Alexander-Mendoza v. Attorney Gen. United States

Citation55 F.4th 197
Decision Date02 December 2022
Docket Number21-2322 & 21-3089
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

55 F.4th 197


No. 21-2322 & 21-3089

United States Court of Appeals, Third Circuit.

Argued: June 28, 2022
Filed: December 2, 2022

Valentine A. Brown, Ryan F. Monahan [Argued], Duane Morris, 30 South 17th Street, Philadelphia, PA 19103, Counsel for Petitioner

Jeffrey M. Hartman [Argued], Jessica Dawgert, Margot P. Kniffin, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: JORDAN, PORTER, and PHIPPS, Circuit Judges.


PHIPPS, Circuit Judge.

These consolidated petitions both concern the validity of a detained alien's waiver of an administrative appeal in a removal proceeding. The alien's initial counsel withdrew, and the alien represented himself at the merits hearing on his requests for relief from removal. After denying the alien's requests and ordering the alien's removal, the Immigration Judge informed the alien that he had a right to administratively appeal the removal order to the Board of Immigration Appeals and that the right could be waived. Following a brief break, the alien waived that right, testifying that he would rather be deported than remain in custody. But then days afterward, the alien filed a pro se notice of appeal. Later, in a brief filed with the BIA by pro bono counsel, the alien disputed the order of removal.

The BIA issued an order dismissing the administrative appeal. It determined that the waiver of an administrative appeal was valid, and on that basis, it enforced the appellate waiver.

The alien then filed a motion for reconsideration with the BIA. He argued that the waiver was invalid for several reasons. The BIA issued an order denying that motion.

Through separate petitions, which have been consolidated in this case, the alien challenges the BIA's two orders. Because the administrative record does not compel the conclusion that the alien's waiver was invalid, and because the BIA did not abuse its discretion in denying the alien's motion to reconsider, both petitions will be denied.



As a teenager, Ivis Alexander Mendoza-Cloters (‘Mendoza’) worked as an auto mechanic in his native city of El Progeso, Honduras. Two gangs in that city recruited him, and he rebuffed those efforts for years. But after he lost his job, one of the gangs, MS-13, would intercept him on his way to the store and beat him with a machete handle for 13 minutes at a time.

55 F.4th 201

That period of nearly daily beatings occurred between 2000 and 2001.

To escape and also to find employment, Mendoza entered the United States in 2002 at age 18 without inspection or parole. He settled in New Jersey, where he had family.

Between 2004 and 2008, he was arrested three separate times and charged with several crimes: burglary, criminal mischief, harassment, making terroristic threats, and unlawful possession of a weapon. Those charges stemmed from domestic issues with his then-girlfriend. Although most of those charges were eventually dismissed, Mendoza was convicted of criminal mischief.

In May 2008, while Mendoza was in the Middlesex County Jail, Immigration and Customs Enforcement agents found him and initiated removal proceedings against him. Later that year, Mendoza accepted voluntary departure and returned to his country of citizenship, Honduras.

His homecoming to El Progreso did not go well. The MS-13 gang robbed him, stabbed him, and broke his nose.

Mendoza again illegally entered the United States in October 2009 and returned to New Jersey. He found work as an auto mechanic and this time did not catch the attention of the authorities for over a decade. But in August 2020, after a domestic disturbance at his house with his girlfriend at the time, he was arrested and charged with simple assault. That charge alerted immigration authorities to his illegal presence, and he was held in custody on an immigration detainer. The next month, the Department of Homeland Security served Mendoza with a Notice to Appear thus charging him as removable for entering without inspection or parole. See 8 U.S.C. § 1182(a)(6)(A)(i). Included with the Notice to Appear were lists of pro bono immigration legal services providers in his region.



Mendoza's removal proceedings involved hearings on four dates between October 2020 and January 2021. Before the first hearing, an attorney entered an appearance on Mendoza's behalf in Immigration Court.

The initial hearing was a master calendar hearing before an Immigration Judge in Falls Church, Virginia. Mendoza appeared through a video link from the facility where he was detained, and his counsel appeared telephonically – as they each would do for every subsequent hearing that they attended. After inquiring about which language Mendoza understood best, the Immigration Judge, through a Spanish language interpreter, asked Mendoza whether the attorney appearing on his behalf represented him and was authorized to speak on his behalf. Mendoza responded affirmatively. From there, his counsel asked for a continuance, which the Immigration Judge granted.

