Martinez v. Mukasey (9th Cir., 10/6/08, No. 04-72975)

TROTT, Noonan (C), Pregerson (D)

   Petitioner had filed affirmatively for asylum based on political opinion as a member of a persecuted student group in Guatemala; in removal proceedings before the IJ he changed his ground for asylum to persecution because he was gay and admitted he'd lied earlier about his student activities in both his initial app and to the Asylum Officer.  This case had been remanded by the 9th Cir. in 2003 to the BIA because the BIA failed to state cogent reasons for rejecting petitioner's testimony; while the BIA agreed with with the IJ's adverse credibility finding it did not adopt that finding.  Petitioner also had filed a MTR to consider his CAT claim.  The 9th Cir. denied both grounds of the PFR.

  The 9th Cir. stated that its earlier opinion was not the law of the case since it had remanded to the BIA as to the reasons the BIA had upheld the IJ's denials of asylum/withholding/VD.  The BIA on remand had stated petitioner's testimony was not credible due to his earlier lying and his admissions of those lies.  The court here then said its misunderstanding of the initial BIA decision shouldn't benefit petitioner.

  The concurrence notes that to adopt its earlier decision, which would have led to a favorable decision for petitioner, was manifestly unjust and thus within an exception to the law of the case doctrine.

  The dissent points out that the question of whether the false statements were a sufficient reason to deny petitioner's asylum app had already been decided earlier by the 9th Cir. (No, they weren't sufficient reason).  Also, there was not manifest injustice since petitioner's failure to allege persecution based on sexual orientation was not illogical given the state of the law at the time he came to the U.S. and applied for asylum.

Read opinion here

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.