Johan Gonzalez Aquino v. Attorney General United States ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-3317
_______________
JOHAN MANUEL GONZALEZ AQUINO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_______________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
(Agency No. A057-135-446)
Immigration Judge: Mirlande Tadal
_______________
Argued: September 14, 2022
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
(Filed: November 22, 2022 )
_______________
Stephanie E. Norton [ARGUED]
SETON HALL UNIVERSITY SCHOOL OF LAW
CENTER FOR SOCIAL JUSTICE
833 McCarter Highway
Newark, NJ 07102
Counsel for Petitioner
Robert Lundberg [ARGUED]
Sarah Pergolizzi
UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF IMMIGRATION LITIGATION
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
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BIBAS, Circuit Judge.
“No harm, no foul” is usually good law. If someone spots a
flaw in his agency proceeding and asks for a remand, he nor-
mally must show that the flaw prejudiced his outcome. Excep-
tions to this requirement are rare.
Johan Manuel Gonzalez Aquino says the procedural flaws
in his removal hearing qualify for such exceptions. They do
not. Nor did they prejudice the outcome. So we will deny his
petition for review.
I. GONZALEZ AQUINO FACES REMOVAL
Gonzalez Aquino is a citizen of the Dominican Republic
and a lawful permanent resident of the United States. Over the
past decade, he has been convicted of burglary, escape, theft,
trespass, and more. His two most recent convictions, theft and
conspiracy to commit theft, were aggravated felonies and thus
2
made him removable. So the government began removal
proceedings.
Gonzalez Aquino sought to defer his removal under the
Convention Against Torture. He claimed that if he returned to
the Dominican Republic, he would face two separate threats.
First, as a teenager, he got into a gambling dispute with a man
who belonged to a well-known criminal gang. The man threat-
ened to kill him, so he moved to the United States.
Second, while in the United States, Gonzalez Aquino was
arrested for murdering another Dominican. The murder
charges were later dropped, but the damage was done: the mur-
der and arrest had been publicized in the Dominican Republic.
The victim’s family then threatened to kill him if he returned.
After a hearing, the Immigration Judge rejected his argu-
ments, finding that he had not shown that he would likely be
tortured or that the Dominican government would acquiesce to
any torture. The proceedings were less than ideal: the judge
used legal jargon without explaining it, said little about what
evidence he needed to present, and asked few questions. Plus,
the videoconference was malfunctioning: though the judge
could see him, he could not see her. But the Board of Immigra-
tion Appeals still dismissed the appeal.
Gonzalez Aquino now petitions for review, challenging
both the hearing’s procedure and the Board’s substantive deci-
sion. Because he is removable for committing an aggravated
felony, we lack jurisdiction to review the Board’s factual or
discretionary decisions. 8 U.S.C. § 1252(a)(2)(C). But we re-
view its legal conclusions and Gonzalez Aquino’s
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constitutional claims de novo. § 1252(a)(2)(D); Myrie v. Att’y
Gen., 855 F.3d 509, 515 (3d Cir. 2017).
II. ALMOST ALL ERRORS REQUIRE PROOF OF PREJUDICE
Gonzalez Aquino argues that he need not prove that certain
errors prejudiced him. We have held that when an agency vio-
lates “a regulation protecting fundamental statutory or consti-
tutional rights,” we will remand without requiring proof of
prejudice. Leslie v. Att’y Gen., 611 F.3d 171, 180 (3d Cir.
2010). But we have not yet defined what rights are “fundamen-
tal” under this test. It is time to do so.
For most constitutional violations, we ask whether any er-
ror was harmless. Arizona v. Fulminante, 499 U.S. 279, 306–
07 (1991); Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213
(3d Cir. 2017). But in Leslie, we went one step further: we
required automatic remand—regardless of prejudice—for vio-
lations of regulations protecting fundamental rights. Though
we did not define fundamental rights, we were concerned with
rights that, if violated, make an agency proceeding “fundamen-
tally unfair.” Leslie, 611 F.3d at 181. Leslie focused both on
the significance of the right for fair hearings and on the struc-
ture needed to secure the right. See id. at 176, 181 (drawing on
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260,
266–67 (1954), which prevented the Attorney General from
“sidestep[ping] the Board or dictat[ing] its decision”).
Criminal procedure has a direct analogue for Leslie’s ap-
proach: structural errors that make trials fundamentally unfair.
A structural error “ ‘affect[s] the framework within which the
trial proceeds,’ rather than being ‘simply an error in the trial
process itself.’ ” Weaver v. Massachusetts, 137 S. Ct. 1899,
4
1907 (2017) (quoting Fulminante, 499 U.S. at 310). There are
three categories of structural errors. But outside of direct crim-
inal appeals, only one category requires automatic remand. See
id. at 1911–12; Barney v. Adm’r of N.J. State Prisons, 48 F.4th
162, 165 (3d Cir. 2022). That category comprises errors that
“always result[ ] in fundamental unfairness,” such as being de-
nied the right to counsel. Weaver, 137 S. Ct. at 1908.
