                                       PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 17-2324
                     _____________

               ABILIO SORTO BONILLA,
                                  Petitioner
                         v.

          JEFFERSON B. SESSIONS III
   ATTORNEY GENERAL OF THE UNITED STATES

                     ______________

          On Petition for Review of Orders From
        The Department of Homeland Security and
       The Executive Office for Immigration Review
               Agency No. A200-771-350
                     ______________

   Before: JORDAN, SHWARTZ, and KRAUSE, Circuit
                      Judges.

                 (Filed: March 15, 2018)


Christopher M. Casazza, Esq.
The Law Office of David E. Piver
150 Strafford Ave., Suite 115
Wayne, PA 19087

              Counsel for Petitioner

Kristen A. Giuffreda Chapman
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
450 5th Street, N.W.
Room 10016
Washington, DC 20001

Nancy Canter
John D. Williams
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
PO Box 878, Ben Franklin Station
Washington, DC 20044

              Counsel for Respondent

                       ______________

                 OPINION OF THE COURT
                     ______________

SHWARTZ, Circuit Judge.

      Abilio Sorto Bonilla petitions for review of the
Immigration Judge’s (“IJ”) determination, in a reasonable fear
proceeding, that he was not entitled to relief from his reinstated
removal order. Sorto Bonilla argues that his due process rights




                                2
were violated because the IJ conducted the proceeding without
his counsel. For the reasons that follow, we will deny the
petition.

                               I

       Sorto Bonilla, a native and citizen of El Salvador, first
attempted to enter the United States illegally in 2010. The
Department of Homeland Security (“DHS”) deemed him
inadmissible and he was removed to El Salvador. He returned
to the United States shortly thereafter without inspection or
permission. In May 2017, Sorto Bonilla was arrested and
found to be the subject of a removal order. He expressed a fear
of persecution or torture if returned to El Salvador and was
referred to a United States Customs and Immigration Services
(“USCIS”) asylum officer for an interview to determine
whether his fears were reasonable. See 8 C.F.R. § 208.31(a)-
(b).

       Sorto Bonilla met with an asylum officer on four
occasions. The first three meetings ended before the
reasonable fear interview began because Sorto Bonilla stated
he wanted his attorney present. At the fourth meeting, with his
attorney present via telephone, Sorto Bonilla sat for a full
reasonable fear interview. 1 Sorto Bonilla told the asylum
officer that he was afraid to return to El Salvador because he
had been extorted by a gang there, and gang members
attempted to recruit him because they thought he had received
money from his family in the United States. Sorto Bonilla said
the gang members never physically harmed or threatened him

       1
        Sorto Bonilla’s appellate counsel did not represent him
before the DHS or IJ.




                               3
and he did not report these incidents to the police, but he was
afraid of being robbed or harmed by gang members on account
of his “political beliefs”—as an individual returning from the
United States—and because he has light skin color. A.R. 47.
At the end of the interview, the asylum officer summarized
Sorto Bonilla’s claim, which he and his attorney confirmed,
and Sorto Bonilla’s attorney reiterated only that the gang
targeted him for money because he came from and has family
ties in the United States, and “because of his color.” A.R. 50.

       The asylum officer issued a negative reasonable fear
determination. See 8 C.F.R. § 208.31(f). The officer
concluded Sorto Bonilla had testified credibly, but the harm he
experienced failed to rise to the level of severe physical injury
or mental pain, and he thus failed to demonstrate a reasonable
possibility that he would be persecuted or tortured in El
Salvador. Sorto Bonilla requested review by an IJ, see 8 C.F.R
§ 208.31(f)-(g), and a hearing was set for June 1, 2017. The
notice setting the hearing informed Sorto Bonilla that the
“Immigration Judge may allow you to be represented in this
proceeding, at no expense to the Government, by an attorney,”
and that “[i]f you wish to be so represented, your attorney or
representative should appear with you at this hearing.” A.R.
34. 2
       On June 1, Sorto Bonilla appeared before the IJ. The IJ
began the proceedings by stating that Sorto Bonilla was
“present, and he does not have legal consultation today.” A.R.
22. Sorto Bonilla did not request that the IJ postpone the

       2
          Sorto Bonilla’s counsel confirmed that a hearing was
set for June 1, 2017, but despite the plain language of the notice
that counsel should appear, he assumed it would be held
telephonically.




                                4
hearing or contact his attorney. In an affidavit submitted four
days after the hearing, Sorto Bonilla declared that he did not
request that his attorney be present because he believed his
attorney was listening on the phone and his counsel submitted
a letter notifying the IJ of counsel’s error in not appearing at
the hearing.

       The IJ reviewed Sorto Bonilla’s reasonable fear
interview, and Sorto Bonilla reiterated (1) he “felt fear” but
was not physically threatened or harmed by gang members
who attempted to recruit him or asked him for money, A.R. 25;
(2) he did not report the incidents to the El Salvadorian police;
and (3) he was afraid to return to El Salvador because he
believed the gangs would assume he has money since he would
be returning from the United States. He added that “I have [a]
fear of returning, because I don’t feel safe in El Salvador.”
A.R. 27.

