PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 20-3211
________________
ORLANDO ERNESTO HERNANDEZ GARMENDIA,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA
________________
On Petition for Review of an
Order of the Board of Immigration Appeals
(A209-346-841)
Immigration Judge: Tamar H. Wilson
________________
Submitted under Third Circuit L.A.R. 34.1(a)
December 13, 2021
Before: GREENAWAY, JR., KRAUSE, and PHIPPS, Circuit
Judges
(Opinion filed: March 16, 2022)
Stuart M.L. Altman
Suite 3g
2 Allen Street
New York, NY 10002
Petitioner
Merrick Garland
Patricia E. Bruckner
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Appellee
OPINION
GREENAWAY, JR., Circuit Judge
I
Petitioner Orlando Ernesto Hernandez Garmendia seeks
review of the denial of his application for asylum, withholding
of removal, and protection under the Convention Against
Torture (“CAT” or “torture convention”). He argues both that
he is eligible for relief on the merits, and that the underlying
proceedings were tainted by due process violations. We hold
that substantial evidence supports the denial of relief by the
2
Immigration Judge (“IJ”) and subsequent affirmance by the
Board of Immigration Appeals (“BIA” or “Board”). We also
hold that his due process rights were not violated during the
removal proceedings. We will deny this petition for review.
II
Hernandez Garmendia testified that he entered the
United States for the first time on February 23, 2017.1 On
November 13, 2019, the Department of Homeland Security
arrested Hernandez Garmendia after identifying him as an
active MS-13 gang member. He initially appeared pro se at a
removal hearing on December 10, 2019. After the IJ granted a
continuance for Hernandez Garmendia to secure counsel, he
appeared before the IJ again on December 31, 2019, without
counsel. Nevertheless, that day, Hernandez Garmendia stated
to the court that he was ready to proceed without counsel, and
he had “no” mental health issues. The IJ then explained to
Hernandez Garmendia, in detail, his procedural rights during
the removal proceedings. Hernandez Garmendia stated he
understood the rights that the court had explained to him.
Based on the evidence presented, the IJ found
Hernandez Garmendia removable, but permitted him to file for
asylum, withholding of removal, and CAT protections. While
still in custody, and now represented by counsel, Hernandez
Garmendia filed an application for asylum and withholding of
removal. A native of El Salvador, his application asserted his
eligibility for relief based on membership in a particular social
1
The Department of Homeland Security submitted exhibits
showing that Hernandez Garmendia had previously been
returned to El Salvador in 2016.
3
group, political opinion, and the torture convention. By the
time of his merits hearing a few months later, Hernandez
Garmendia’s counsel had withdrawn, and he once again
represented himself pro se.
During the merits hearing, Hernandez Garmendia
confirmed that he wanted to proceed pro se. He testified that
he came to the United States “because of some issues that [his]
relatives, and specifically, [his] uncle had with someone.”
A.R. 104. He explained that in 2012, an unknown person shot
his uncle because of a “rivalry or animosity . . . between them.”
A.R. 104-105, 109. Despite this shooting, Hernandez
Garmendia testified that his uncle, his uncle’s wife, and his
grandfather still live in the same home and that no one had
since threatened him or his family. When questioned about
inconsistencies with his application, Hernandez Garmendia
stated that he “just d[id]n’t remember” and that he had “issues
remembering things apparently.” A.R. 116.
This statement touched off a brief colloquy between the
IJ and Hernandez Garmendia about the asserted memory
issues. The IJ inquired as to why Hernandez Garmendia had
alleged memory issues, and Hernandez Garmendia speculated
that it could be because of a prior nose surgery, though he did
not know how the surgery could affect his memory. Hernandez
Garmendia also raised the possibility of epilepsy, but admitted
that he had never received such a diagnosis. Hernandez
Garmendia did not press the political opinion or torture
grounds during the merits hearing despite checking those
boxes in his initial application.
