                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 10a0359n.06

                                                   No. 09-3277                                         FILED
                                                                                                   Jun 11, 2010
                                                                                            LEONARD GREEN, Clerk
                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

ANDRES DOMINGUEZ-GONZALEZ, aka
Joce Pitre Colon,

         Petitioner,

v.                                                             ON PETITION FOR REVIEW OF AN
                                                               O RD ER O F T HE B O AR D O F
ERIC HOLDER, JR., Attorney General,                            IMMIGRATION APPEALS

         Respondent.
                                                                        OPINION
                                                        /




BEFORE:           CLAY and GILMAN, Circuit Judges; and ZATKOFF, District Judge.*

         CLAY, Circuit Judge. Petitioner, Andres Gonzalez Dominguez, seeks review of a February

26, 2009 order from the Board of Immigration Appeals (“BIA”) that affirmed the immigration

judge’s order of removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner alleges that the

immigration judge’s failure to advise him of his right to apply for asylum, withholding of removal,

and relief under the Convention Against Torture was reversible error based on the failure to follow

regulations and a related due process claim. For the reasons set forth below, we DENY the petition

for review of the decision of the Board of Immigration Appeals.



         *
         The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.
                                             No. 09-3277

                                            BACKGROUND

        Petitioner entered the United States by crossing the Arizona border without inspection on or

about September 10, 2003. Petitioner, who was born July 12, 1983, is a native-born citizen of

Guatemala. He was arrested for driving without an operator’s license, and local authorities contacted

the Department of Homeland Security (“DHS”) upon learning of his immigration status. Petitioner

was sentenced to 43 days’ incarceration for lacking an operator’s license, disorderly conduct, and

two counts of obstructing official business.

        Petitioner was served with Notice to Appear from DHS on May 20, 2008. On June 3, 2008,

Petitioner was placed in removal proceedings and charged with being present in the United States

without admission or parole, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). Two hearings were held

before the immigration judge, the first on July 8, 2008 and the second on August 12, 2008. The

immigration judge entered an order of removal at the conclusion of the second hearing.

        At the first hearing before the immigration judge on July 8, 2008, via video conference from

the Seneca County Jail in Tiffin, Ohio, Petitioner was informed of his right to have an attorney

present. Petitioner advised the immigration judge that he feared returning to his native Guatemala.

The hearing was adjourned when Petitioner indicated he would like to find counsel before

proceeding. A second hearing was convened on August 12, 2008, again via video conference.

Petitioner appeared pro se at this hearing as well, and the immigration judge did not inquire into

Petitioner’s efforts to find an attorney.

        The second hearing was relatively short, consisting primarily of the immigration judge

insuring that the facts underlying Petitioner’s removability were admitted by Petitioner. The


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                                            No. 09-3277

immigration judge then inquired whether Petitioner was eligible for voluntary departure, concluding

that he was not because he did not possess a passport or have funds for travel. Petitioner declined

to designate a country for removal, stating that he preferred to stay in the United States. The

government designated Guatemala as the country of removal.

       The immigration judge then inquired into whether Petitioner had any fears of returning to

Guatemala, to which Petitioner answered in the affirmative. Petitioner explained that his family had

borrowed money ($9,000) from a loan shark to pay for medical expenses related to a disfiguring burn

to Petitioner’s right hand and arm, and that this same loan shark had brought Petitioner to the United

States to work to pay the high-interest debt owed. Petitioner indicated that he fears that this loan

shark will kill him or his family if he returns to Guatemala because they cannot afford to repay the

debt. The immigration judge then asked whether Petitioner had any fears of the government of

Guatemala harming him upon return, to which Petitioner responded in the negative. The hearing

concluded with the immigration judge ordering Petitioner removed to Guatemala and advising

Petitioner of his right to appeal the decision to the BIA.

       Petitioner appealed to the BIA by filing a Notice of Appeal on August 28, 2008. In his appeal

to the BIA, Petitioner attached a letter reiterating his story about the loan shark and his fear of

returning to Guatemala. After the appeal was initiated, Petitioner obtained and was represented by

counsel before the BIA, who argued the same grounds for relief asserted in this timely appeal.