Leslie also took aim at “fundamental unfairness,” typified
by denial of the right to counsel. 611 F.3d at 181 (internal quo-
tation marks omitted). Leslie involved a regulation requiring
immigration judges to tell aliens of their right to counsel and
to give them a list of pro bono lawyers. 8 C.F.R.
§ 1240.10(a)(2)–(3) (2010). This regulation protects the funda-
mental right to counsel. We held that a violation of that right
so undermines the structure of the hearing that we must auto-
matically remand. Leslie, 611 F.3d at 180–82.
But we have declined to extend Leslie any further. See, e.g.,
FDRLST Media, LLC v. NLRB, 35 F.4th 108, 120–21 (3d Cir.
2022) (requiring proof of prejudice for NLRB venue regula-
tion); B.C. v. Att’y Gen., 12 F.4th 306, 314, 318–19 & n.9 (3d
Cir. 2021) (holding that denying an alien an interpreter preju-
diced the alien and thus violated due process, but declining to
reach the Leslie issue). Our reluctance fits Leslie and Weaver’s
rationale: the question is not just how important the right is in
the abstract, but also whether the violation undermines the
structure of the hearing and necessarily prejudices the
outcome.
So to clarify Leslie, we hold that for a regulation to protect
a fundamental right, a violation must be a structural error that
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necessarily makes proceedings fundamentally unfair. Very few
rights will fit this extraordinary category. By analogy to
Weaver, these include the rights to counsel and to an unbiased
judge. But rights outside this category are not fundamental
enough to trigger Leslie’s “presumption of prejudice.”
Calderon-Rosas v. Att’y Gen., 957 F.3d 378, 390 n.9 (3d Cir.
2020).
III. GONZALEZ AQUINO SHOWS
NO FUNDAMENTAL OR PREJUDICIAL ERROR
Gonzalez Aquino alleges four procedural errors. But none
triggers Leslie’s presumption, and none affected the outcome.
See Serrano-Alberto, 859 F.3d at 213 (describing the required
prejudice).
A. Using jargon neither violated a fundamental right
nor caused prejudice
Gonzalez Aquino claims that the Immigration Judge did not
“explain [the charges] in non-technical language.” 8 C.F.R.
§ 1240.10(a)(6). He is right: in describing his convictions, she
used technical terms like “aggravated felony” and “crimes in-
volving moral turpitude nor [sic] arising out of a single scheme
of criminal misconduct” without explaining them. AR 157–60.
He asserts a fundamental due-process right to have judges ex-
plain jargon, but he cites no authority for that claim. We see no
fundamental right here. Legal jargon has long confused people.
Our system handles this confusion not by banning jargon, but
by guaranteeing the fundamental right to counsel. Plus, jargon
causes problems at discrete points in a hearing rather than un-
dermining the entire hearing’s framework. So the error is not
structural, and Gonzalez Aquino must prove prejudice.
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He does not. Gonzalez Aquino notes a technical misunder-
standing during the hearing. Pet’r’s Br. 14. But in that misun-
derstanding, the judge was substantively right. AR 161. And
Gonzalez Aquino does not dispute that the judge correctly
identified his convictions or that those convictions make him
removable. So he suffered no prejudice.
B. The judge adequately advised Gonzalez Aquino that
he had to present evidence
Gonzalez Aquino next says that the judge told him only
once that he needed to put on evidence and never told him what
specific kind of evidence he needed. A regulation requires im-
migration judges at removal hearings to advise aliens that they
will have a reasonable chance to put on evidence, examine and
object to adverse evidence, and cross-examine government
witnesses. 8 C.F.R. § 1240.10(a)(4). But that requirement goes
to specific pieces of evidence that Gonzalez Aquino failed to
introduce or challenge, not to the framework of the proceeding.
Unlike a violation of the right to counsel, a violation of the
right to present evidence can be addressed on appeal discretely.
Petitioners can identify the evidence they would have put on,
and we can evaluate whether it would have made a difference.
So violations of this right do not trigger Leslie’s presumption
of prejudice.
In any event, the judge here complied with the regulation.
She told Gonzalez Aquino that “you need to provide very spe-
cific details and evidence in support of your claim.” AR 162.
And she specified that “you need to establish that it is more
likely than not that you would be tortured, if not by the gov-
ernment but at the consent, acquiescence or willful blindness
7
of the government if you returned to [the] Dominican Repub-
lic.” Id. This advice satisfied her regulatory duty to tell Gonza-
lez Aquino that he could present evidence.
Gonzalez Aquino complains that the judge should have
done more, but he shows no prejudice. He protests that he
offered to name his persecutors and that he did not know that
his father had not submitted an affidavit. But he knew what
kind of evidence he needed to present. After all, he asked his
father to submit the affidavit. And when the government in-
formed him that the affidavit was not in evidence, he expressed
no surprise that he was able or expected to produce evidence.