After the merits hearing, the IJ issued an oral decision
denying Hernandez Garmendia’s application for asylum,
4
withholding of removal, and CAT protections and ordering
him removed to El Salvador. As an initial matter, the IJ found
that Hernandez Garmendia’s application was untimely because
he failed to show that an exception to the one-year requirement
applied in his case. The IJ next found that Hernandez
Garmendia’s testimony was not credible because it was both
internally inconsistent and implausible. The IJ explained that
Hernandez Garmendia’s testimony that he was only a look-out
and able to exit the MS-13 gang by simply asking to do so was
“completely inconsistent with the operations of MS-13.” A.R.
45. Also, despite checking the box for political opinion and
membership in a particular social group, the IJ found that “no
social group was stated in the application or subsequently . . .
on the record, and no social group can be inferred from the
testimony.” A.R. 47. After making this credibility
determination, the IJ found no past persecution. She also found
no well-founded fear of future persecution, because Hernandez
Garmendia failed to show that he would be both individually
targeted and targeted based on a protected ground.
The BIA conducted its own analysis and affirmed the
IJ’s determinations. It noted that Hernandez Garmendia did
not contest the IJ’s determination that he had suffered no past
persecution and was therefore not entitled to a presumption of
a well-founded fear of future persecution. Likewise, the Board
concluded that Hernandez Garmendia had forfeited his
political opinion ground for asylum, because he did not
challenge the IJ’s finding on appeal. Although the BIA
concluded that Hernandez Garmendia failed to articulate a
particular social group before both the IJ and on appeal, it
reasoned that even if the Board construed his stated fears as a
family-based asylum claim, the IJ properly found that he failed
to establish that fears of future harm would be on account of a
5
protected ground. Because Hernandez Garmendia failed to
establish a right to asylum, the Board next concluded that he
failed to meet the higher bar for withholding of removal. As
to CAT protection, the BIA concluded that Hernandez
Garmendia was not entitled to relief because he failed to
present evidence that he would more likely than not be tortured
if removed.
Lastly, the Board also reviewed Hernandez
Garmendia’s argument on appeal that the immigration court
proceedings had violated his right to due process. It concluded
that the IJ did not violate his due process rights by failing to
develop the record or provide a fundamentally fair hearing.
Hernandez Garmendia then petitioned this Court for review.
We now deny his petition.
III
The BIA has appellate jurisdiction over immigration
judge decisions in removal proceedings pursuant to 8 C.F.R.
§§ 1003.1(b)(3) and 1240.15. We have exclusive jurisdiction
to review a final order of the Board pursuant to 8 U.S.C. §
1252(a).
This Court will uphold Board determinations “if they
are ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” Guo v.
Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)). We reverse these
determinations only if “the evidence not only supports [a
contrary] conclusion, but compels it.” Elias-Zacarias, 502
U.S. at 481 n.1. Challenges to factual matters will likewise be
6
reviewed for substantial evidence. Thayalan v. Att’y Gen., 997
F.3d 132, 137 (3d Cir. 2021) (citation omitted). These
administrative findings “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). Where, as here, the BIA expressly
adopts the reasoning of the IJ in issuing its own decision on the
merits, we may review both decisions. Zhi Fei Liao v. Att’y
Gen., 910 F.3d 714, 718 (3d Cir. 2018).
We review de novo underlying determinations of
constitutional due process claims. Fadiga v. Att’y Gen., 488
F.3d 142, 153-54 (3d Cir. 2007) (discussing the standard of
review for claims grounded in Fifth Amendment rights arising
in immigration proceedings).
