NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0359n.06
No. 09-3277 FILED
Jun 11, 2010
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ANDRES DOMINGUEZ-GONZALEZ, aka
Joce Pitre Colon,
Petitioner,
v. ON PETITION FOR REVIEW OF AN
O RD ER O F T HE B O AR D O F
ERIC HOLDER, JR., Attorney General, IMMIGRATION APPEALS
Respondent.
OPINION
/
BEFORE: CLAY and GILMAN, Circuit Judges; and ZATKOFF, District Judge.*
CLAY, Circuit Judge. Petitioner, Andres Gonzalez Dominguez, seeks review of a February
26, 2009 order from the Board of Immigration Appeals (“BIA”) that affirmed the immigration
judge’s order of removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner alleges that the
immigration judge’s failure to advise him of his right to apply for asylum, withholding of removal,
and relief under the Convention Against Torture was reversible error based on the failure to follow
regulations and a related due process claim. For the reasons set forth below, we DENY the petition
for review of the decision of the Board of Immigration Appeals.
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.
No. 09-3277
BACKGROUND
Petitioner entered the United States by crossing the Arizona border without inspection on or
about September 10, 2003. Petitioner, who was born July 12, 1983, is a native-born citizen of
Guatemala. He was arrested for driving without an operator’s license, and local authorities contacted
the Department of Homeland Security (“DHS”) upon learning of his immigration status. Petitioner
was sentenced to 43 days’ incarceration for lacking an operator’s license, disorderly conduct, and
two counts of obstructing official business.
Petitioner was served with Notice to Appear from DHS on May 20, 2008. On June 3, 2008,
Petitioner was placed in removal proceedings and charged with being present in the United States
without admission or parole, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Two hearings were held
before the immigration judge, the first on July 8, 2008 and the second on August 12, 2008. The
immigration judge entered an order of removal at the conclusion of the second hearing.
At the first hearing before the immigration judge on July 8, 2008, via video conference from
the Seneca County Jail in Tiffin, Ohio, Petitioner was informed of his right to have an attorney
present. Petitioner advised the immigration judge that he feared returning to his native Guatemala.
The hearing was adjourned when Petitioner indicated he would like to find counsel before
proceeding. A second hearing was convened on August 12, 2008, again via video conference.
Petitioner appeared pro se at this hearing as well, and the immigration judge did not inquire into
Petitioner’s efforts to find an attorney.
The second hearing was relatively short, consisting primarily of the immigration judge
insuring that the facts underlying Petitioner’s removability were admitted by Petitioner. The
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immigration judge then inquired whether Petitioner was eligible for voluntary departure, concluding
that he was not because he did not possess a passport or have funds for travel. Petitioner declined
to designate a country for removal, stating that he preferred to stay in the United States. The
government designated Guatemala as the country of removal.
The immigration judge then inquired into whether Petitioner had any fears of returning to
Guatemala, to which Petitioner answered in the affirmative. Petitioner explained that his family had
borrowed money ($9,000) from a loan shark to pay for medical expenses related to a disfiguring burn
to Petitioner’s right hand and arm, and that this same loan shark had brought Petitioner to the United
States to work to pay the high-interest debt owed. Petitioner indicated that he fears that this loan
shark will kill him or his family if he returns to Guatemala because they cannot afford to repay the
debt. The immigration judge then asked whether Petitioner had any fears of the government of
Guatemala harming him upon return, to which Petitioner responded in the negative. The hearing
concluded with the immigration judge ordering Petitioner removed to Guatemala and advising
Petitioner of his right to appeal the decision to the BIA.
Petitioner appealed to the BIA by filing a Notice of Appeal on August 28, 2008. In his appeal
to the BIA, Petitioner attached a letter reiterating his story about the loan shark and his fear of
returning to Guatemala. After the appeal was initiated, Petitioner obtained and was represented by
counsel before the BIA, who argued the same grounds for relief asserted in this timely appeal.