During that continuance, Mendoza, through his attorney, made two filings. Using a Form I-589, he applied for several forms of relief from removal: asylum, statutory withholding of removal, and protection under the Convention Against Torture. He also moved for release on bond and attached statements from three persons who endorsed his good character.

The case resumed before an Immigration Judge in York, Pennsylvania. At the next hearing, Mendoza, through counsel, conceded removability and informed the Immigration Judge that he would pursue only relief from removal. That same day, in a hearing on Mendoza's bond motion, a dispute arose between Mendoza's attorney and DHS counsel over the extent of Mendoza's

55 F.4th 202

criminal history. Mendoza's attorney stated that Mendoza had only the arrest related to the recent domestic disturbance, but the DHS attorney identified past arrests and the conviction for criminal mischief. To resolve that issue, the Immigration Judge questioned Mendoza, who admitted to the recent arrest for domestic violence, as well as his other arrests and charges between 2004 and 2008. With those additional details, the Immigration Judge denied Mendoza release on bond because he failed to establish that he was not a danger to the community.

After that hearing, Mendoza's counsel moved to withdraw from representation. That motion explained that counsel had a conversation with Mendoza and his family, and that Mendoza wished to proceed pro se .

The next hearing was supposed to be the merits hearing to address Mendoza's application for relief from removal. Mendoza's counsel attended, but Mendoza could not participate – even by video teleconference – due to a COVID-19 quarantine order at his detention facility. Recognizing that the merits hearing should not proceed in Mendoza's absence, the Immigration Judge instead addressed the pending motion for counsel's withdrawal. In a colloquy with Mendoza's counsel, the Immigration Judge confirmed that counsel had spoken with Mendoza and had understood that Mendoza wished to proceed pro se :

IJ: [Y]ou indicate that you have spoken to your client and he was in agreement with the withdrawal request. Is that right?

Counsel: Yes, Your Honor. We, we had spoken to – I spoke to the client through an interpreter from our office and then also with the family members. Initially we had only been hired for the first proceeding and also bond. I asked him if they wanted to proceed with an attorney or what they wanted to do. From my last conversation with the family, and the individual who is actually a friend who initially hired us, it looks like he was going to be proceeding pro se , at least that was our understanding.

Hr'g Tr. at 10:11–19 (Dec. 8, 2020) (App. 181). The Immigration Judge then granted the attorney's motion to withdraw, and postponed the merits hearing for five weeks.

At the merits hearing on January 14, 2021, the Immigration Judge acknowledged that Mendoza was not represented by counsel. Then, after admitting statements of support submitted by his girlfriend and his coworker, the Immigration Judge examined Mendoza, who described the abuse that gangs had inflicted upon him in Honduras. In articulating his fears associated with returning to Honduras, Mendoza focused on the gang violence, but he also raised concerns about unemployment and hurricanes.

After a brief recess, the Immigration Judge announced that she would deny Mendoza's requests for relief from removal. She found Mendoza credible but determined that his claims did not warrant relief. His application for asylum was too late, and he did not qualify for withholding of removal or protection under CAT because he did not demonstrate a likelihood of either persecution or torture.

Before adjourning the hearing, the Immigration Judge informed...

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2 cases
  • Arias-Mendoza v. Attorney Gen.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 7 Abril 2023
    ...compel the conclusion that he received publicity as a witness to crime. See 8 U.S.C. § 1252(b)(4)(B); Alexander-Mendoza v. Att'y Gen., 55 F.4th 197, 205 (3d Cir. 2022). It does not. In the thirteen days in which he remained in El Salvador following the homicide, he did not publicly report t......
  • Julney v. Attorney Gen.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 29 Agosto 2023
    ...evidence, if considered, would have to compel a reasonable adjudicator to reach a contrary conclusion." 4 Alexander-Mendoza v. Att'y Gen., 55 F.4th 197, 207 (3d Cir. 2022) (citing Nasrallah, 140 S.Ct. at 1692; I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). III. DISCUSSION Julney argue......

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