Romero-Romero v. Attorney Gen.
| Docket Number | 21-1992 |
| Decision Date | 23 August 2022 |
| Parties | JOSE SELVIN ROMERO-ROMERO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Submitted under Third Circuit L.A.R. 34.1(a) May 2, 2022
On Petition for Review of an Order of the Board of Immigration Appeals (A216-647-449) Immigration Judge: Jack Weil
Before: GREENAWAY, JR., PORTER, and PHIPPS, Circuit Judges
Petitioner Jose Selvin Romero-Romero seeks review of the Board of Immigration Appeals' ("Board" or "BIA") decision to affirm the denial of his motion to reopen. He argues that he is eligible for relief on the merits and that the underlying circumstances warranted reopening his proceedings sua sponte. Romero-Romero also argues that his due process rights were violated because he did not have counsel during his removal hearing. For the reasons set forth below, we disagree with Romero-Romero and will deny his petition for rehearing.
Jose Selvin Romero-Romero is a native and citizen of Honduras. He entered the United States on or around November 9, 2013. Romero-Romero came to the attention of the Department of Homeland Security ("DHS" or "the Department") in October 2020, after being arrested for driving without a license and driving while intoxicated. Following time in state custody, Romero-Romero was transferred into the custody of DHS. At that time, the Department served him with a Notice to Appear for removal proceedings. The Notice to Appear charged Romero-Romero with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) (being present in the United States without having been admitted or paroled). The Notice to Appear also included information explaining to Romero-Romero his right to counsel, what he should consider before accepting legal advice, and a list of free or low-cost legal services available to him. Romero-Romero signed each of these documents.[1]
Romero-Romero appeared before the Immigration Judge on October 28, 2020. At the hearing, he appeared pro se but the Immigration Judge explained to him his right to counsel and provided Romero-Romero with a list of free or low-cost legal services in the area. As is common, the court also employed the services of an official interpreter to provide these explanations in Romero-Romero's native language of Spanish. Romero-Romero indicated on the record that he understood his right to counsel and the Immigration Judge offered him a continuance to retain counsel. Romero-Romero declined this opportunity and indicated he did not wish to postpone the case. The Immigration Judge held the hearing that day.
At the hearing, the Immigration Judge inquired into Romero-Romero's eligibility for relief. This inquiry included questioning Romero-Romero about his length of stay in the United States, family ties and immigration status, criminal history, and his ability to depart voluntarily. Romero-Romero responded to the "multitude of questions" "clearly" and with no indication that he "did not comprehend" what was asked. A.R. 81. He also "expressly" disavowed any fear of returning to Honduras. Id. at 80. The Immigration Judge found Romero-Romero removable and ordered him removed to Honduras. Romero-Romero then waived his right to an administrative appeal.
One week later, through counsel, Romero-Romero filed a motion to reopen his removal proceedings.[2] With this motion, he also filed an I-589 application asserting eligibility for asylum, withholding of removal, and protection under the Convention Against Torture. Romero-Romero claimed that during the prior removal hearing, he was "afraid, tired, nervous and not feeling well." A.R. 87. Thus, he "mistakenly said that he was not afraid to return to Honduras, even though he is genuinely fearful for his life if he returns." A.R. 87-88.
Romero-Romero's I-589 application alleged that his eligibility rested on "pa[s]t persecution and likely . . . future persecution" in Honduras. Id. at 88. He claimed that in December 2012, Honduran police raided the home that he shared with his mother on false charges of hiding illegal weapons. These police then allegedly "beat[,] tortured, arrested[,] and detained" him and his mother, though they were eventually acquitted in a judicial proceeding four months later. A.R. 96. Romero-Romero alleged that intimidation by gang members, whom he believed to be working with the police, deterred him and his family from pursuing legal action against the police.
