NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 18-1786
________________
MARVIN ORLANDO HERNANDEZ-SILVAS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
________________
On Petition for Review from Reinstated Final Order of Removal
by U.S. Immigration and Customs Enforcement
(Agency No. A098-435-682)
Immigration Judge: John P. Ellington
________________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 8, 2019
Before: AMBRO, KRAUSE, and FUENTES, Circuit Judges
(Opinion filed: April 11, 2019)
________________
OPINION *
________________
FUENTES, Circuit Judge
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
In this petition for review from a reinstated Final Order of Removal, petitioner
Marvin Orlando Hernandez-Silvas challenges the Immigration Judge’s denial of his
application for withholding of removal. Hernandez-Silvas contends that the Immigration
Judge erred by not conducting a “full judicial review” of an Asylum Officer’s
determination that Hernandez-Silvas failed to establish a reasonable fear of persecution
or torture in his country of origin, a prerequisite for withholding of removal. Hernandez-
Silvas contends that the Immigration Judge’s failure to conduct a full review of the
Asylum Officer’s reasonable fear determination violated both his regulatory and
constitutional rights. Because we conclude there was no procedural error by the
Immigration Judge or the Asylum Officer, we will deny Hernandez-Silvas’s petition for
review.
I. Background
Hernandez-Silvas, a native of Honduras, was first removed in 2005 for failure to
have a valid, unexpired visa. He subsequently reentered the country on three separate
occasions, and his 2005 Removal Order was reinstated in 2010 and 2012 pursuant to 8
U.S.C. § 1225(b)(1). Hernandez-Silvas reentered the country for the third time in 2017;
shortly thereafter he was again detained, and the Department of Homeland Security again
reinstated his 2005 Removal Order.
Upon his most recent detention, Hernandez-Silvas expressed a fear of returning to
Honduras and, pursuant to 8 C.F.R. § 241.8(e), was referred to an Asylum Officer for a
hearing to determine if there was “a reasonable possibility [Hernandez-Silvas] would be
2
persecuted or tortured” in his country of removal, 1 a process known as a “reasonable fear
determination.” During the hearing, Hernandez-Silvas testified that he feared to return to
Honduras because he was a business owner, and the gang Batos Locos had demanded he
pay a “monthly tax,” which he refused to do. 2 According to Hernandez-Silvas, he was
targeted because “they thought I had a lot of money.” 3 When asked if he was afraid to
return to Honduras “for any other reason,” Hernandez-Silvas replied, “No.” 4 The
Asylum Officer concluded the hearing with a summary of Hernandez-Silvas’s testimony,
stating, “You believe you were targeted because you were a business owner and they
perceived you as wealthy,” which Hernandez-Silvas affirmed as accurate. 5
The Asylum Officer concluded that Hernandez-Silvas had failed to establish a
reasonable fear of persecution or torture because “Honduran business owners” were not a
distinct social class entitled to withholding of removal. 6 Hernandez-Silvas appealed to
the Immigration Court. There, he contended that the Asylum Officer failed to provide
him an opportunity to explain that he was targeted on the basis of an “imputed political
opinion” because of his father’s mayoral campaign. 7 Based on a “very limited review” of
the record before the Asylum Officer, the Immigration Judge rejected that argument
1
A21.
2
A34.
3
A35.
4
A36.
5
A39.
6
A26.
7
A16.
3
because Hernandez-Silvas had failed to raise it before the Asylum Officer. 8 Hernandez-
Silvas then filed a petition for review in this Court.
II. Discussion 9
Pursuant to the Immigration and Naturalization Act, individuals such as
Hernandez-Silvas who have previously been removed are subject to a “streamlined”
process to reinstate the prior order of removal. 10 The Act provides that “[i]f the Attorney
General finds that an alien has reentered the United States illegally after having been
removed . . . , the prior order of removal is reinstated from its original date and is not
subject to being reopened or reviewed.” 11 Although the Act permits no reopening of the
reinstated order of removal, it expressly provides an exception for withholding of
removal for individuals with a “reasonable fear of persecution or torture” in their
respective countries of removal. 12
Consequently, if an individual expresses a fear of returning to the country
designated in the reinstated removal order, he or she is referred to an Asylum Officer for
8
A17.
9
The Immigration Judge had jurisdiction to review the Asylum Officer’s reasonable fear
determination pursuant to 8 C.F.R. § 208.31; we have jurisdiction over Hernandez-
Silvas’s reinstated Final Order of Removal pursuant to 8 U.S.C. § 1252(a)(1), limited to
constitutional claims and questions of law under 8 U.S.C. § 1252(a)(2)(C)-(D). Bonilla v.