Instead, he testified that he “thought it was done.” AR 191. He
also offered a notarized report from his hometown describing
the first threat to his life. This was the kind of specific, relevant
evidence that he needed to present. And at oral argument, coun-
sel could not name anything else that he would have introduced
that might have changed the outcome. Nor did his brief suggest
what difference these additional pieces of evidence would have
made. So even if the judge should have said more, that failure
did not prejudice him.
The government objects that we should not even be consid-
ering this claim because Gonzalez Aquino never exhausted it.
But exhaustion is a low bar. It requires only a basic effort to
inform the Board that a claim exists. Hernandez Garmendia v.
Att’y Gen., 28 F.4th 476, 485 (3d Cir. 2022). He did that here.
In his notice of appeal, he wrote, “I believe that the judge said
that I was credible but did not have enough evidence. I don’t
remember her telling me what kind of evidence I needed or
giving me a chance to explain why I couldn’t get more
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evidence.” AR 124. That statement was enough to notify the
Board and exhaust the claim.
C. The one-way videoconference did not prejudice
Gonzalez Aquino
Next, Gonzalez Aquino points to the lack of two-way video
at his hearing. His detention center’s technology kept failing:
immigration judges could see detainees but not vice versa.
Regulations allow hearing by videoconference but require an
alien’s consent to hold a hearing by telephone. 8 C.F.R.
§§ 1003.25(c), 1229a(b)(2)(B). As Gonzalez Aquino correctly
observes, videoconferencing protects two important interests:
“The Respondent can be seen by those present in the court, and
the Respondent can see those present in the court.” AR 81. By
contrast, a telephonic hearing is purely auditory. As the Immi-
gration Judge could see Gonzalez Aquino, his hearing was a
defective videoconference rather than a telephonic hearing. In
any event, because Gonzalez Aquino does not argue that this
glitch violated a fundamental right, we ask whether he has
shown prejudice. He has not.
He argues that the judge switched the exhibit numbers on
two pieces of evidence—Gonzalez Aquino’s own exhibits—
but does not explain how that harmed him. And he says that
the one-way video made him less coherent and persuasive. Yet
the Immigration Judge found his testimony “credible … candid
and responsive.” AR 130. And he does not point to any mate-
rial argument that he would have made more persuasively. So
the one-way video did not prejudice him either.
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D. The Immigration Judge adequately developed the
record
Gonzalez Aquino also argues that the judge failed in her
duty to develop the record. The parties quibble about how far
this duty extends. Regardless, he has not shown prejudice. He
argues that the judge did not ask enough questions. But the
government’s lawyers developed the record by asking plenty
of questions. Plus, Gonzalez Aquino does not point to any fact
that would have emerged connecting the Dominican govern-
ment to the threats. He also says that the judge should have
considered country-conditions evidence more carefully, but
that evidence would have shown only general corruption and
brutality. Gonzalez Aquino needed to show that conditions
existed that would affect him personally. So this argument fails
too.
IV. THE BOARD CORRECTLY DENIED
GONZALEZ AQUINO’S TORTURE CLAIM
Finally, Gonzalez Aquino argues that the Board substan-
tively erred in analyzing his Convention Against Torture claim.
Although we cannot review factual determinations for most of
Gonzalez Aquino’s appeal, that is not the case for his torture
claim. Grijalva Martinez v. Att’y Gen., 978 F.3d 860, 871 n.11
(3d Cir. 2020). Here, we apply the deferential substantial-evi-
dence standard. Id. The Board needed to answer two questions:
Would he be tortured if he were removed to the Dominican
Republic? And would the Dominican government cause or ac-
quiesce to that torture? Myrie, 855 F.3d at 516. He insists that
the Board ignored key evidence and answered these questions
incorrectly.
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But Gonzalez Aquino failed to meet his burden of proving
government acquiescence. At his hearing, he admitted that he
“d[id]n’t see any reason why the Dominican Republic or the
Dominican government would seek to do [him] any harm if
[he] returned.” AR 192. He did speculate that his persecutors
could have a relationship with the government. But he admitted
that he did not know of any such relationship and had no proof
of one. Because he bore the burden of proof, this admission is
fatal. And it undermines counsel’s speculation at oral argument
that further questioning might have revealed that the criminal
group that threatened him was linked to the government. Gon-
zalez Aquino also says he should have been able to develop the
record on other points. But no elaboration on the dangerous-
ness of his persecutors, the severity of his fear, or the govern-
ment’s corruption can make up for that missing proof of gov-
ernment involvement or acquiescence. So the Board correctly
denied relief.
*****
The Board got it right on the merits: Gonzalez Aquino ad-
mitted that he had no evidence that the Dominican government
would torture him or acquiesce to torture. And he cannot prove
that any procedural error in his hearing prejudiced him. His
only hope is to show that, under Leslie, one of the procedural
errors was structural and necessarily made his hearing funda-
mentally unfair. He cannot. So we will deny his petition for
review.
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