FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAUL GREGORIO MARTINEZ, 

Petitioner, No. 04-72975

v. Agency No. 

M A70-217-803 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 7, 2007—Pasadena, California

Filed October 6, 2008

Before: Harry Pregerson, John T. Noonan, and

Stephen S. Trott, Circuit Judges.

Opinion by Judge Trott;

Concurrence by Judge Noonan;

Dissent by Judge Pregerson

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COUNSEL

Kari E. Hong, Law Offices of Helen A. Sklar, Los Angeles,

California, for the petitioner. 

Arthur L. Rabin, U.S. Department of Justice, Office of Immigration Litigation, Washington D.C., for the respondent. 

OPINION

TROTT, Circuit Judge: 

Saul Martinez, a native of Guatemala, petitions for review

of a Board of Immigration Appeals’ (“BIA”) decision on

remand that denied his claims for asylum, withholding of

removal, and voluntary departure. In its decision, the BIA

upheld the Immigration Judge’s (“IJ”) adverse credibility

finding regarding Martinez. In a 2003 decision, this court

MARTINEZ v. MUKASEY 14195
remanded the matter to the BIA for further proceedings, concluding that it had failed to provide cogent reasons for rejecting Martinez’s testimony in support of his application.

Martinez v. INS, 72 F. App’x 564 (9th Cir. 2003). Martinez

also petitions for review of the BIA’s decision that denied his

motion to reopen to consider his Convention Against Torture

claim. 

We have jurisdiction over this timely petition, which we

deny on both counts. 

I

The facts pertaining to Martinez’s credibility — or the lack

thereof — are striking. In his initial Request for Asylum in the

United States dated September 21, 1992, he made the following admittedly false representations under penalty of perjury,

declaring that “the above and all accompanying documents

are true and correct to the best of my knowledge and belief”:

I am seeking Asylum in the US. Because in Guatemala I was threatened by the Gobernment because I

was in the University of San Carlos I was Leader of

the Students in the University of San Carlos and for

this reason the Gobernment persecuted and threatened me, I am afraid to return Guatemala because

many of my companions to disappear completely

and I can to disappear likewise. I was constantly

threatened by the Gobernment and my life was in

more danger than the rest of the people of my country. If I didn’t leave, I would have been killed. 

The constant conflicts that exist in Guatemala no

security for anyone. In my case that I belonged to

student groups is very hard to live in Guatemala. 

. . . . 

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I was in Student Group of The University of San

Carlos during the period between 1986 to Nov. 1991.

I was active member. My duties were to organized

Political Meeting. And organized to the Students. 

. . . . 

I was threatened by the Gobernment they have gone

on various occasions to my house and the University

looking for me. because I was Leader of the Students

in the University of San Carlos, causing my life to

be threatened to death by the Gobernment. 

. . . . 

I came to the US. in search of protection of my life,

I also came in search of a peaceful life without

always having to fear for my life, because in Guatemala my life was in danger, I was always persecuted

by the Gobernment. 

The next step in what turns out to have been a plot to

deceive the Immigration and Naturalization Service, the

United States Department of Justice, and the Attorney General was to foil the asylum officer assigned to his case. To

accomplish this ruse, he appeared in person before the officer

three years after his application and testified under oath —

again falsely — that he was the victim of persecution “on

account of my political opinion.” Moreover, he swore before

the officer that the content of his initial request was true. The

officer’s Assessment Report dated November 14, 1995, demonstrates that his hoax was designed to fit neatly into the

requirements of our asylum law. The report reads as follows:

Applicant indicated that he is a 31-year-old male

native and citizen of Guatemala who entered the

United States on May 14, 1992 at San Ysidro, Ca

without inspection. 

MARTINEZ v. MUKASEY 14197
Applicant fears that he will be killed by the government on account of his political opinion. 

Applicant credibly testified that in January 1991, he

became a leader in a student club at San Carlos University. Applicant stated that he began having problems due to his political opinion after participating in

Mardi Gras type parades with political overtones.

Applicant began receiving threatening phone calls in

January 1991 and believed that agents of the government were responsible. Applicant did not stated [sic]

a political opinion in response to the phone calls.