Petitioner has been removed to Guatemala during the pendency of this action.1


       1
       The removal of an alien does not moot a pending appeal of an order of removal. See
Garcia-Flores v. Gonzales, 477 F.3d 439, 441 n.1 (6th Cir. 2007) (holding that an alien suffers
ongoing injury of re-entry bar due to order of removal); accord Santana-Albarran v. Ashcroft, 393

                                                  3
                                            No. 09-3277

       On October 27, 2008, the BIA remanded the case to the immigration judge for issuance of

a formal written or oral decision. A written decision was issued by the immigration judge on

November 6, 2008. Briefing continued before the BIA, with Petitioner’s counsel filing an

appearance on December 9, 2008. New briefs were filed by both Petitioner and Immigration and

Customs Enforcement. The BIA denied Petitioner’s appeal in an order dated February 26, 2009.

This timely petition for review followed.

                                     STANDARD OF REVIEW

       When the BIA issues its own opinion rather than summarily adopting the findings of the

immigration judge, this Court reviews the decision of the BIA as the final agency determination.

Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007). The substantial-evidence-on-the-record

standard of review requires that the BIA’s decision be upheld unless is it “manifestly contrary to the

law.” Castellano-Chacon v. I.N.S., 341 F.3d 533, 552 (6th Cir. 2003); see also Koulibaly v.

Mukasey, 541 F.3d 613, 619 (6th Cir. 2008). The administrative findings of fact must be upheld

unless this Court finds that “any reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); see also I.N.S. v. Elias-Zacharias, 502 U.S. 478, 481 (1992);

Ramaj v. Gonzales, 466 F.3d 520, 527 (6th Cir. 2006).

       Legal conclusions of the BIA are reviewed de novo. Patel v. Gonzales, 432 F.3d 685, 692

(6th Cir. 2005). This Court reviews de novo claims of due process violations in removal

proceedings. Akhtar v. Gonzales, 406 F.3d 399, 408 (6th Cir. 2005). Finally, this Court defers to




F.3d 699, 701 n.1 (6th Cir. 2005).

                                                  4
                                            No. 09-3277

the agency’s reasonable interpretations of its own regulations. Aburto-Rocha v. Mukasey, 535 F.3d

500, 503 (6th Cir. 2008) (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)).

                                           DISCUSSION

A.     Standard for Regulatory and Due Process Violations

       Petitioner alleges that the immigration judge’s failure to advise him of his statutory right to

seek asylum, withholding of removal, and relief under the Convention Against Torture was a clear

violation of the regulations governing the deportation proceedings. See 8 C.F.R. § 1240.11(c). He

also alleges that, only with regard to withholding of removal and relief under the Convention Against

Torture, this error amounts to a violation of due process. See Reno v Flores, 507 U.S. 292, 306

(1993) (the Fifth Amendment of the Constitution guarantees due process of law to aliens in removal

proceedings); Ashki v. I.N.S., 233 F.3d 913, 921 (6th Cir. 2000) (discretionary forms of relief are not

sufficient to support a due process violation because the petitioner does not have a protected interest

in such forms of relief).

       Petitioner has cited no authority from this Circuit supporting his claim that a failure of the

immigration judge to advise an alien of his statutory right to apply for discretionary relief is a

reversible error. Instead, Petitioner relies upon authority from the Seventh Circuit, Asani v. I.N.S.,

154 F.3d 719, 727-29 (7th Cir. 1998), which in turn relies upon authority from the Ninth Circuit,

Duran v. I.N.S., 756 F.2d 1338, 1341-42 (9th. Cir. 1985). The Seventh Circuit has developed a

doctrine in removal proceedings in which reversal is required where the immigration judge fails to

follow clear regulatory mandates such that the alien “may have been able to demonstrate” a right to

relief, even if the relief is discretionary. Asani, 154 F.3d at 729. However, in Asani, the court’s


                                                  5
                                             No. 09-3277

ruling on the petitioner’s due process claim was merely dicta because the court remanded to give the

petitioner an opportunity to file an untimely motion to reopen, relying upon representations from the

government that such a motion may be available under new regulations. Id. at 728-29. Furthermore,

Asani involved a situation where the petitioner was apparently eligible for the discretionary relief,

which as discussed below, is not true of the instant case. Therefore, the Seventh Circuit’s precedent

does not support an automatic reversal where the immigration judge fails to follow mandatory

regulations, despite Petitioner’s arguments to the contrary. Moreover, we adopt the same standard

for such a regulatory violation as the one this Court uses for procedural due process claims –

requiring an alien to show a similar level of prejudice in order to demonstrate reversible error.

        “[R]eviewing an alleged due process violation is a two-step inquiry: first, whether there was

a defect in the removal proceeding; and second, whether the alien was prejudiced because of it.”

Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir. 2005). Prejudice will not be presumed, even in cases

where the error alleged deprived the alien of a statutory right. Gishta v. Gonzales, 404 F.3d 972, 979

(6th Cir. 2005).