Petitioner has been removed to Guatemala during the pendency of this action.1
1
The removal of an alien does not moot a pending appeal of an order of removal. See
Garcia-Flores v. Gonzales, 477 F.3d 439, 441 n.1 (6th Cir. 2007) (holding that an alien suffers
ongoing injury of re-entry bar due to order of removal); accord Santana-Albarran v. Ashcroft, 393
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On October 27, 2008, the BIA remanded the case to the immigration judge for issuance of
a formal written or oral decision. A written decision was issued by the immigration judge on
November 6, 2008. Briefing continued before the BIA, with Petitioner’s counsel filing an
appearance on December 9, 2008. New briefs were filed by both Petitioner and Immigration and
Customs Enforcement. The BIA denied Petitioner’s appeal in an order dated February 26, 2009.
This timely petition for review followed.
STANDARD OF REVIEW
When the BIA issues its own opinion rather than summarily adopting the findings of the
immigration judge, this Court reviews the decision of the BIA as the final agency determination.
Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007). The substantial-evidence-on-the-record
standard of review requires that the BIA’s decision be upheld unless is it “manifestly contrary to the
law.” Castellano-Chacon v. I.N.S., 341 F.3d 533, 552 (6th Cir. 2003); see also Koulibaly v.
Mukasey, 541 F.3d 613, 619 (6th Cir. 2008). The administrative findings of fact must be upheld
unless this Court finds that “any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see also I.N.S. v. Elias-Zacharias, 502 U.S. 478, 481 (1992);
Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006).
Legal conclusions of the BIA are reviewed de novo. Patel v. Gonzales, 432 F.3d 685, 692
(6th Cir. 2005). This Court reviews de novo claims of due process violations in removal
proceedings. Akhtar v. Gonzales, 406 F.3d 399, 408 (6th Cir. 2005). Finally, this Court defers to
F.3d 699, 701 n.1 (6th Cir. 2005).
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the agency’s reasonable interpretations of its own regulations. Aburto-Rocha v. Mukasey, 535 F.3d
500, 503 (6th Cir. 2008) (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)).
DISCUSSION
A. Standard for Regulatory and Due Process Violations
Petitioner alleges that the immigration judge’s failure to advise him of his statutory right to
seek asylum, withholding of removal, and relief under the Convention Against Torture was a clear
violation of the regulations governing the deportation proceedings. See 8 C.F.R. § 1240.11(c). He
also alleges that, only with regard to withholding of removal and relief under the Convention Against
Torture, this error amounts to a violation of due process. See Reno v Flores, 507 U.S. 292, 306
(1993) (the Fifth Amendment of the Constitution guarantees due process of law to aliens in removal
proceedings); Ashki v. I.N.S., 233 F.3d 913, 921 (6th Cir. 2000) (discretionary forms of relief are not
sufficient to support a due process violation because the petitioner does not have a protected interest
in such forms of relief).
Petitioner has cited no authority from this Circuit supporting his claim that a failure of the
immigration judge to advise an alien of his statutory right to apply for discretionary relief is a
reversible error. Instead, Petitioner relies upon authority from the Seventh Circuit, Asani v. I.N.S.,
154 F.3d 719, 727-29 (7th Cir. 1998), which in turn relies upon authority from the Ninth Circuit,
Duran v. I.N.S., 756 F.2d 1338, 1341-42 (9th. Cir. 1985). The Seventh Circuit has developed a
doctrine in removal proceedings in which reversal is required where the immigration judge fails to
follow clear regulatory mandates such that the alien “may have been able to demonstrate” a right to
relief, even if the relief is discretionary. Asani, 154 F.3d at 729. However, in Asani, the court’s
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ruling on the petitioner’s due process claim was merely dicta because the court remanded to give the
petitioner an opportunity to file an untimely motion to reopen, relying upon representations from the
government that such a motion may be available under new regulations. Id. at 728-29. Furthermore,
Asani involved a situation where the petitioner was apparently eligible for the discretionary relief,
which as discussed below, is not true of the instant case. Therefore, the Seventh Circuit’s precedent
does not support an automatic reversal where the immigration judge fails to follow mandatory
regulations, despite Petitioner’s arguments to the contrary. Moreover, we adopt the same standard
for such a regulatory violation as the one this Court uses for procedural due process claims –
requiring an alien to show a similar level of prejudice in order to demonstrate reversible error.
“[R]eviewing an alleged due process violation is a two-step inquiry: first, whether there was
a defect in the removal proceeding; and second, whether the alien was prejudiced because of it.”
Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). Prejudice will not be presumed, even in cases
where the error alleged deprived the alien of a statutory right. Gishta v. Gonzales, 404 F.3d 972, 979
(6th Cir. 2005).
It is not settled whether the immigration judge committed a procedural error in failing to
advise Petitioner of his statutory rights. Petitioner, proceeding pro se, answered in the affirmative
when asked whether he feared returning to Guatemala. While he did not allege facts sufficient for
relief, his lack of experience and his lack of counsel probably should have caused the immigration
judge to follow the regulatory mandate to advise aliens of their statutory rights to apply for relief for
which they were apparently eligible. Whether this error is sufficient to support a procedural due
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No. 09-3277
process claim need not be settled at this time because Petitioner has not shown sufficient prejudice
to warrant reversal.
The parties dispute whether the issue of prejudice is properly before this Court and what
standard of prejudice is required in this Circuit. The government asserts that in order to show
prejudice, the alien must show that but for the alleged error, he “would have been entitled to continue
residing in the United States.” Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) (citing Denko
v. I.N.S., 351 F.3d 717, 724 (6th Cir. 2003)); see also Huicochea-Gomez v. I.N.S., 237 F.3d 696,
699-700 (6th Cir. 2001). Petitioner argues that the BIA did not address the issue of prejudice, and
so that issue is not before this Court, and alternatively, that prejudice is shown simply by the fact that
the alien’s actions would have been different had the error not occurred.
When the BIA adopted the immigration judge’s ruling that Petitioner “did not establish a
prima facie case for asylum or withholding of removal,” this ruling implicitly addressed the
prejudice prong of the due process analysis. (Admin. R. 3). Therefore, prejudice is properly before
this Court. Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974)
(“While we may not supply a reasoned basis for the agency’s action that the agency itself has not
given, we will uphold a decision of less than ideal clarity if the agency's path may reasonably be
discerned.”) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).
To establish the requisite level of prejudice, Petitioner must show that the immigration
judge’s failure to advise him of his statutory rights “led to a substantially different outcome from that
which would have occurred in the absence of the [] violation[].” Graham v. Mukasey, 519 F.3d 546,
549-50 (6th Cir. 2008). He must, in other words, demonstrate “that the alleged violation affected
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No. 09-3277
the outcome of the proceedings.” Gishta, 404 F.3d at 979 (citation omitted). Furthermore, “we will
not simply presume prejudice.” Id.
B. Petitioner’s Allegations of Prejudice
This Court will reverse the decision of the BIA affirming the order of removal only if it finds
that the immigration judge’s failure to advise Petitioner of his statutory rights prejudiced Petitioner’s
ability to vindicate those rights. In this instance, Petitioner would need to show that he has alleged,
either before the immigration judge or on appeal, sufficient factual allegations to support the
conclusion that he is eligible for asylum, withholding of removal, or relief under the Convention
Against Torture.
i. Legal Standards for Relief
In order to demonstrate that he is eligible for asylum, Petitioner must show that he qualifies
as a refugee by providing evidence to “establish either that he has suffered actual past persecution
or that he has a well-founded fear of future persecution.” Pilica v. Ashcroft, 388 F.3d 941, 950 (6th
Cir. 2004). This persecution must be shown to be “on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Even if
Petitioner can demonstrate such a well-founded fear of future persecution, the Attorney General has
discretion whether to grant asylum. See 8 U.S.C. § 1158(b)(1)(A). Petitioner bears the burden of
providing evidence to support his claim for asylum. See Lin v. Holder, 565 F.3d 971, 976 (6th Cir.
2009) (citing I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987)).
“An application seeking withholding of deportation faces a more stringent burden of proof
than one for asylum.” Mikhailevitch v. I.N.S., 146 F.3d 384, 391 (6th Cir. 1998) (citing
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No. 09-3277
Cardoza-Fonseca, 480 U.S. at 431-32). The standard for withholding of removal is that the
petitioner must demonstrate that there is a clear probability, or that it is more likely than not, that he
would face persecution in the country of removal on account of one of the five protected grounds
enumerated in the definition of a refugee. Id. Meeting this higher burden of proof then entitles the
applicant to mandatory withholding of removal rather than the triggering of the discretionary
standard of a grant of asylum. Cardoza-Fonseca, 480 U.S. at 429. If Petitioner does not meet his
burden as to his asylum claim, it follows that he cannot establish entitlement to withholding of
removal. See Zhao v. Holder, 569 F.3d 238, 246 n.10 (6th Cir. 2009).
