Aquino v. Attorney Gen.
| Decision Date | 22 November 2022 |
| Docket Number | 21-3317 |
| Parties | JOHAN MANUEL GONZALEZ AQUINO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA |
| Court | U.S. Court of Appeals — Third Circuit |
Argued: September 14, 2022
On Petition for Review of a Final Order of the Board of Immigration Appeals (Agency No. A057-135-446) Immigration Judge: Mirlande Tadal
Stephanie E. Norton [ARGUED] SETON HALL UNIVERSITY SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE Counsel for Petitioner
Sarah Pergolizzi UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION Counsel for Respondent OPINION OF THE COURT
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
"No harm, no foul" is usually good law. If someone spots a flaw in his agency proceeding and asks for a remand, he normally must show that the flaw prejudiced his outcome. Exceptions 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.
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 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 threatened 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 murder 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 arguments, 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 Immigration Appeals still dismissed the appeal.
Gonzalez Aquino now petitions for review, challenging both the hearing's procedure and the Board's substantive decision. 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 review its legal conclusions and Gonzalez Aquino's constitutional claims de novo. § 1252(a)(2)(D); Myrie v. Att'y Gen., 855 F.3d 509, 515 (3d Cir. 2017).
Gonzalez Aquino argues that he need not prove that certain errors prejudiced him. We have held that when an agency violates "a regulation protecting fundamental statutory or constitutional 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 "fundamental" under this test. It is time to do so.
For most constitutional violations, we ask whether any error was harmless. Arizona v. Fulminante, 499 U.S. 279, 30607 (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 violations of regulations protecting fundamental rights. Though we did not define fundamental rights, we were concerned with rights that, if violated, make an agency proceeding "fundamentally unfair." Leslie, 611 F.3d at 181. Leslie focused both on the significance of the right for fair hearings and on the structure needed to secure the right. See id. at 176, 181 ().
Criminal procedure has a direct analogue for Leslie's approach: 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, 1907 (2017) (quoting Fulminante, 499 U.S. at 310). There are three categories of structural errors. But outside of direct criminal 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 denied 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 quotation 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 fundamental right to counsel. We held that a violation of that right so undermines the structure of the hearing that we must automatically 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) (); B.C. v. Att'y Gen., 12 F.4th 306, 314, 318-19 &n.9 (3d Cir. 2021) (). 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 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).
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).
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 involving 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 explain 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 undermining the entire hearing's framework. So the error is not structural, and Gonzalez Aquino must prove prejudice.
He does not. Gonzalez Aquino notes a technical misunderstanding during the hearing. Pet'r's Br. 14. But in that misunderstanding, 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.
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 immigration 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 specific 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 government but at the consent, acquiescence or willful blindness of the government if you returned to [the] Dominican Republic." Id. This advice satisfied her regulatory duty to tell Gonzalez Aquino that he could present...
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