DENYS CERRITOS MARTINEZ V. LORETTA E. LYNCH, No. 12-72100 (9th Cir. 2016)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUN 30 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DENYS ERNESTO CERRITOS MARTINEZ, No. 12-72100 Agency No. A044-025-138 Petitioner, MEMORANDUM* v. LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 7, 2016 Pasadena, California Before: REINHARDT and WARDLAW, Circuit Judges and KORMAN,** Senior District Judge. Denys Ernesto Cerritos Martinez appeals the Department of Homeland Security’s (“DHS”) order reinstating removal, and the Immigration Judge’s (“IJ”) * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Edward R. Korman, Senior District Judge for the U.S. District Court for the Eastern District of New York, sitting by designation. order affirming the negative reasonable fear determination made by an asylum officer. We have jurisdiction pursuant to 8 U.S.C. § 1252. We grant the petition for review, vacate both orders, and remand for new proceedings. 1. The record presented on appeal does not contain evidence sufficient to sustain the order reinstating removal. Before reinstating an order of removal, “[t]he immigration officer must obtain the prior order of exclusion, deportation, or removal.” 8 C.F.R. § 241.8(a)(1). The document the government identifies as Martinez’s prior order of removal is largely illegible, and the date on that document does not match the date listed on the “notice of intent/decision to reinstate prior order.” Because the government has not satisfied the applicable requirements, Martinez is not removable under the current reinstatement order. See Lin v. Gonzalez, 473 F.3d 979, 983 (9th Cir. 2007). 2. As to the reasonable fear determination, the parties agree that the IJ’s one-page, checkbox order does not allow for adequate judicial review. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). Moreover, in the nearly four years that this appeal has been pending, the government has not been able to obtain the record of the reasonable fear proceedings. Martinez is therefore entitled to a new hearing before the IJ. See Jiang v. Holder, 754 F.3d 733, 741 (9th Cir. 2014). PETITION GRANTED; REMANDED with instructions. 2
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