In order to establish entitlement to relief under the Convention Against Torture, a petitioner
bears the burden of showing “it is more likely than not that he or she would be tortured if removed
to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). This standard is a higher burden
than that for a well-founded fear of future persecution. See Ramaj v. Gonzales, 466 F.3d 520, 532
(6th Cir. 2006). Torture is defined as
any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining . . . information or a confession,
punishing him or her for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a her or a third
person, or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity.
8 C.F.R. § 1208.18(a)(1) (emphasis added).
This standard for relief requires considering all relevant evidence, such as evidence of past
torture inflicted on the petitioner, evidence that the petitioner could relocate to a part of the country
where he or she would be unlikely to be tortured, evidence of mass violations of human rights within
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No. 09-3277
the country at issue, and any other relevant information regarding conditions in the country of
removal. 8 C.F.R. § 1208.16(c)(3). The burden for a CAT claim is both broader and narrower than
an asylum claim. See Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001) (“Coverage is broader
because a petitioner need not show that he or she would be tortured ‘on account of’ a protected
ground; it is narrower, however, because the petitioner must show that it is ‘more likely than not’
that he or she will be tortured, and not simply persecuted . . . .”) (emphasis added).
ii. Petitioner has not demonstrated that he is eligible for relief
Petitioner’s allegations essentially amount to a fear that he will be a victim of crime upon
return to Guatemala. On the surface, his fear is clearly one of substantial harm, but Petitioner has
not demonstrated nor alleged that the alleged loan shark he fears is targeting Petitioner because of
his membership in a particular social group. Asylum is available only when the alien alleges
persecution on account of a protected group, which in the instant case was apparently a particular
social group, i.e., a well-defined group where members share essentially immutable characteristics
“other than their risk of being persecuted.” Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005).
Criminal acts are not, on their own, sufficient to establish persecution without a nexus to a protected
ground. Lumaj v. Gonzales, 462 F.3d 574, 577-78 (6th Cir. 2006). Therefore, Petitioner has not
demonstrated, either before the immigration judge or on appeal, that he is apparently eligible for
asylum. We find that Petitioner has not shown the required prejudice for his regulatory claim as to
asylum, nor his constitutional claim as to withholding of removal. See Zhao, 569 F.3d at 246 n.10
(Petitioner who cannot establish eligibility for asylum necessarily cannot meet higher burden for
withholding of removal).
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No. 09-3277
In order to seek relief under the Convention Against Torture, an alien may be able to link fear
of being a victim of crime to a viable claim for relief if the harm he would suffer would be either at
the hands of a government official or with the implicit acquiescence of such officials. See 8 C.F.R.
§ 1208.18(a)(1). However, Petitioner made no allegation before the BIA or the immigration judge
that the loan shark he allegedly fears is a government official, nor that the government of Guatemala
is unable or unwilling to protect Petitioner from this criminal act. Instead, Petitioner now argues in
his reply brief that his
. . . position that the Guatemalan government is unable or unwilling to protect him,
is hereby asserted to be implicit in his oral testimony and written submissions. If the
Guatemalan government were neither unable nor unwilling to protect the Petitioner,
it is reasonable to suppose that his fear of removal would, at the least, have been
tempered.
(Appellant’s Reply Br. at 3). Issues raised only in reply are not properly presented to the court.
United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001). However, even if the argument were
properly presented, Petitioner asks this Court to infer that the Guatemalan government is complicit
in this loan shark’s activity simply from the fear alleged by Petitioner before the immigration judge.
Such allegations are not sufficient to support a claim for relief. Petitioner, therefore, has not
established that he is eligible for relief under the Convention Against Torture.
CONCLUSION
In order to find reversible error for the immigration judge’s failure to advise Petitioner of his
statutory rights on either regulatory or constitutional grounds, Petitioner had to demonstrate that the
immigration judge’s error affected the outcome of his removal proceedings. Petitioner has not done
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No. 09-3277
so, and therefore he has not shown that the immigration judge’s error warrants reversal. Therefore,
the petition for review is DENIED.
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