        It is not settled whether the immigration judge committed a procedural error in failing to

advise Petitioner of his statutory rights. Petitioner, proceeding pro se, answered in the affirmative

when asked whether he feared returning to Guatemala. While he did not allege facts sufficient for

relief, his lack of experience and his lack of counsel probably should have caused the immigration

judge to follow the regulatory mandate to advise aliens of their statutory rights to apply for relief for

which they were apparently eligible. Whether this error is sufficient to support a procedural due




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                                             No. 09-3277

process claim need not be settled at this time because Petitioner has not shown sufficient prejudice

to warrant reversal.

        The parties dispute whether the issue of prejudice is properly before this Court and what

standard of prejudice is required in this Circuit. The government asserts that in order to show

prejudice, the alien must show that but for the alleged error, he “would have been entitled to continue

residing in the United States.” Sako v. Gonzales, 434 F.3d 857, 864 (6th Cir. 2006) (citing Denko

v. I.N.S., 351 F.3d 717, 724 (6th Cir. 2003)); see also Huicochea-Gomez v. I.N.S., 237 F.3d 696,

699-700 (6th Cir. 2001). Petitioner argues that the BIA did not address the issue of prejudice, and

so that issue is not before this Court, and alternatively, that prejudice is shown simply by the fact that

the alien’s actions would have been different had the error not occurred.

        When the BIA adopted the immigration judge’s ruling that Petitioner “did not establish a

prima facie case for asylum or withholding of removal,” this ruling implicitly addressed the

prejudice prong of the due process analysis. (Admin. R. 3). Therefore, prejudice is properly before

this Court. Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974)

(“While we may not supply a reasoned basis for the agency’s action that the agency itself has not

given, we will uphold a decision of less than ideal clarity if the agency's path may reasonably be

discerned.”) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

        To establish the requisite level of prejudice, Petitioner must show that the immigration

judge’s failure to advise him of his statutory rights “led to a substantially different outcome from that

which would have occurred in the absence of the [] violation[].” Graham v. Mukasey, 519 F.3d 546,

549-50 (6th Cir. 2008). He must, in other words, demonstrate “that the alleged violation affected


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                                             No. 09-3277

the outcome of the proceedings.” Gishta, 404 F.3d at 979 (citation omitted). Furthermore, “we will

not simply presume prejudice.” Id.

B.      Petitioner’s Allegations of Prejudice

        This Court will reverse the decision of the BIA affirming the order of removal only if it finds

that the immigration judge’s failure to advise Petitioner of his statutory rights prejudiced Petitioner’s

ability to vindicate those rights. In this instance, Petitioner would need to show that he has alleged,

either before the immigration judge or on appeal, sufficient factual allegations to support the

conclusion that he is eligible for asylum, withholding of removal, or relief under the Convention

Against Torture.

        i.      Legal Standards for Relief

        In order to demonstrate that he is eligible for asylum, Petitioner must show that he qualifies

as a refugee by providing evidence to “establish either that he has suffered actual past persecution

or that he has a well-founded fear of future persecution.” Pilica v. Ashcroft, 388 F.3d 941, 950 (6th

Cir. 2004). This persecution must be shown to be “on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Even if

Petitioner can demonstrate such a well-founded fear of future persecution, the Attorney General has

discretion whether to grant asylum. See 8 U.S.C. § 1158(b)(1)(A). Petitioner bears the burden of

providing evidence to support his claim for asylum. See Lin v. Holder, 565 F.3d 971, 976 (6th Cir.

2009) (citing I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987)).

        “An application seeking withholding of deportation faces a more stringent burden of proof

than one for asylum.” Mikhailevitch v. I.N.S., 146 F.3d 384, 391 (6th Cir. 1998) (citing


                                                   8
                                             No. 09-3277

Cardoza-Fonseca, 480 U.S. at 431-32). The standard for withholding of removal is that the

petitioner must demonstrate that there is a clear probability, or that it is more likely than not, that he

would face persecution in the country of removal on account of one of the five protected grounds

enumerated in the definition of a refugee. Id. Meeting this higher burden of proof then entitles the

applicant to mandatory withholding of removal rather than the triggering of the discretionary

standard of a grant of asylum. Cardoza-Fonseca, 480 U.S. at 429. If Petitioner does not meet his

burden as to his asylum claim, it follows that he cannot establish entitlement to withholding of

removal. See Zhao v. Holder, 569 F.3d 238, 246 n.10 (6th Cir. 2009).