Applicant stated that the calls persisted through June

1991, when Applicant went to visit his parents in

Puerto Barrios. Applicant did not expereince [sic]

any problems in Puerto Barrios and stated that it was

a remote little town far from Guatemala City. In

August 1991, Applicant was chased by a car. Applicant was not harmed, although he believed that the

government was responsible. In November 1991,

Applicant was again chased by a car and shot at.

Applicant was not harmed and believed that the government was trying to scare him. Applicant left Guatemala the next day and traveled through Mexico

prior to coming to the United States. Applicant further stated that he has a brother, who is currently living in Guatemala City and not experiencing any

problems with the Government. Applicant’s family

is presently living in Puerto Barrios, and not experiencing problems with the government. 

Applicant has been threatened on several occasions

on account of his political opinion. Threats alone do

not constitute persecution. The Applicant has not

established a well-founded fear of future persecution. It appears that the threats the Applicant suffered

were local in nature. The Applicant was able to live

in Puerto Barrios, and not experience problems with

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the government. Applicant’s parents are presently

living in Puerto Barrios and not experiencing problems. Applicant has not established that the government has the inclination to pursue him. Applicant

can relocate. 

For the foregoing reasons, Applicant is not eliglible

[sic] for asylum in the United States. Assessment is

to refer to the Immigration Judge. 

(emphasis added). 

Three aspects of this report are particularly noteworthy.

First, the level of invented detail with which Martinez presented his false claim. Second, his ability to convince an

experienced asylum officer that his swindle was credible; and

third, Martinez’s failure nonetheless to achieve a favorable

asylum eligibility recommendation. 

Having failed to convince the asylum officer that his phony

political persecution story made him eligible for asylum, Martinez simply changed his tune, shed his first yarn, and showed

up three months later for a hearing before an IJ, armed with

an entirely new ground designed to make him eligible for asylum. No longer had he been a victim of persecution on

account of his political opinion. Now, euphemistically calling

his bogus initial request “partially incorrect,” he averred that

he had been persecuted because of his homosexuality. 

When confronted at his hearing with his previous story,

Martinez conceded that both the elaborate tale he recounted

in his initial request and then repeated in person three years

later to the asylum officer was a fabrication. He allowed that

he had taken an oath to tell the truth to the officer, but that he

had lied anyway because his “life was in danger.” When

pressed, Martinez admitted that the asylum officer had not

been intimidating and that he had never had any problem durMARTINEZ v. MUKASEY 14199
ing the four years he had been in the United States with government officials because of his homosexuality. 

The context of Martinez’s lies under oath to the asylum

officer was the subject of direct testimony by the officer, none

of which supports the existence of a hostile interview atmosphere which would explain Martinez’s adherence to his lies

or his alleged fear of danger. The officer’s testimony amply

supports the IJ’s disbelief of Martinez’s explanation of his

lies. Stating that he specifically recalled Martinez’s interview,

the officer said: 

I, I do swear them in also. I think I stated that also,

you know, as I was sworn today stating that he

should tell the truth and such. We — I personally

explain the procedure trying to make him feel as

comfortable as possible letting them know what the

next step is in the procedure even prior to getting to

the interview. After explaining the procedure we go

ahead and verify the biographical data on the I-589,

okay, and ask for any other evidence that he may be

willing to provide at that time. We assure that the

interview is very confidential, that nothing will get

back to Guatemala. That’s part of the procedure and

basically trying to reassure the applicant we’re there

to help them if we can. So they tell, tell us their complete story and we go, we go ahead over all the biographical information and also the, the testimony on

the I-589. And we, we start — usually I start by asking him the application to tell me the most severe

incidents that he experienced in Guatemala that compelled him to come to the United States. I make it

clear that there are five grounds so there is not just,

not just one ground that there — I also let them

know that there is membership in political social —

political group which is more or less a — membership in a, in a social group, excuse me. Not necessarily in a political group. I do ask whether he’s, he’s

14200 MARTINEZ v. MUKASEY
been a member of any groups or organizations, political or otherwise, other than the Catholic church per

se. I, I do make it clear that there are five grounds.