IV
a. Substantial Evidence Supports the Finding that
Petitioner Failed to Establish Eligibility for Asylum,
Withholding of Removal, and Convention Against
Torture Relief.
i. Asylum
The Attorney General may, in the Attorney General’s
discretion, grant asylum to a noncitizen who qualifies as a
refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). See
8 U.S.C. § 1158(b)(1). A refugee is a noncitizen who is outside
of their native country, or the country where they habitually
resided, and is unable or unwilling to return and avail
themselves of the protections of that country, because of a
“well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
7
political opinion.” 8 U.S.C. § 1101(a)(42)(A). Noncitizen-
applicants bear the burden of proving eligibility for asylum. 8
U.S.C. § 1158(b)(1)(B)(i). They can do so in two ways: (1)
proving past persecution on account of a protected ground,
which creates a rebuttable presumption of a well-founded fear
of future persecution, or (2) proving a well-founded fear of
future persecution on account of a protected ground without
regard to past persecution. 8 C.F.R. § 1208.13(b).
Relief based on past persecution requires noncitizens to
establish that they: (1) were targeted for mistreatment on
account of a protected ground, (2) the mistreatment rose to the
level of persecution, and (3) the persecution was committed by
the government or forces the government is unable or
unwilling to control. Thayalan, 997 F.3d at 138 (citation and
internal quotation marks omitted). In the absence of past
persecution, a noncitizen may receive relief based on “showing
a ‘reasonable possibility’ of future persecution on account of a
protected ground.” Id. (citations omitted). The noncitizen’s
fear of future persecution must be subjectively genuine and
objectively reasonable. Ying Chen v. Att’y Gen., 676 F.3d 112,
115 (3d Cir. 2011) (citation omitted).
As a threshold matter, Hernandez Garmendia appeals
neither the IJ’s determination that his application for asylum
was untimely, nor the Board’s assuming timeliness for
purposes of its analysis. See generally Pet. Br.; see also A.R.
46. Hernandez Garmendia also does not challenge the IJ’s
determination that his testimony was not credible because it
lacked evidence and was implausible and inconsistent. See
generally Pet. Br.; see also A.R. 46. These omissions
notwithstanding, we will review the merits of the asylum claim
that were addressed by the IJ and BIA. Green v. Att’y Gen.,
8
694 F.3d 503, 507-08 (3d Cir. 2012) (reviewing IJ and BIA
points of analysis that were assumed arguendo).
We next turn to the determinations on the merits, which
Hernandez Garmendia challenges in his petition for review.
Hernandez Garmendia asserted in his asylum application that
he was eligible for relief on the basis of political opinion and
membership in a particular social group.2 The IJ found that
there was no past persecution against Hernandez Garmendia
on these grounds, and then concluded that he had also not
established a well-founded fear of future harm. Although the
IJ did not explain her finding of no past persecution, she
explained that Hernandez Garmendia failed to show that he
will be individually targeted by a person on account of a
protected ground if removed to El Salvador. On review, the
Board agreed with the IJ on both the lack of past persecution
and no well-founded fear of future persecution. 3 We conclude
that the record supports these determinations.
An asylum claim requires a nexus between the alleged
protected grounds and the feared or past persecution. Such a
nexus entails showing an alleged persecutor’s motive, that the
2
Hernandez Garmendia also indicated on this application that
he was seeking asylum or withholding of removal based on the
Convention Against Torture. We address this basis for relief
in Section IV(a)(iii).
3
The Board deemed waived challenges to the IJ’s
determination that Hernandez Garmendia had not suffered past
persecution and to the IJ’s determination with regard to future
persecution based on political opinion.
9
persecutor knows or believes that the applicant possesses the
protected characteristic, and that this knowledge or belief
motivates the harm feared. Elias-Zacarias, 502 U.S. at 482-
83. Here, Hernandez Garmendia did not establish a nexus
between his alleged protected grounds and his fear of
persecution if removed to El Salvador. Even assuming for the
sake of argument that he mounted a family-based asylum
claim, Hernandez Garmendia did not show that any fear of
future harm would be on account of a protected ground.4
Hernandez Garmendia could neither identify the
individual who shot his uncle and whether the shooter was in a
gang, nor provide a reason why his uncle was shot. There is
also no evidence in the record that the shooter was a public
official or member of “forces the government is . . . unable or
unwilling to control.” Thayalan, 997 F.3d at 138 (quoting Doe
v. Att’y Gen., 956 F.3d 135, 141-42 (3d Cir. 2020)). While
Hernandez Garmendia expressed concern about a “rivalry or
animosity” between his uncle and the shooter that could lead
to him also being harmed, neither he nor anyone in his family
had been threatened since the 2012 shooting. A.R. at 105.