        Based on the record and Sorto Bonilla’s statements, the
IJ concluded that although Sorto Bonilla had a subjective fear
of returning to El Salvador, resistance to gangs and a
generalized fear of crime were not grounds for protection
because they were not tied to a protected ground. As a result,
the IJ concurred with the asylum officer’s negative reasonable
fear determination and returned Sorto Bonilla’s case to DHS
for his removal to El Salvador.
        Sorto Bonilla petitions for review. 3


       3
        The day after the reasonable fear proceeding, Sorto
Bonilla retained new counsel, who moved to reopen and
reconsider the negative reasonable fear finding. The motion
was denied on the ground that the IJ’s determination could not




                               5
                              II 4

                               A

        The Immigration and Nationality Act (“INA”) and
implementing regulations provide for the streamlined removal
of an alien who was previously subject to a removal order but
illegally returned to the United States. Pursuant to 8 U.S.C. §
1231(a)(5), “[i]f the Attorney General finds that an alien has
reentered the United States illegally after having been removed
. . . under an order of removal, the prior order of removal is
reinstated from its original date.” The prior removal order “is


be appealed, 8 C.F.R. § 208.31(g)(1). Sorto Bonilla does not
challenge that ruling.
        4
          DHS had the authority to reinstate Sorto Bonilla’s
prior removal order under 8 U.S.C. § 1231(a)(5) and the
exclusive jurisdiction to make the negative reasonable fear
determination under 8 C.F.R. § 208.31(a). The IJ, as part of
the Executive Office for Immigration Review, has exclusive
jurisdiction to review a negative reasonable fear determination
under 8 C.F.R. §§ 208.31(a),(f),(g). If the IJ concurs with the
asylum officer’s decision that the applicant did not establish a
reasonable fear of persecution or torture, then “the case shall
be returned to [USCIS] for removal of the alien. No appeal
shall lie from the [IJ]’s decision.” 8 C.F.R. § 208.31(g)(1).
The IJ’s decision thus constitutes a final order of removal over
which we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).
We review Sorto Bonilla’s constitutional due process claim de
novo under 8 U.S.C. § 1252(a)(2)(D). See Leslie v. Att’y Gen.,
611 F.3d 171, 175 (3d Cir. 2010).




                               6
not subject to being reopened or reviewed, the alien is not
eligible and may not apply for any relief . . . , and the alien shall
be removed under the prior order at any time after the reentry.”
Id. There is an exception to this bar. An alien may seek
withholding of removal if he has a reasonable fear of
persecution. Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35
n.4 (2006) (citing 8 U.S.C. 1231(b)(3)(A)). Thus, a returning
removed alien “has no right to a hearing before an immigration
judge” unless the alien “expresses a fear of returning to the
country designated in that order,” in which case the alien is
“immediately referred to an asylum officer for an interview to
determine whether the alien has a reasonable fear of
persecution or torture.” 8 C.F.R. § 241.8(a),(e). The purpose
of the “reasonable fear . . . screening process [is to] ensure
proper consideration of applications for withholding [of
removal] . . . in cases subject to reinstatement of a previous
removal order.” Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999).

       When an alien is referred to an asylum officer for a
reasonable fear determination, the officer “conduct[s] the
interview in a non-adversarial manner, separate and apart from
the general public,” where the alien “may be represented by
counsel . . . and may present evidence . . . relevant to the
possibility of persecution or torture.” 8 C.F.R. § 208.31(c). At
the end of the interview, the asylum officer reviews with the
alien a “summary of the material facts” and provides the alien
with “an opportunity to correct any errors therein.” Id.
       If the asylum officer concludes that the alien has met the
reasonable fear standard, 5 the officer must refer the case to an

       5
        Under this standard, the alien must demonstrate a
“reasonable possibility that he or she would be persecuted on




                                 7
IJ “for full consideration” of the alien’s eligibility for
withholding of removal, which is conducted with all
procedural requirements attendant to removal proceedings, see
id. § 208.16, including appeals to the Board of Immigration
Appeals. Id. § 208.31(e). If, on the other hand, an officer
concludes that the alien does not have a reasonable fear of
persecution or torture, then the alien may request that an IJ
review the officer’s “negative determination.” Id. § 208.31(f)-
(g). If a request for IJ review is made, then the IJ is provided
with the “record of determination, . . . the asylum officer’s
notes, the summary of the material facts, and other materials
upon which the determination was based.” Id. § 208.31(g). If
the IJ “concurs with the asylum officer’s determination that the
alien does not have a reasonable fear of persecution or torture,”
the alien is removed. Id. § 208.31(g)(1).

