The Ninth Circuit took jurisdiction over an appeal of a negative reasonable fear finding, even though the petition for review as filed more than 30 days after the Immigration Judge's order. In so doing, the Court noted the extremely complicated legal landscape that governs jurisdiction over review of negative reasonable fear determinations.
"The agency regulation relied on by the government states that no appeal shall lie from the immigration judge’s decision after an immigration judge concurs with the determination from the asylum officer finding no reasonable fear of torture or persecution. If Martinez had taken the regulation at face value, he might reasonably have thought that the IJ decision was not subject to review—either through an appeal to the BIA or through a petition for review by this court.
This reading would have been inaccurate in light of the statute that confers jurisdiction over final orders of removal on this court. But looking to the statutes still would not have helped Martinez because a plain reading of the relevant provisions would have suggested that his administrative case would only become “final” when the BIA issued its decision or when the time when he was permitted to file such an appeal had passed.
Likewise, thoroughly reading the materials that the BIA made available to Martinez—in particular the BIA Practice Manual to which he was directed by the BIA filing receipt—would have revealed that the BIA generally has the authority to review appeals from decisions of Immigration Judges pertaining to the Convention Against Torture. And if Martinez continued reading the BIA Manual, he would have discovered that reasonable fear determinations by immigration judges did not appear on a list of issues over which the BIA did not have jurisdiction.
The BIA’s own filing receipt could have added to the confusion Martinez faced by stating that if you leave the United States after filing this appeal but before the Board issues a decision your appeal will be considered withdrawn and the Immigration Judge’s decision will become final as if no appeal had been taken, leaving a strong impression that the IJ’s decision was not currently final."
The Court again urged the BIA to develop a streamlined mechanism for dismissing reasonable fear appeals over which it has jurisdiction, so as to avoid late-filed petitions for review.
The full text of Martinez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/20/14-70339.pdf