Lastly, Hernandez Garmendia’s grandfather, his uncle
who was shot, and his aunt still reside unharmed in the country.
They even reside in the same home where the shooting
4
The BIA presumed that Hernandez Garmendia’s family-
based claim would be premised on his uncle’s shooting and
alleged prior threats against his family members because the
family refused to participate in illicit activities. The Board
reasoned that this family-based, particular social group claim
would nonetheless fail because there was no nexus between the
group and the alleged fear.
10
occurred. These facts undermine Hernandez Garmendia’s
claimed fear of future persecution.
We conclude that “reasonable, substantial[,] and
probative evidence on the record [considered as] a whole”
supported the agency’s finding that Hernandez Garmendia
failed to establish eligibility for asylum relief. Khan v. Att’y
Gen., 691 F.3d 488, 496 (3d Cir. 2012) (citation and internal
quotation marks omitted).
ii. Withholding of Removal
An even more stringent standard than asylum,
withholding of removal requires noncitizens to show that it is
“more likely than not” that they will suffer persecution on
account of a protected ground. Shardar v. Ashcroft, 382 F.3d
318, 324-25 (3d Cir. 2004); see also 8 U.S.C. § 1231(b)(3)(A).
As we have concluded that Hernandez Garmendia failed
to prove eligibility for asylum, we now also conclude, a
fortiori, that the more stringent standard for withholding of
removal has also not been met. Shardar, 382 F.3d at 324
(“Having concluded substantial evidence supports the BIA’s
denial of asylum, we conclude that withholding of removal was
also properly denied.”).
iii. Convention Against Torture
Regulations implementing CAT protections prohibit
removing a noncitizen to a country where the person is “more
likely than not” to be “tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2). To sustain this
relief, a noncitizen must show that, if removed to the proposed
11
country, they will be tortured by or with the consent or
acquiescence of a public official. 8 C.F.R. § 1208.18(a)(1).
The specter of torture must be supported by specific evidence
that the individual applicant is more likely than not to be
singled out. Denis v. Att’y Gen., 633 F.3d 201, 218 (3d Cir.
2011). On appeal, Hernandez Garmendia argues that the IJ
erred when she “did not state what if any evidence the
Petitioner should have provided” “to support that he is more
likely than not going to be tortured if he returns to El
Salvador.” Pet. Br. at 19. This argument is meritless.
The IJ made several findings in support of the denial of
CAT protection for Hernandez Garmendia. She explained that
Hernandez Garmendia did not know who would torture him; it
was unclear whether the feared harm, if it occurred, would be
at the hands or with the acquiescence of the government; there
was a lack of objective evidence establishing that objective
grounds existed for protection; and that he made only
generalized statements insufficient to show that harm would
more likely than not result if returned to El Salvador. A.R. at
47-48. The record before us in no way supports a contrary
result (i.e., granting CAT protection), let alone compels one.
See Thayalan v. Att’y Gen., 997 F.3d at137 (relying on
Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020)); 8 U.S.C. §
1252(b)(4)(B).
b. Petitioner’s Due Process Claims Lack Merit.
Regardless of a person’s citizenship status, “‘all persons
within the territory of the United States are entitled to the
protection’ of the Constitution.” Zadvydas v. Davis, 533 U.S.
