Edgar Martinez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR ISRAEL MARTINEZ, AKA No. 14-73317
Carlos Gutierrez,
Agency No. A095-003-185
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2020**
Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.
Edgar Israel Martinez, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for protection
under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 8 U.S.C. § 1252. We review de novo whether a
petitioner has been afforded due process. Ibarra-Flores v. Gonzales, 439 F.3d 614,
620 (9th Cir. 2006). “[A]n agency’s failure to follow its own regulations [is] not
per se a violation of due process, but . . . constitutional rights [are] implicated
‘when the agency’s disregard of its rules results in a procedure which in itself
impinged upon due process rights.’” Brown v. Holder, 763 F.3d 1141, 1149 (9th
Cir. 2014) (quoting Bates v. Sponberg, 547 F.2d 325, 329 (6th Cir. 1976)).
Martinez filed a Notice of Appeal from the IJ’s decision and specified his
intent to file a separate written brief in support of his appeal. When the BIA
obtains jurisdiction over a case via a Notice of Appeal, its regulations include
mandatory language concerning the issuance of a briefing schedule. 8 C.F.R.
§ 1003.3(c)(1).
Separately, the IJ ended her decision by mistakenly ordering “that this
matter be referred back to the Department of Homeland Security.” The BIA
inferred that the IJ’s “intention was to certify her decision to the Board.” When an
IJ certifies a case to the BIA, the IJ must advise the parties of the “right to make
representations before the Board, including the making of a request for oral
argument and the submission of a brief.” 8 C.F.R. § 1003.7. The BIA is
authorized to review a certified case “without regard to” the provisions of 8 C.F.R.
§ 1003.7, but only “if it determines that the parties have already been given a fair
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opportunity to make representations before the Board regarding the case, including
the opportunity [to] request oral argument and to submit a brief.” 8 C.F.R.
§ 1003.1(c).
Whether it was exercising its jurisdiction based on Martinez’s Notice of
Appeal or construing the IJ’s order as a certification of Martinez’s case, the BIA
never set a briefing schedule, and the record does not show whether it determined
that Martinez had already been given a fair opportunity to make representations
before it. In reviewing a petition, we can “consider only the grounds relied upon
by the BIA.” Singh v. Holder, 649 F.3d 1161, 1164 n.6 (9th Cir. 2011) (en banc)
(internal quotation marks omitted). If the BIA's decision “cannot be sustained
upon its reasoning, we must remand to allow the agency to decide any issues
remaining in the case.” Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004)
(per curiam). In the absence of any explanation from the BIA why it did not set a
briefing schedule, we must remand so the BIA can expressly make that
determination in the first instance.
REMANDED for further proceedings consistent with this disposition.
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