        In order to establish entitlement to relief under the Convention Against Torture, a petitioner

bears the burden of showing “it is more likely than not that he or she would be tortured if removed

to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). This standard is a higher burden

than that for a well-founded fear of future persecution. See Ramaj v. Gonzales, 466 F.3d 520, 532

(6th Cir. 2006). Torture is defined as

        any act by which severe pain or suffering, whether physical or mental, is intentionally
        inflicted on a person for such purposes as obtaining . . . information or a confession,
        punishing him or her for an act he or she or a third person has committed or is
        suspected of having committed, or intimidating or coercing him or a her or a third
        person, or for any reason based on discrimination of any kind, when such pain or
        suffering is inflicted by or at the instigation of or with the consent or acquiescence
        of a public official or other person acting in an official capacity.

8 C.F.R. § 1208.18(a)(1) (emphasis added).

        This standard for relief requires considering all relevant evidence, such as evidence of past

torture inflicted on the petitioner, evidence that the petitioner could relocate to a part of the country

where he or she would be unlikely to be tortured, evidence of mass violations of human rights within


                                                    9
                                            No. 09-3277

the country at issue, and any other relevant information regarding conditions in the country of

removal. 8 C.F.R. § 1208.16(c)(3). The burden for a CAT claim is both broader and narrower than

an asylum claim. See Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001) (“Coverage is broader

because a petitioner need not show that he or she would be tortured ‘on account of’ a protected

ground; it is narrower, however, because the petitioner must show that it is ‘more likely than not’

that he or she will be tortured, and not simply persecuted . . . .”) (emphasis added).

       ii.     Petitioner has not demonstrated that he is eligible for relief

       Petitioner’s allegations essentially amount to a fear that he will be a victim of crime upon

return to Guatemala. On the surface, his fear is clearly one of substantial harm, but Petitioner has

not demonstrated nor alleged that the alleged loan shark he fears is targeting Petitioner because of

his membership in a particular social group. Asylum is available only when the alien alleges

persecution on account of a protected group, which in the instant case was apparently a particular

social group, i.e., a well-defined group where members share essentially immutable characteristics

“other than their risk of being persecuted.” Rreshpja v. Gonzales, 420 F.3d 551, 556 (6th Cir. 2005).

Criminal acts are not, on their own, sufficient to establish persecution without a nexus to a protected

ground. Lumaj v. Gonzales, 462 F.3d 574, 577-78 (6th Cir. 2006). Therefore, Petitioner has not

demonstrated, either before the immigration judge or on appeal, that he is apparently eligible for

asylum. We find that Petitioner has not shown the required prejudice for his regulatory claim as to

asylum, nor his constitutional claim as to withholding of removal. See Zhao, 569 F.3d at 246 n.10

(Petitioner who cannot establish eligibility for asylum necessarily cannot meet higher burden for

withholding of removal).


                                                  10
                                             No. 09-3277

        In order to seek relief under the Convention Against Torture, an alien may be able to link fear

of being a victim of crime to a viable claim for relief if the harm he would suffer would be either at

the hands of a government official or with the implicit acquiescence of such officials. See 8 C.F.R.

§ 1208.18(a)(1). However, Petitioner made no allegation before the BIA or the immigration judge

that the loan shark he allegedly fears is a government official, nor that the government of Guatemala

is unable or unwilling to protect Petitioner from this criminal act. Instead, Petitioner now argues in

his reply brief that his

        . . . position that the Guatemalan government is unable or unwilling to protect him,
        is hereby asserted to be implicit in his oral testimony and written submissions. If the
        Guatemalan government were neither unable nor unwilling to protect the Petitioner,
        it is reasonable to suppose that his fear of removal would, at the least, have been
        tempered.

(Appellant’s Reply Br. at 3). Issues raised only in reply are not properly presented to the court.

United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001). However, even if the argument were

properly presented, Petitioner asks this Court to infer that the Guatemalan government is complicit

in this loan shark’s activity simply from the fear alleged by Petitioner before the immigration judge.

Such allegations are not sufficient to support a claim for relief. Petitioner, therefore, has not

established that he is eligible for relief under the Convention Against Torture.

                                           CONCLUSION

        In order to find reversible error for the immigration judge’s failure to advise Petitioner of his

statutory rights on either regulatory or constitutional grounds, Petitioner had to demonstrate that the

immigration judge’s error affected the outcome of his removal proceedings. Petitioner has not done




                                                   11
                                          No. 09-3277

so, and therefore he has not shown that the immigration judge’s error warrants reversal. Therefore,

the petition for review is DENIED.




                                                12
