704 F.3d 620 (9th Cir. 2012), 10-56023, Martinez v. Napolitano
|Citation:||704 F.3d 620|
|Opinion Judge:||MURGUIA, Circuit Judge:|
|Party Name:||Saul MARTINEZ, an Individual, Plaintiff-Appellant, v. Janet NAPOLITANO, Secretary of the Department of Homeland Security; Eric H. Holder, Jr., Attorney General of the United States, Defendants-Appellees.|
|Attorney:||Kari E. Hong, Law Offices of Kari E. Hong, Oakland, CA, for Appellant. Sarah S. Wilson, United States Department of Justice, Washington, D.C., for Appellees.|
|Judge Panel:||Before: BETTY BINNS FLETCHER,[*]MICHAEL DALY HAWKINS, and MARY H. MURGUIA, Circuit Judges.|
|Case Date:||December 03, 2012|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted Oct. 17, 2012.
Appeal from the United States District Court for the Central District of California, Otis D. Wright, District Judge, Presiding. D.C. No. 2:09-cv-07507-ODW-JEM.
Saul Martinez, a citizen of Guatemala, filed an action in the United States District Court for the Central District of California alleging that the Board of Immigration Appeals' (" BIA" ) decision to deny his application for asylum, withholding of removal, and relief under the Convention Against Torture (" CAT" ) was arbitrary and capricious and therefore in violation of the Administrative Procedure Act. The district court dismissed the complaint for lack of jurisdiction. We affirm.
I. Background and Procedural History
The following facts are taken from Martinez's complaint. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005) (in reviewing an order granting a motion to dismiss, we accept " all factual allegations in the complaint as true" ). In 1992, Martinez filed a false application for asylum and withholding of removal based on his alleged political opinion. An asylum officer denied this application. In 1996, at a merits hearing before an Immigration Judge (" IJ" ), Martinez admitted that the initial application was false, but submitted a new application for asylum and withholding of removal based on his sexual orientation. The IJ found that Martinez lacked credibility due to his initial false application and denied the second application. The BIA affirmed. In 2003, this Court granted Martinez's petition for review because the BIA failed to explain a legitimate and cogent basis for the adverse credibility finding. Martinez v. INS, 72 Fed.Appx. 564 (9th Cir.2003). 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 CAT arguments because the Board determined that Martinez had failed to establish that he would be tortured if he was returned to Guatemala. Martinez petitioned this Court for a second time but was unsuccessful and his petition was denied on March 3, 2009. Martinez v. Holder, 557 F.3d 1059 (9th Cir.2009).
Martinez then filed this complaint in October 2009, alleging that the BIA treated Martinez differently than similarly situated individuals that had filed false asylum applications. According to the complaint, this was an arbitrary and...
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