NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 18-1793 ______________ YONY EUGENIO BANEGAS, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ______________ On Petition for Review of Orders From The Department of Homeland Security and The Executive Office for Immigration Review Agency No. A076-575-377 ______________ Submitted Under Third Circuit L.A.R. 34.1(a) January 15, 2019 ______________ Before: GREENAWAY, JR., SHWARTZ, and PORTER, Circuit Judges. (Filed: January 16, 2019) ______________ OPINION ∗ ______________ ∗ This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SHWARTZ, Circuit Judge. Yony Banegas petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of his application for cancellation of removal. Because Banegas’s constitutional right to due process was not violated when an IJ who had reviewed the record but was not present at his cancellation hearing ruled on his cancellation application, we will deny the petition. I Banegas, a native and citizen of Honduras, entered the United States in 1993 and became a lawful permanent resident in 1999. In 2016, the Department of Homeland Security filed a Notice to Appear charging Banegas with removability under 8 U.S.C. § 1227(a)(2)(A)(ii) based on his theft and simple assault convictions. IJ Walter Durling held Banegas’s first five calendar hearings. IJ Barbara Cigarroa presided over Banegas’s cancellation of removal hearing (“the merits hearing”). In deciding whether to exercise discretion to grant relief, IJ Cigarroa weighed positive factors, including the length of Banegas’s residence in the United States, his relationship with his two minor children, and the difficulties Banegas has faced, against negative factors—chiefly Banegas’s extensive record of arrests and convictions for various offenses, including driving under the influence (“DUI”) and simple assault, which Banegas characterized as consisting of false allegations primarily attributed to his conflict-prone relationship with a girlfriend. At the conclusion of the merits hearing, IJ Cigarroa orally denied Banegas’s application for cancellation of removal and Banegas waived his right to appeal the denial. 2 Banegas filed a motion to reopen based on incapacity due to mental illness. At the time he filed the motion, IJ Cigarroa was no longer available to resume Banegas’s case. As a result, IJ Durling considered the motion, granted it, and issued a new order denying the cancellation application. Banegas appealed, and the BIA remanded the case for entry of a formal judgment on Banegas’s eligibility for removal. IJ Durling held a hearing where he explained that he would familiarize himself with the record from the merits hearing before issuing a judgment. Banegas’s counsel did not object. 1 IJ Durling subsequently issued a written opinion in IJ Cigarroa’s name denying Banegas’s cancellation application. 2 Banegas again appealed, and the BIA remanded with instructions to the IJ to issue a new order stating whether he had reviewed the record as required under 8 C.F.R. § 1240.1(b). IJ Durling did so, confirming that “the court had in fact ‘familiarized’ itself with ...
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