To support his motion to reopen, Romero-Romero attached a declaration from himself and an affidavit from his aunt, Rosa Paz Romero De Cruz. He also attached a 2019 country conditions report on Honduras from the United States Department of State. Romero-Romero's declaration reiterated the alleged persecution by police and reasserted that he did not have legal representation at the removal hearing "[d]ue to a misunderstanding." A.R. 102. The affidavit from Rosa Paz Romero De Cruz claimed that Romero-Romero entered the United States in 2013 after he fled Honduras; he would not have admitted the charge of removability if he had been represented by counsel; he endured a "very traumatic experience" with his mother in Honduras; his mother is "still under [the] threat of gangs"; and Romero-Romero "is scared to return to his country." A.R. 106.
Romero-Romero's motion to reopen also argued that a "[c]hange in circumstances" made him eligible for relief. A.R. 99. He claimed that his cousin, Gloria Castro Romero, was recently forced to flee Honduras and that she too was being threatened by the same gang members. This evidence was purportedly "not available at his prior master hearing." A.R. 15. Further, although they remained in Honduras, Romero-Romero claimed that his mother and his "entire family" also recently received threats from the same gang.[3] A.R. 99.
Finally, in addition to eligibility on the merits, Romero-Romero argued that the Immigration Judge should exercise the court's authority to reopen his proceedings sua sponte.
The Immigration Judge denied Romero-Romero's motion to reopen. The Judge's order reviewed the course of events at the removal hearing. These events included Romero-Romero being informed (in his native language) of his right to counsel, then furnished with a list of free or low-cost legal service providers. The Judge further recalled that Romero-Romero indicated he understood his rights and "did not wish his case to be continued to locate counsel." A.R. 80. The Judge also reviewed his numerous inquiries, to which Romero-Romero had "responded clearly." A.R. 81. Perhaps most importantly, Romero-Romero "expressly indicated that he had no fear of return to Honduras." A.R. 80. The Immigration Judge, therefore, viewed Romero-Romero's right-to-counsel claim as merely a "change of heart . . . [which did] not justify reopening of the proceedings." Id.
The Immigration Judge next held that Romero-Romero's evidence did not establish prima facie eligibility. The Judge explained that Romero-Romero presented no qualifying exception to the one-year limitations period for asylum. He was likewise ineligible for withholding of removal, because his evidence did not show that the harm alleged "was on account of a protected ground." A.R. 81. Further, there was no evidence that the Honduran government was unwilling or unable to provide protection. On the contrary, Romero-Romero was tried, found not guilty, and released. Moreover, there was no indication that the Honduran government was otherwise still interested in him eight years later. He and his mother also chose not to pursue further action against the police.
Finally, the Immigration Judge held that Romero-Romero could not obtain relief under the Convention Against Torture. First, Romero-Romero's declaration did not identify "a public official intent on harming him" or explain why the official would be interested years later and after having been cleared of charges. Id. Second, Romero- Romero also failed to include evidence supporting his assertion that gangs were working with the police.
On appeal to the BIA, Romero-Romero advanced the same arguments as presented to the Immigration Judge.[4] The Board rejected each of these arguments.
The BIA explained that Romero-Romero failed to submit evidence that his waiver of counsel and decision to proceed pro se "was anything but knowing, voluntary, and intelligent." A.R. 4. Specifically, no evidence "show[ed] that his testimony was due to any sort of medical condition." Id. Further, Romero-Romero's ability to "answer many questions regarding his eligibility for relief . . . through an official Immigration Court interpreter" also undermined his right-to-counsel claim. Id. The Board was also unpersuaded by Romero-Romero's claimed eligibility for relief on the merits. Romero-Romero could not show that the documents he submitted "were previously unavailable." A.R. 5. Given the Board's other conclusions, it determined that the Immigration Judge did not err when the Judge declined to reopen the proceedings sua sponte, id. The BIA affirmed the Immigration Judge's ruling in toto.
Romero-Romero timely appealed the Board's decision.[5] We will now deny his petition.
The BIA had jurisdiction under 8 C.F.R. § 1003.2(c) to review Romero-Romero's motion to reopen his removal proceedings. As discussed in section IV.b., infra, we lack jurisdiction to review the Board's decision to deny reopening sua sponte. Darby v. Att'y Gen., 1 F.4th 151, 164 (3d Cir. 2021). For the remaining issues, we have jurisdiction to review the final order of the Board pursuant to 8 U.S.C. § 1252(a)....
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