Jaime Gonzalez Giraldo v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 18-3648 _____________ JAIME GONZALEZ GIRALDO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent ____________ On Petition for Review of a Decision of the United States Department of Justice Board of Immigration Appeals (Agency No. A200-687-507) Immigration Judge: Charles M. Honeyman _____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 24, 2019 Before: SMITH, Chief Judge, CHAGARES and GREENAWAY, JR., Circuit Judges. (Filed: August 15, 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. CHAGARES, Circuit Judge. Jaime Gonzalez Giraldo petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the denial of his motion to reinstate his previously withdrawn Form I-589, in which he sought asylum, withholding of removal, and withholding of removal under the Convention Against Torture (“CAT”). We will deny the petition. I. We write principally for the parties and therefore recite only those facts necessary to our decision. Giraldo is a Colombian citizen who entered the United States in 2008 on a visitor visa when he was fifteen years old. Giraldo was subsequently served with a Notice to Appear, charging him with remaining in this country without authorization after the expiration of his visa. During a hearing before an immigration judge (“IJ”) in 2011, Gonzalez, through his counsel, conceded that he was removable. Giraldo filed his Form I-589 in 2012. However, during a September 2014 hearing, Giraldo — after consulting with his attorney — agreed to withdraw his I-589 application with prejudice and seek instead either a voluntary departure order or some form of relief that might become available to him due to a change in the law. Neither Giraldo nor his counsel stated during the hearing that the withdrawal of the I-589 was based on a promise of prosecutorial discretion by the Department of Homeland Security (“DHS”). Giraldo’s next few hearings included discussion of seeking relief from removal by applying for the Deferred Action for Childhood Arrivals (“DACA”) program and having his mother, who had since become a lawful permanent resident, submit an I-130 (Petition 2 for Alien Relative) on his behalf. The IJ granted continuances over a nearly three-year period so that Giraldo could pursue those forms of relief, but Giraldo was not able to file a DACA application while the program was still available to him. Additionally, although the IJ continued the case at least twice in 2016 for Giraldo to pursue prosecutorial discretion, that form of relief was no longer a viable option after the rules regarding prosecutorial discretion changed in 2017.1 During a November 8, 2017 hearing before the IJ, Giraldo’s counsel — acknowledging that the I-589 application had been withdrawn — sought a merits hearing on the application “given the fact that [Giraldo] ha[d] no other option.” Administrative Record (“AR”) 214. In a subsequent written motion to reinstate the application, Giraldo argued that he “only withdrew his ...

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