And we, we get into eliciting information, ascertaining that information for credibility, that’s the majority of the interview. Okay. We stress credibility very

highly and then upon completion of the interview I,

I bring any changes that were made during the interview on the 589 or in testimony, anything that is

inconsistent with what, what was explained originally. That is addressed. Upon addressing any inconsistencies we have the applicant sign stating that all

the testimony that he has provided on the 589 and

also his verbal testimony is true and correct. 

(emphasis added). 

In a thorough and detailed twenty-three page decision, the

IJ arrayed every aspect of the case and evidence before him

and then turned to Martinez’s credibility. Noting that the burden to demonstrate eligibility rested with the petitioner, the IJ

made the following lack of credibility finding: 

The Respondent has presented insufficient specific facts as well as concrete and/or credible evidence for the Court to infer that he has been

persecuted or has a well-founded fear of persecution

in Guatemala on account of his race, his religion, his

nationality, his membership in a particular social

group or his political opinion. The basis of the

Respondent’s claim to asylum before this Court was

dramatically inconsistent with the claim presented to

the INS in 1992 and reaffirmed before an INS asylum officer on November 13, 1995. Although

Respondent provides an explanation for the different

claims I do not find that explanation to be credible.

In light of the Respondent’s intelligence and more

than three years time in the Los Angeles area during

MARTINEZ v. MUKASEY 14201
which time he appears to have freely associated with

other gays and to have had no untoward difficulties

with governmental authorities Respondent did not

acquire the articulate intelligent relaxed demeanor

which he exhibited in this Court overnight. Moreover, we have a situation where the Respondent did

worse than neglect for whatever reason to refer to his

“homosexual” claim in 1992 or 1995, he set forth

“student/political” claim which was completely

untrue and he knew it was untrue. The Respondent’s

prior experience does not entitle him to come to the

United States and lie to a governmental official to

secure benefits under the laws of this country. Based

upon this conduct I find that Respondent’s present

claim of mistreatment due to his homosexuality

lacks credibility and, indeed, that Respondent is not

a person of good moral character as that term is

defined at Section 101(f)(6) of the Act. 

. . . . 

The Respondent has applied for the privilege of voluntary departure pursuant to Section 244(e) of the

Act as it existed prior to April 1, 1997. That section

requires an alien to establish that he is a person of

good moral character at least five years immediately

preceding his application. Good moral character as a

defined term in Section 101(f)(6) of the Act bars the

finding of good moral character if the alien has given

false testimony for the purpose of obtaining any benefit under the Act. In this case, Respondent is unable

to establish statutory eligibility as he gave false testimony before an INS asylum officer on November

13, 1995 for the purpose of obtaining asylum in the

United States pursuant to Section 208 of the Act.

Accordingly, Respondent’s application for voluntary

departure is denied on statutory grounds. 

14202 MARTINEZ v. MUKASEY
Specifically referencing that part of the IJ’s opinion dealing

with Martinez’s lack of credibility, the BIA determined in its

first Order denying asylum that Martinez had not presented a

credible testimonial claim sufficient to satisfy his burden of

proof. Addressing Martinez’s attempted explanation for the

difference between his two stories, the BIA said, “We are not

persuaded by the respondent’s explanations for this discrepancy.” Martinez petitioned for review of that decision. 

In an unpublished memorandum decision, we said, “Because the BIA stated only that it was ‘not persuaded by

respondent’s explanations’ and provided no legitimate, let

alone cogent, reason for rejecting Martinez’s ‘wholly consistent’ misrepresentation, we remand for proceedings consistent

with this disposition.” Martinez v. INS, 72 F. App’x 564. We

opined also that the BIA “did not adopt the IJ’s” credibility

decision. Id. On remand, the BIA corrected our misimpression, telling us that they had adopted the IJ’s reasoned

adverse credibility finding the first time around. The Board

then included in a new Order what our first panel majority

said was lacking in the BIA’s original decision: a specific,

cogent reason for rejecting Martinez’s justification for misrepresenting the basis for his fear of returning to Guatemala.

In addition, the Board formally affirmed its adoption in its

first Order of the IJ’s adverse credibility finding: 

On July 25, 2003, the Ninth Circuit remanded the

instant proceeding to the Board after finding that the

Board failed to provide a specific, cogent reason for

rejecting the respondent’s justification for misrepresenting the basis of his fear. Through his appeal, the

respondent incorporates a motion to remand to pursue relief under the Convention Against Torture

(“CAT”). The respondent’s appeal is dismissed. The

respondent’s motion is denied. 

