                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-2089
                                       ___________

                            EDGAR GARCIA RODRIGUEZ,
                                               Petitioner

                                             v.

                           ATTORNEY GENERAL OF THE
                           UNITED STATES OF AMERICA
                       ____________________________________

             On Petition for Review of an Order from The Department of
          Homeland Security and the Executive Office for Immigration Review
                             (Agency No. A079-684-341)
                         Immigration Judge: Alice S. Hartye
                       _________________________________
                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 20, 2019
              Before: KRAUSE, MATEY and COWEN, Circuit Judges

                           (Opinion filed: November 21, 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.
PER CURIAM

       Edgar Garcia Rodriguez is a citizen of Mexico. He unlawfully entered the United

States in 1998 and, in 2002, was ordered removed. Garcia Rodriguez unlawfully ‘re-

entered’ the United States, and was subsequently removed, several times. In 2018,

Garcia Rodriguez was arrested in Ohio and convicted of driving under the influence. He

later pleaded guilty in federal court to illegal reentry, under 8 U.S.C. § 1326(a), and was

turned over to immigration authorities.

       The original removal order from 2002 was reinstated under 8 U.S.C. § 1231(a)(5).

After a reasonable fear interview, an asylum officer determined that Garcia Rodriguez

was not eligible for relief from removal. 1 The matter was referred to an immigration

judge (“IJ”), who refused to continue proceedings when Garcia Rodriguez asked for more

time to have counsel appear at his side. The IJ ultimately concurred with the asylum

officer’s merits determination, finding Garcia Rodriguez credible but concluding that the

harm he suffered and feared in Mexico—extortion, kidnapping and physical violence by

members of a drug cartel called “New Generation”—was neither on account of a

protected ground, nor connectable in some nefarious way to the Mexican government.




1
  While the Immigration and Nationality Act (“INA”) prohibits an alien subject to a
reinstated removal order from applying for relief from removal, treaty obligations create
an exception that allows the alien to seek withholding of removal or protection under the
Convention Against Torture (“CAT”). See Fernandez-Vargas v. Gonzales, 548 U.S. 30,
35 n.4 (2006); Cazun v. Att’y Gen., 856 F.3d 249, 254 (3d Cir. 2017).
                                             2
       Garcia Rodriguez then filed this petition for review. We exercise jurisdiction

under 8 U.S.C. § 1252(a). See Bonilla v. Sessions, 891 F.3d 87, 90 n.4 (3d Cir. 2018); cf.

Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 217 (3d Cir. 2018).

       Garcia Rodriguez raises in his opening brief various challenges to the proceedings

before the asylum officer and the IJ. None of those challenges is persuasive. 2 We

address the prominent ones below.

       Garcia Rodriguez argues that the IJ failed to properly consider his eligibility for

relief under the CAT. Specifically, Garcia Rodriguez claims that the IJ ignored evidence

that police officers in Mexico are ineffective in responding to violence by the cartels and,

worse, actually facilitate criminal acts, some of which amount to torture.

       The testimonial evidence Garcia Rodriguez’s refers to, however, was thin and

speculative at best; it was insufficient to carry his burden of proof. See, e.g., A.R. 18

(Garcia Rodriguez: “[T]he government doesn’t help me for anything. They’ve never

helped me.”); A.R. 16 (IJ: “And the police accepted the report [of your kidnapping]?”;

Garcia Rodriguez: “Yes.”); cf. 8 C.F.R. § 1208.16(c)(2) (“The burden of proof is on the


2
  Garcia Rodriguez failed to brief and thus waived claims challenging the agency
determination that any harm (past or future) was not on account of a “protected ground”
and thus did not constitute “persecution” under the INA. Such claims if raised would
appear to be meritless, in any event. Cf. Abdille v. Ashcroft, 242 F.3d 477, 494 (3d Cir.
2001) (concluding that “the evidence put forth by Abdille”—that while working as a
street vendor in South Africa he was attacked and robbed on multiple occasions, and that
police were lackadaisical in their response—“is also consistent with acts of private
violence that fall short of persecution on account of race, nationality, or membership in a
particular social group”).

                                              3
applicant . . . to establish that it is more likely than not that he or she would be tortured if

removed to the proposed country of removal.”). And the documentary evidence he cites

as determinative of his argument was presented for the first time in this Court (a point he

concedes, see Br. at 18), and thus could not have been ignored by the agency.

       Furthermore, because the documentary evidence was not presented below, it is not

included in the administrative record. We cannot consider new, extra-record evidence

when adjudicating a petition for review. See 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of

appeals shall decide the petition only on the administrative record on which the order of

removal is based”).

       Rodriguez also argues that the asylum officer used the wrong standard to evaluate

the CAT claim. But Rodriguez offered insufficient evidence to satisfy his CAT burden,

as already noted above. So even if the asylum officer misapplied the applicable

standard—and there is no indication that that happened—it would not make a difference. 3

       Finally, Rodriguez argues that the IJ violated principles of due process when she

denied his request to continue proceedings until counsel could appear on his behalf. 4

According to the IJ, the continuance request was denied because “this case needs to be



3
  Because our resolution of this claim would be the same whether we were employing the
‘facial legitimacy’ standard of review advocated by the Government, see Gov’t Br. at 20-
25, or instead a less-deferential standard, we need not and do not decide here which
standard is appropriate.
4
 Immediately after the IJ ruled, Garcia Rodriguez asked for reconsideration, stating: “I
need to speak to my lawyer. She couldn’t come today. I have one already.” A.R. 19.
                                            4
done expeditiously,” as “[i]t’s a very limited type of proceeding.” A.R. 8. There is

nothing incorrect about the IJ’s statements. See 8 C.F.R. § 1208.31 (“In the absence of

exceptional circumstances, [] review shall be conducted by the immigration judge within

10 days of [the referral from the asylum officer].”); cf. Bartolome v. Sessions, 904 F.3d

803, 813 (9th Cir. 2018) (“Like reinstatement orders, reasonable fear review proceedings

are intended to be expedited and efficient.”).

       And, at bottom, there was no due process violation. Rodriguez affirmatively

chose to proceed before the asylum officer without counsel and without delay, was not

entitled to counsel later on before the IJ, see Bonilla, 891 F.3d at 92, and cannot show

prejudice from that lack of representation; counsel would not have been permitted to

supplement the record, cf. 8 C.F.R. § 1208.31(g), and there is no indication that counsel

would have presented successful claims of error, see Bonilla, 891 F.3d at 93.

                                      *      *      *

       For the reasons outlined above, Garcia Rodriguez’s petition for review will be

denied.




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