Sessions, 891 F.3d 87, 90 n.4 (3d Cir. 2018). “We exercise plenary review over the IJ’s
conclusions of law, although the agency’s interpretation of the Immigration and
Nationality Act . . . and the regulations it has passed through the power granted to it
under the [Act], are ‘subject to established principles of deference.’” Naul v. Ashcroft,
106 F. App’x 791, 793-94 (3d Cir. 2004) (quoting Coraggioso v. Ashcroft, 355 F.3d 730,
733 (3d Cir. 2004)).
10
Bonilla, 891 F.3d at 90.
11
8 U.S.C. § 1231(a)(5); accord 8 C.F.R. § 241.8(a).
12
8 C.F.R. § 241.8(e).
4
a “reasonable fear determination.” 13 The determination is to be made in a nonadversarial
proceeding, where the individual may be represented by counsel and may present
evidence as to his or her fear of persecution or torture. 14 The Asylum Officer “shall
create a written record of his or her determination,” including a summary of relevant facts
that he or she must review with the individual. 15 Any negative decision by the Asylum
Officer is subject to “review” by an Immigration Judge; if the Immigration Judge concurs
with the Asylum Officer, the case is returned to Citizenship and Immigration Services for
removal. 16
Regarding his reasonable fear determination, Hernandez-Silvas raises two
arguments in his petition for review: first, that the Immigration Judge’s refusal to fully
review the Asylum Officer’s reasonable fear determination violated procedural
regulations; and, second, that that error violated his due process rights. For the reasons
below, neither argument is availing.
A. The Immigration Judge Did Not Violate Procedural Regulations
First, Hernandez-Silvas argues that the Immigration Judge violated Homeland
Security’s regulations by “not holding a full judicial review hearing of the negative
reasonable fear findings of the Asylum Office[r].” 17 In particular, he contends that
“[m]erely relying on the asylum officer’s notes, findings and the transcripts negates the
13
Id. § 208.31(b).
14
Id. § 208.31(c).
15
Id.
16
Id. § 208.31(g).
17
Pet. Br. at 9.
5
entire review process as provided” by the regulations. 18 The Government responds that
the relevant regulation “explicitly defines the respective jurisdictions of asylum officers
and Immigration Judges,” nowhere requiring the Immigration Judge to conduct a full
review of the Asylum Officer’s recommendation. 19
The Government is correct with respect to this issue, because the Immigration
Judge is granted “jurisdiction” only to conduct a limited “review” of the Asylum
Officer’s reasonable fear determination. The regulations enact this limited jurisdiction
through two separate provisions.
First, the regulations provide that the Asylum Officers have “exclusive jurisdiction
to make reasonable fear determinations” and that the Immigration Judges have “exclusive
jurisdiction to review such determinations.” 20 The assignment of limited jurisdiction to
the Immigration Judge and the Asylum Officer “allow[s] for the fair and expeditious
resolution of . . . claims [for withholding of removal] without unduly disrupting the
streamlined removal processes applicable to these aliens.” 21
Second, the scope of the Immigration Judge’s jurisdiction is limited by the
regulations to review of the record before the Asylum Officer in arriving at a “negative
decision.” 22 The Immigration Judge’s review of a negative fear determination is to
18
Id. at 20.
19
Resp. Br. at 18.
20
8 C.F.R. § 208.31(a) (“USCIS has exclusive jurisdiction to make reasonable fear
determinations, and EOIR has exclusive jurisdiction to review such determinations.”).
The United States Citizenship and Immigration Services (“USCIS”) includes the Asylum
Officers, id. § 208.9(a), and the Executive Office for Immigration Review (“EOIR”)
includes the Immigration Judges, id. 1003.9(a).
21
64 Fed. Reg. 8478, 8479.
22
8 C.F.R. § 208.31(g).
6
encompass “the asylum officer’s notes, the summary of the material facts, and other
materials upon which the determination was based.” 23 In contrast, if the Asylum Officer
determines that the individual has a reasonable fear of persecution or torture, the
Immigration Judge is to provide a “full consideration of the request for withholding of
removal.” 24 Consequently, the regulations envision that the Immigration Judge’s review
of a “negative” reasonable fear determination is limited. Further, the Immigration Court
Practice Manual instructs that additional evidence may be introduced only “at the
discretion of the Immigration Judge.” 25 That instruction is consistent with the
regulations’ intent in providing “streamlined” proceedings for reasonable fear
determinations. 26 Thus, the Immigration Judge did not err by relying only on the record
before the Asylum Officer.
Hernandez-Silvas further argues that “full judicial review” by the Immigration
Judge was necessitated by a number of errors committed by the Asylum Officer.
Specifically, Hernandez-Silvas contends that the Asylum Officer “did not let him explain
23
Id.
24
Id. § 208.31(e).