Upon review, we affirm our prior resolution of the

instant case. Specifically, we find that the respondent

MARTINEZ v. MUKASEY 14203
failed to sustain his burden of proof regarding asylum as the result of his lack of credibility. The record

reflects that the respondent twice misrepresented the

basis of his fear while testifying under oath (Exhs. 2

and 12). Specifically, we note that the respondent

initially claimed that he had been persecuted on

account of his political opinion, however, he subsequently retracted this claim and instead, asserted that

he suffered persecution on account of his sexual orientation. We find this discrepancy material as it goes

to the heart of the respondent’s asylum claim. 

Although the respondent explained that the aforementioned misrepresentation was due to his fear of

experiencing additional persecution if the United

States government learned of his sexual orientation,

we do not find his justification persuasive. As

observed by the Immigration Judge, the respondent

spent more than 3 years in the Los Angeles area

freely associating with other gays and furthermore,

he did not experience any problems with any United

States governmental authorities (I.J. at 17). As further noted by the Immigration Judge, the respondent

exhibited an “articulate, intelligent and relaxed

demeanor.” Id. In sum, we adopted the Immigration

Judge’s decision below as the Immigration Judge

articulated cogent reasons for his adverse credibility

finding. 

(emphasis added). 

II

[1] Before deciding whether the IJ’s adverse credibility

finding, adopted and elaborated by the BIA, was justified or

not, we must address a preliminary question: does our first

panel’s decision constitute the “law of the case” which we

14204 MARTINEZ v. MUKASEY
must continue to apply as the matter comes to us for a second

time? If so, we would be required to grant Martinez’s petition.

[2] We answer this question in the negative. As Judge Noonan correctly explains in his concurring opinion, and as we

have previously held, the law of the case doctrine is “not an

absolute bar to reconsideration of matters previously decided.” Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th

Cir. 1995). It “merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to

their power.” Messinger v. Anderson, 225 U.S. 436, 444

(1912). Although this important doctrine is not something we

take lightly, if the previous disposition was “clearly erroneous

and would work a manifest injustice,” we may reconsider previously decided questions. Leslie Salt, 55 F.3d at 1393. 

[3] Here, as the record indicates, our court’s previous decision was materially mistaken, primarily because it was based

on a misunderstanding of the BIA’s decision, i.e., that the

BIA had not adopted the IJ’s adverse credibility finding — we

now know that it had. 

[4] Second, I agree with Judge Noonan that to allow Martinez at the end of the day to benefit from our mistake and his

deliberate attempt to deceive with invented facts our process

and the rule of law would constitute a manifest injustice.

Accordingly, we proceed to the next issue: whether the BIA’s

final decision passes muster, or not. 

III

[5] As the record reveals, Martinez repeatedly and persistently lied under oath with respect to his application for asylum. That his skillful lies were material and went to the heart

of his presentation goes without saying. The IJ’s reasons for

his adverse credibility finding “bear a legitimate nexus” to his

decision. Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir. 2000);

and we can discern no flaw in either the IJ’s or the BIA’s reaMARTINEZ v. MUKASEY 14205
soning. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002).

Thus, both the IJ and the BIA’s adopted adverse credibility

findings are well supported by substantial uncontroverted evidence in the record. Al-Harbi v. INS, 242 F.3d 882, 889-90

(9th Cir. 2001) (affirming negative credibility finding supported by applicant’s “propensity to change his story regarding incidents of past persecution”). Accordingly, we deny

Martinez’s petition for review.1

Petition DENIED. 

NOONAN, Circuit Judge, concurring: 

This case turns on what is the law of the case. The doctrine

that requires a court to follow, save with rare exceptions, what

has previously been decided by the court obviously plays an

important part in the judicial process. We are not to be put in

the place of Penelope constantly unweaving and reweaving

our decisions. 

Judge Trott makes a compelling case that our initial decision was mistaken. Martinez had lied grossly and repeatedly

in his sworn asylum application and in his testimony three

years later before the asylum officer. His explanation for what

is politely called “discrepancies” is as unconvincing to me as

it was to the immigration judge who heard him in person.

