Johan Gonzalez Aquino v. Attorney General United States

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 21-3317 _______________ JOHAN MANUEL GONZALEZ AQUINO, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA _______________ On Petition for Review of a Final Order of the Board of Immigration Appeals (Agency No. A057-135-446) Immigration Judge: Mirlande Tadal _______________ Argued: September 14, 2022 Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges (Filed: November 22, 2022 ) _______________ Stephanie E. Norton [ARGUED] SETON HALL UNIVERSITY SCHOOL OF LAW CENTER FOR SOCIAL JUSTICE 833 McCarter Highway Newark, NJ 07102 Counsel for Petitioner Robert Lundberg [ARGUED] Sarah Pergolizzi UNITED STATES DEPARTMENT OF JUSTICE OFFICE OF IMMIGRATION LITIGATION P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent _______________ OPINION OF THE COURT _______________ BIBAS, Circuit Judge. “No harm, no foul” is usually good law. If someone spots a flaw in his agency proceeding and asks for a remand, he nor- mally must show that the flaw prejudiced his outcome. Excep- tions to this requirement are rare. Johan Manuel Gonzalez Aquino says the procedural flaws in his removal hearing qualify for such exceptions. They do not. Nor did they prejudice the outcome. So we will deny his petition for review. I. GONZALEZ AQUINO FACES REMOVAL Gonzalez Aquino is a citizen of the Dominican Republic and a lawful permanent resident of the United States. Over the past decade, he has been convicted of burglary, escape, theft, trespass, and more. His two most recent convictions, theft and conspiracy to commit theft, were aggravated felonies and thus 2 made him removable. So the government began removal proceedings. Gonzalez Aquino sought to defer his removal under the Convention Against Torture. He claimed that if he returned to the Dominican Republic, he would face two separate threats. First, as a teenager, he got into a gambling dispute with a man who belonged to a well-known criminal gang. The man threat- ened to kill him, so he moved to the United States. Second, while in the United States, Gonzalez Aquino was arrested for murdering another Dominican. The murder charges were later dropped, but the damage was done: the mur- der and arrest had been publicized in the Dominican Republic. The victim’s family then threatened to kill him if he returned. After a hearing, the Immigration Judge rejected his argu- ments, finding that he had not shown that he would likely be tortured or that the Dominican government would acquiesce to any torture. The proceedings were less than ideal: the judge used legal jargon without explaining it, said little about what evidence he needed to present, and asked few questions. Plus, the videoconference was malfunctioning: though the judge could see him, he could not see her. But the Board of Immigra- tion Appeals still dismissed the appeal. Gonzalez Aquino now petitions for review, challenging both the hearing’s procedure and the Board’s substantive deci- sion. Because he is removable for committing an aggravated felony, we lack jurisdiction to review the Board’s factual or discretionary decisions. 8 U.S.C. § 1252(a)(2)(C). But we …

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