                               B

       Sorto Bonilla argues his due process rights were
violated because the IJ reviewed the asylum officer’s negative
reasonable fear determination without his counsel present and
failed to inquire about whether Sorto Bonilla wanted his
counsel to be present for the IJ’s review proceedings, and he
was prejudiced by his counsel’s absence. We disagree. 6



account of his or her race, religion, nationality, membership in
a particular social group or political opinion, or a reasonable
possibility that he or she would be tortured in the country of
removal.” 8 C.F.R. § 208.31(c).
       6
         Because Sorto Bonilla alleges only that his due process
rights were violated, we need not address the standard for
reviewing the IJ’s negative reasonable fear determination.




                               8
        The Fifth Amendment guarantees aliens due process in
all phases of deportation proceedings. Serrano-Alberto v.
Att’y Gen. U.S., 859 F.3d 208, 213 (3d Cir. 2017). In formal
removal proceedings, the Fifth Amendment and the
immigration laws provide aliens with the right to counsel. 8
U.S.C. § 1229a(b)(4); Leslie v. Att’y Gen. of U.S., 611 F.3d
171, 180-81 (3d Cir. 2010). In such proceedings, IJs are
required to “[a]dvise the [alien] of his or her right to
representation, at no expense to the government, by counsel of
his or her own choice . . . and require the [alien] to state then
and there whether he or she desires representation,” “[a]dvise
the [alien] of the availability of pro bono legal services for the
immigration court location at which the hearing will take place,
and ascertain that the [alien] has received a list of such pro
bono legal services providers.” 8 C.F.R. § 1240.10(a)(1)-(2).
An IJ’s failure to comply with that regulation entitles the alien
to a new removal hearing without a showing of prejudice
because the regulation protects a fundamental constitutional
right. Leslie, 611 F.3d at 180. The right to counsel in removal
proceedings is respected because of the complexity of “the
adjudicatory process” in the immigration context, and because
of “the grave consequences of removal.” Id. at 181.

       Sorto Bonilla, however, is not in removal proceedings.
Rather, he is in reasonable fear screening proceedings. 8
C.F.R. § 208.31(a). The purpose of the screening process is
simply to determine whether an alien is entitled to a “full
consideration of the request for withholding of removal,” id. §
208.31(e), which, if he is, means that his request would be
“adjudicated by the immigration judge in accordance of the
provisions of § 208.16 [for the withholding of removal],” id.;
see also id. § 1240.10(a). Although the regulations state that
an alien “may be represented by counsel” at the screening




                                9
process’ first step—the interview with the asylum officer, id. §
208.31(c)—the regulations are silent as to whether an alien
may have counsel present at the second step of the screening
process before the IJ, id. § 208.31(g). 7 Thus, Sorto Bonilla has
not shown that the regulations explicitly invested him with a
right to counsel at the IJ’s review hearing, and we need not
reach the question here whether he otherwise has such a right,
both because Sorto Bonilla “was not denied the opportunity to
obtain the counsel of his choice[;] [h]is attorney simply failed
to come through for him,” Ponce-Leiva v. Ashcroft, 331 F.3d
369, 376 (3d Cir. 2003), and because he concedes he was
required to show prejudice and we conclude he has failed to do
so.

       That is, first, even though the regulations are silent,
Sorto Bonilla was notified that the IJ may allow him to be
represented at the proceeding and instructed that his counsel
should be present if he wished to be represented. In addition,
at the beginning of the proceeding, the IJ noted that Sorto
Bonilla did not have counsel present, further reflecting that the
IJ was cognizant of the value of legal counsel and did not
deprive him of it.




       7
         Notably, the asylum officer conducts the interview in
a “non-adversarial manner” and the alien’s counsel may
present a statement “at the end of the interview,” and the
asylum officer “in his or her discretion, may place reasonable
limits on . . . the length of the statement.” 8 C.F.R. § 208.31(c).
Thus, to the extent this provision grants a right to counsel, it is
far more limited than that provided to aliens in removal
proceedings. See 8 C.F.R. § 1240.10(a).




                                10
        Moreover, Sorto Bonilla has not shown that he suffered
prejudice by the absence of his counsel. Sorto Bonilla’s
counsel was present for the interview with the asylum officer
and confirmed that the facts Sorto Bonilla presented were
accurate. Sorto Bonilla argues that, had his counsel been
present for the IJ review, he would have explained that Sorto
Bonilla belongs to a particular social group, namely
“repatriated El Salvadorians.” Petitioner Brief 27-28. No
counsel, however, could change the fact that Sorto Bonilla had
not faced past persecution, and he has provided no facts or case
law showing the El Salvadoran society would recognize
repatriated El Salvadorians as a particular social group. This
is likely because the caselaw on this subject is decidedly
against him. See Khan v. Att’y Gen., 691 F.3d 488, 498 (3d
Cir. 2012) (rejecting as “too amorphous” a proposed social
group of “secularized and westernized Pakistanis perceived to
be affiliated with the United States”). Thus, Sorto Bonilla has
not shown his counsel’s presence would have changed the
outcome of his reasonable fear review proceedings. Therefore,
Sorto Bonilla did not suffer prejudice.

                              III

       For the foregoing reasons, we will deny the petition.




                              11
