Orlando Hernandez Garmendia v. Attorney General United States


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. …

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