25
Executive Office for Immigration Review, Department of Justice, Immigration Court
Practice Manual, ch. 7.4(e)(iv)(E), available at https://www.justice.gov/eoir/office-chief-
immigration-judge-0. Although agency “interpretations contained in policy statements,
agency manuals, and enforcement guidelines . . . lack the force of law [and] do not
warrant Chevron-style deference,” they are nonetheless “‘entitled to respect’ . . . to the
extent that those interpretations have the ‘power to persuade.’” Christensen v. Harris
County, 529 U.S. 576, 587 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
26
Bonilla v. Sessions, 891 F.3d 87, 90 (3d Cir. 2018); Bartolome v. Sessions, 904 F.3d
803, 807 (9th Cir. 2018) (“[R]easonable fear proceedings are to be streamlined, not
intended to have full evidentiary hearings, because the alien continues to be subject to the
expedited removal process used for previously removed aliens with reinstated orders of
removal.”).
7
and then failed to inquire further into” his claim that he was targeted because of his
father’s mayoral campaign. 27 He also claims that the “translator was continually cut off”
and that the “asylum office[r] did not provide a full an[d] accurate summary of the
transcripts.” 28 The Government responds that “nothing in the record supports
Hernandez-Silvas’ claim.” 29
The Government is correct that nothing in the record supports a claim that the
Asylum Officer or translator erred. Although we have held that a “decisionmaker must
‘actually consider the evidence and argument that a party presents,’” 30 an agency is
nonetheless “entitled to a presumption of regularity.” 31 Consequently, Hernandez-Silvas
bears the burden of showing irregularity by the Asylum Officer. 32
He has failed to carry that burden. There is no evidence in the record that the
Asylum Officer did not permit Hernandez-Silvas to explain his father’s mayoral
campaign, that the translator was cut off, or that the transcripts were inaccurate. Further,
after Hernandez-Silvas testified that he had been targeted by Batos Locos because of his
business, the Asylum Officer asked him, “Beside[s] what we have already discussed, are
you afraid to return to your country for any other reason?” 33 Hernandez-Silvas replied,
27
Pet. Br. at 18-19.
28
Id. at 19.
29
Resp. Br. at 16.
30
Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (quoting Llana-Castellon v. INS,
16 F.3d 1093, 1096 (10th Cir. 1994)).
31
Id. at 550 (quoting McLeod v. INS, 802 F.2d 89, 95 n.8 (3d Cir. 1986)).
32
Cf. id. (quoting McLeod, 802 F.2d at 95 n.8) (“Abdulai bears the burden of proving that
‘the BIA did not review the record when it considered the appeal.’”).
33
A36.
8
“No.” 34 The Asylum Officer also asked Hernandez-Silvas if he was targeted because of
his political beliefs, which he denied. 35 The Asylum Officer then summarized the
hearing, stating, “You believe you were targeted because you were a business owner and
they perceived you as wealthy,” which Hernandez-Silvas affirmed as accurate. 36
The record shows that Hernandez-Silvas had every opportunity to present his
claim to the Asylum Officer. There is no basis in the record to conclude that the
reasonable fear proceedings before that Officer were marred by irregularities.
B. Hernandez-Silvas’s Due Process Claim Is Meritless
Next, Hernandez-Silvas argues that the Immigration Judge’s “failure to comply
with the regulation governing [his] right to have the [Judge] properly review his negative
reasonable fear determination” violated his due process rights. 37 In response, the
Government contends that, “because the agency did not fail to abide by the applicable
regulations . . . it follows that Hernandez-Silvas’[s] due process claim is meritless.” 38
The Government is correct with respect to this issue.
Individuals in removal proceedings are guaranteed due process. 39 In removal
proceedings, the “fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner.” 40 That fundamental requirement
entitles an individual in removal proceedings to the right to “factfinding based on a
34
Id.
35
A37.
36
A39.
37
Pet. Br. at 21.
38
Resp. Br. at 21.
39
Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).
40
Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
9
record produced before the decisionmaker” and disclosed to the individual, the right to
“make arguments on his or her own behalf,” and the right to “an individualized
determination” of his or her case. 41 “The failure of an agency to follow its own
regulations is not, however, a per se denial of due process unless the regulation is
required by the [C]onstitution or a statute.” 42
Hernandez-Silvas’s due process argument fails for two reasons. First, he has
failed to establish that either the Immigration Judge or the Asylum Officer violated any
regulation, and second, he has failed to show that those regulations are required by statute
or the Constitution. We thus reject Hernandez-Silvas’s argument with respect to this
issue.
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
41
Id. (quoting Llana-Castellon v. INS, 16 F.3d 1093, 1096 (10th Cir. 1994) (internal
citations omitted)).
42
Leslie v. Att’y Gen., 611 F.3d 171, 179 (3d Cir. 2010) (quoting Arzanipour v. INS, 866
F.2d 743, 746 (5th Cir. 1989)).
10