678, 694 (2001) (quoting Wong Wing v. United States, 163
U.S. 228, 238 (1896)). These protections include due process
12
for noncitizens during removal proceedings. Kamara v. Att’y
Gen., 420 F.3d 202, 211 (3d Cir. 2005). This due process
guarantee entitles a noncitizen to: “(1) factfinding based on a
record produced before the decisionmaker and disclosed to him
or her; (2) the opportunity to make arguments on his or her own
behalf; and (3) an individualized determination of his [or her]
interests.” Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213
(3d Cir. 2017) (citation and internal quotation marks omitted).
Although as a general matter, claims in a petition for
review must have been exhausted before the Board, Zhi Fei
Liao, 910 F.3d at 718, “exhaustion of administrative remedies
is not always required when the petitioner advances a due
process claim.” Khan v. Att’y Gen., 448 F.3d 226, 236 n.8 (3d
Cir. 2006) (citations omitted). In either circumstance, the
noncitizen claiming a breach of the entitled protections also
bears the burden of showing that the alleged breach caused
actual prejudice. Morgan v. Att’y Gen., 432 F.3d 226, 234-35
(3d Cir. 2005).
i. Hernandez Garmendia’s Due Process
Claims Were Exhausted.
The Government argues primarily that Hernandez
Garmendia failed to exhaust his due process claims because he
did not raise them before the IJ or the Board. Although we
ultimately agree that the immigration proceedings did not
violate Hernandez Garmendia’s constitutional rights, we first
hold that these claims were exhausted and therefore within our
jurisdiction to review.
We have stated that the exhaustion requirement is not
applied “in a draconian fashion.” Zhi Fei Liao, 910 F.3d at 718
13
(quoting Lin v. Att’y Gen., 543 F.3d 114, 121 (3d Cir. 2008)).
Instead, the policy is “liberal” and a noncitizen “need not do
much to alert the Board that he is raising an issue . . . [s]o long
as an immigration petitioner makes some effort, however
insufficient, to place the Board on notice of a straightforward
issue being raised on appeal, a petitioner is deemed to have
exhausted [his] administrative remedies.” Id. (alterations in
original) (citations omitted).
Here, Hernandez Garmendia alerted the IJ to his “issues
remembering things.” A.R. at 116. Hernandez Garmendia
suspected that a past “nose surgery” “affected [his] memory”
and also stated that on one occasion he experienced “an
epilepsy attack,” though he had never been diagnosed with the
condition. A.R. at 116-17. On appeal, the Board’s ruling
addressed due process arguments that Hernandez Garmendia
raised in briefing to the Agency. The Board explained the
arguments in this briefing as alleging violations of “his due
process rights by not developing the record, not providing a
fundamentally fair hearing, and denying his claim for
protection under the Convention Against Torture.” J.A. I at 7.
The Board’s decision, therefore, shows that the due process
arguments were also raised and addressed during agency
proceedings.
Yet, independent of the Board’s decision, our case law
supports holding that these arguments were adequately raised
before the IJ and do not erect a barrier to our review. The claim
that Hernandez Garmendia lacked the capacity to participate in
the immigration proceedings sounds in constitutional due
process and may be exempt from exhaustion before the BIA or
IJ. We long ago “recognized that the exhaustion of
administrative remedies is not always required when the
14
petitioner advances a due process claim.” Sewak v. I.N.S., 900
F.2d 667, 670 (3d Cir. 1990) (citation omitted). But, even if
this exception were to apply, it would not aid Hernandez
Garmendia because the immigration court did everything
required to ensure that his immigration proceedings comported
with due process obligations.
ii. The Immigration Judge Appropriately
Developed the Record.
In his first due process claim, Hernandez Garmendia
argues that the IJ failed to develop the record because she did
not ask certain questions when there was a duty to do so.
Specifically, Hernandez Garmendia takes issue with not being
asked: (1) to identify a particular social group or political
opinion, (2) why he feared harm or persecution if removed to
El Salvador, and (3) why he did not demonstrate eligibility for
asylum if his testimony was assumed credible.5 To quite the
contrary, the hearing transcript unambiguously shows that the
IJ made these inquiries.
