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You Can't Use an APA Claim to Circumvent a BIA Ruling

By Robyn Hagan Cain | Last updated on

Saul Martinez filed a false application for asylum and withholding of removal based on his alleged political opinion. Four years later, he admitted that he lied on the first application, and submitted a new application based on his sexual orientation.

Is it surprising that the immigration judge decided that Martinez lacked credibility? No?

The IJ denied the second application and the Board of Immigration Appeals affirmed. The Ninth Circuit Court of Appeals kicked the matter back to the BIA in 2003, finding the Board "failed to explain a legitimate and cogent basis for the adverse credibility finding."

On remand, the BIA again affirmed the IJ, but gave a more detailed explanation of its reasoning. The BIA also declined to reopen Martinez's case based on new Convention Against Torture (CAT) arguments because the Board determined that Martinez had failed to establish that he would be tortured if he was returned to Guatemala.

In 2009, Martinez changed tack and alleged that the BIA treated him differently than similarly situated individuals who had filed false asylum applications. According to the complaint, this was an arbitrary and capricious agency action in violation of the Administrative Procedure Act. The district court dismissed the claim for lack of jurisdiction.

Under the Immigration and Nationality Act (INA), the exclusive means to challenge an order of removal is the petition for review process. The INA also contains a "zipper clause" that consolidates all "questions of law and fact ... arising from any action taken or proceeding brought to remove an alien" into a petition for review.

Here, the Ninth Circuit noted that Martinez simply repackaged his rejected arguments -- and added a few others -- as reasons why the BIA decided his case in an arbitrary and capricious manner. This week, the court joined the Second and Seventh Circuits, holding that INA prohibits APA claims that indirectly challenge a removal order.

Because the substance of the relief that Martinez is seeking -- asylum, withholding of removal, and CAT -- would negate his order of removal, the Ninth Circuit agreed that the district court lacked jurisdiction to hear the case.

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