Martinez is articulate and intelligent and made articulate and

intelligent misrepresentations under oath going to the heart of

his asylum claim. 

Does recognition of our original mistake call for abandonment of the law of the case? No new law has intervened. No

1We conclude that the BIA did not abuse its discretion in concluding

that Martinez failed to establish a prima facie case that warrants reopening

under the Convention Against Torture. 

14206 MARTINEZ v. MUKASEY
new evidence has been presented. Yet the law of the case is

not inexorable. It “merely expresses the practice of courts

generally to refuse to reopen what has been decided, not a

limit to their power.” Messenger v. Anderson, 225 U.S. 436,

444 (1912); see also Leslie Salt Co. v. United States, 55 F.3d

1388, 1393 (9th Cir. 1995) (explaining circumstances in

which court will not apply law of the case doctrine). To let a

brazen liar game the system and receive the great benefit of

a grant of asylum is an injustice. It is not the way the law was

meant to work. The injustice is “manifest” once the facts of

the case are set out. For this reason, I concur in Judge Trott’s

opinion. 

PREGERSON, Circuit Judge, Dissenting: 

We have already decided the issue in this case, which is

whether the false statements in Martinez’s initial asylum

application and interview provided a sufficient basis to deny

his asylum claim. My colleagues have decided to disregard

the law of the case because they believe our previous disposition was “clearly erroneous and would work a manifest injustice.” Because our previous disposition was neither clearly

erroneous nor would it work a manifest injustice, I dissent. 

The majority argues that our previous disposition was

clearly erroneous because it misunderstood whether the BIA

had adopted the IJ’s decision. Our previous disposition noted

that: 

As both parties conceded, the BIA undertook an

independent analysis of Martinez’s testimony and

“agreed with,” but did not adopt, the IJ’s decision

that Martinez’s description of past persecution was

not credible. See Cordon-Garcia v. INS, 204 F.3d

985, 990 (9th Cir. 2000) (“Where the BIA reviews

the IJ’s decision de novo, our review is limited to the

MARTINEZ v. MUKASEY 14207
BIA’s decision, except to the extent the IJ’s opinion

is expressly adopted.”). 

Martinez v. INS, 72 F.App’x 564 (9th Cir. 2003) (emphasis

added). 

The majority contends that we erred in concluding that the

BIA did not adopt the IJ’s decision—despite the fact that the

government had conceded that very point, as noted in the

above quote. The majority relies on the BIA’s later 2004 decision, which stated that the BIA had adopted the IJ’s decision

back in 2002. The BIA cannot avoid the court’s disposition by

retroactively recharacterizing its previous decision. The fact is

that the BIA’s 2002 decision did not adopt the IJ’s decision.

Nothing the BIA said in 2004 can change that fact. Our court

was clearly correct that the BIA’s 2002 decision did not adopt

the IJ’s decision. I fail to see how that could be clear error justifying discarding the law of the case. 

The majority also contends that upholding this court’s previous disposition would work a manifest injustice. I strongly

disagree. It was clearly wrong for Martinez to initially present

a false story about his persecution to immigration authorities.

It is not hard to imagine, however, that a gay man who has

suffered persecution on account of his sexual orientation

would hide that fact from government authorities. When Martinez filed his asylum application in 1992, the INS had not yet

recognized that persecution on account of sexual orientation

provided a valid basis for an asylum claim. See Karouni v.

Gonzales, 399 F.3d 1163, 1171 (9th Cir. 2005). Indeed,

before the Immigration Act of 1990, homosexuality was a

ground for exclusion for any immigrant seeking to enter this

county. See Pub. Law 101-649 § 601, 104 Stat. 4978, 5067

(1990); see also House Rep. No. 723(I), 101st Cong., 2d

Sess., p. 56, reprinted in 1990 U.S. Code Cong. & Ad. News

6710, 6736. In this context, it is easy to understand how Martinez might have felt compelled to invent a story to avoid

14208 MARTINEZ v. MUKASEY
being returned to Guatemala, where he was persecuted on

account of his sexual orientation. 

As such, I am unable to understand how granting Martinez’s petition would constitute manifest injustice. I therefore

dissent. 

MARTINEZ v. MUKASEY 14209