     Case: 10-60563     Document: 00511572737         Page: 1     Date Filed: 08/16/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 16, 2011
                                     No. 10-60563
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

WALTER NOE GALINDO, also known as Walter Galindo Batres,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A027 000 059


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Walter Noe Galindo petitions this court for review of the decision of the
Board of Immigration Appeals (BIA) dismissing his appeal of the immigration
judge’s (IJ’s) order of removal. The BIA’s factual determinations are reviewed
under the substantial evidence standard, which requires only that they be based
upon the evidence presented and be substantially reasonable. Kohwarien v.
Holder, 635 F.3d 174, 178 (5th Cir. 2011). We will affirm the BIA’s factual
findings unless the evidence compels a contrary result. Id. We review due

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-60563    Document: 00511572737      Page: 2   Date Filed: 08/16/2011

                                  No. 10-60563

process challenges to immigration proceedings reviewed de novo. De Zavala v.
Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004).
      Galindo first argues that the BIA erred in concluding that he made a
knowing and voluntary waiver of his right to counsel. Galindo cites his transfer
“several hundred miles away from where his counsel’s law practice is located and
where his wife and material witnesses to his adjustment of status petition
reside” as a circumstance that should have been considered by the BIA. He
argues that the transfer violated his right to due process and interfered with his
attorney-client relationship.
      “[T]he absence of an attorney may create a due process violation if the
defect impinged upon the fundamental fairness of the hearing in violation of the
fifth amendment and there was substantial prejudice.” Ogbemudia v. INS, 988
F.2d 595, 598 (5th Cir. 1993) (internal quotations, citation, and footnote
omitted). In United States v. Saucedo-Velasquez, 843 F.2d 832, 834-35 (5th Cir.
1988), this court held that the “totality of the circumstances” approach was
applicable to the petitioner’s claim that he did not execute a valid waiver of his
Fifth Amendment rights. Circumstances to be considered include whether the
petitioner had the capacity to understand the warning given him, the nature of
the Fifth Amendment rights, and the consequences of waiving those rights. Id.
      Assuming, arguendo, that the transfer of an alien may implicate due
process if it infringes upon a constitutionally protected interest, Galindo has not
shown that he was denied due process. Galindo’s counsel was aware that
Galindo had been transferred and counsel acknowledged that he was able to
instruct Galindo, prior to the hearing before the IJ, to seek a continuance.
Further, the transcript of the hearing confirms that Galindo was aware of his
options, which included the option of obtaining a continuance to secure counsel
or a continuance to seek an adjustment of status pro se. Under the totality of
the circumstances, Galindo’s waiver of counsel during the hearing before the IJ



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                                 No. 10-60563

was not constitutionally invalid and Galindo was not deprived of his right to due
process. See Saucedo-Veasquez, 843 F.2d at 835.
      Galindo also argues that the IJ erred in denying his motion to withdraw
his acceptance of removal in lieu of pursuing an application for adjustment of
status. We review the denial of Galindo’s motion for an abuse of discretion. See
Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006).
      The IJ did not abuse its discretion in concluding that the circumstances
surrounding counsel’s alleged attempt to represent Galindo at the removal
hearing did not warrant withdrawal of Galindo’s election to accept removal.
Further, we reject Galindo’s assertion that he suffered from high blood pressure
and confusion which impaired his decision to proceed pro se and accept
removability. Galindo provided no support for this claim, other that declarations
by counsel and a legal assistant employed by counsel, and he has offered no
explanation as to why he failed to provide a personal declaration or medical
records attesting to his mental state. Because the evidence does not compel a
contrary finding, we will not disturb the BIA’s finding that Galindo failed to
establish a mental impairment. See Kohwarien, 635 F.3d at 178.
      For the foregoing reasons, Galindo’s petition for review is DENIED.




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