Among other questions, at the April 16, 2020 hearing,
the IJ asked Hernandez Garmendia: “why [he came] to the
United States,” “who shot [his] uncle” and “why [that person]
shot [his] uncle,” “why [Hernandez Garmendia was] afraid that
the same thing will happen to [him],” and whether “anyone
threatened anyone in [his] family with harm” or if “[he himself
had] been threatened.” A.R. at 104-10. When asked why he
came to the United States, Hernandez Garmendia responded,
“[B]ecause of some issues that my relatives, and specifically,
5
We note, again, that the IJ found Hernandez Garmendia’s
testimony not credible.
15
my uncle had with someone.” A.R. at 104. These questions in
the hearing transcript belie Hernandez Garmendia’s claim that
the IJ failed to ask necessary questions to develop the record.
To the extent that the IJ did not press the political opinion
claim, the record supports that Hernandez Garmendia did not
raise this claim at the hearing.
Thus, the hearing transcript shows that with respect to
this first alleged due process violation, the removal
proceedings comported with the immigration court’s
constitutional and regulatory obligations. Leslie v. Att’y Gen.,
611 F.3d 171, 181 (3d Cir. 2010) (“[Noncitizens] in removal
proceedings are entitled to Fifth Amendment Due Process
protection, which guarantees them a fundamentally fair
removal hearing.”) (citation omitted); see also 8 U.S.C. §
1229a.
c. The Record Supports that Petitioner Was
Sufficiently Competent to Participate in the
Proceedings Without Special Safeguards.
In his second due process claim, Hernandez Garmendia
argues that the IJ should have conducted a Matter of M-A-M-
hearing. We disagree.6
Participants in removal proceedings are presumed
competent, and an immigration judge need not review a
noncitizen’s competency “[a]bsent indicia of mental
incompetency.” Matter of M-A-M-, 25 I. & N. Dec. 474,
6
We limit our discussion to the particular issue raised by
Hernandez Garmendia (i.e., the circumstances in which a
Matter of M-A-M- hearing is warranted).
16
477(BIA 2011). In Matter of M-A-M-, the BIA established a
three-part test to determine whether a noncitizen is mentally
incompetent when the IJ is presented with indicia of
incompetency. Id. at 484. This test asks whether the
noncitizen: “has a rational and factual understanding of the
nature and object of the proceedings, can consult with the
attorney or representative if there is one, and has a reasonable
opportunity to examine and present evidence and cross-
examine witnesses.” Id. at 479. Only if the individual presents
indicia of incompetency and the IJ determines that the
individual lacks sufficient competency is a duty triggered to
impose safeguards on the proceedings. Id. at 481-83.
Indicia of incompetency may arise from the behavior of
the individual, or from record evidence of mental illness and
incompetency. Id. at 477-80. As to behavior, the BIA
explained in Matter of M-A-M- that this indicator could include
a “high level of distraction,” or an inability to respond to
questions or to stay on topic. Id. at 479.
Here, not only were there no indicia of mental
incompetency, Hernandez Garmendia engaged in a responsive
and appropriate colloquy with the judge, consulted with
counsel, and presented evidence on his behalf. He had legal
counsel at some points during his removal proceedings, but
also affirmed that he was able to represent himself and
understood the rights the court explained to him. Transcripts
of Hernandez Garmendia’s hearings show him interacting with
the IJ without difficulty understanding the questions as they
were posed. To this end, he gave substantive testimony to
support his claim of eligibility for asylum, withholding of
removal, and CAT protections. The administrative record also
shows that Hernandez Garmendia denied any mental health
17
issues and any past diagnoses of medical issues related to
memory.
The hearing transcripts show that Hernandez
Garmendia presented no indicia of incompetency. Therefore,
greater scrutiny and procedural safeguards were not warranted
and there was no error by the IJ for failing to engage in that
scrutiny or impose additional safeguards.
V
For the foregoing reasons, we will deny the petition for
review.
18