proceedings consistent with this opinion.