Candido Lopez-Galeno v. Attorney General United States of America ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 22-2425
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CANDIDO LOPEZ-GALENO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_____________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-494-492)
Immigration Judge: Mirlande Tadal
_____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 20, 2023
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Before: KRAUSE, BIBAS, and MATEY, Circuit Judges
(Filed August 11, 2023)
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OPINION*
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
MATEY, Circuit Judge.
Petitioner Candido Lopez-Galeno is subject to removal but claims Convention
Against Torture (“CAT”) protection, citing the threat of violence from police and rival
gangs in Mexico. But the Board of Immigration Appeals denied his claim based on
substantial evidence after a fair hearing, so we must deny the petition.
I.
Lopez-Galeno joined La Gran Familia Mexicana (“LGFM”), a gang in his
hometown of San Miguel. After arriving in the United States without admission or
parole, he continued his membership and memorialized his affiliation with tattoos
including the letters “F” and “M” on his chest—standing for “Familia Mexicana”—and
“PMS” on his stomach for “Primos” (his branch of LGFM). After rising in the ranks to
sublieutenant, Lopez-Galeno added a tattoo to his left hand depicting a rosary and three
dots signifying his new rank.
Lopez-Galeno eventually had a change of heart and decided to leave the gang. He
spoke with Eladio “Cholo” Diaz, the “absolute leader” of LGFM in both the U.S. and
Mexico, who “respected” Lopez-Galeno’s decision. A.R. 220, 221, 169. But a few
months later, Lopez-Galeno stabbed a member of a rival gang to death. He pleaded guilty
to aggravated manslaughter and was sentenced to twenty-two years’ imprisonment.
In 2021, Lopez-Galeno was placed in removal proceedings under 8 U.S.C.
§ 1182(a)(6)(A)(i) and 1182(a)(2)(A)(i)(I). Lopez-Galeno admitted the allegations, but
2
sought deferral of removal under the CAT, 8 C.F.R. §§ 1208.16–.18. With relief denied
by the IJ and the BIA, Lopez-Galeno now petitions for review.1
II.
We consider each of Lopez-Galeno’s arguments and find no errors of law. First,
Lopez-Galeno argues he was deprived of due process when the IJ cut short a line of
questioning about the appearance of LGFM’s leader, Cholo. An important issue, Lopez-
Galeno argues, because Cholo and another gang member were killed in Mexico when
rivals identified them as LGFM members by their tattoos.
We see no error. The Fifth Amendment guarantees due process to noncitizens at
removal hearings, including the fundamental requirement of an “opportunity to be heard
at a meaningful time and in a meaningful manner.” Dia v. Ashcroft, 353 F.3d 228, 239
(3d Cir. 2003) (en banc) (citation omitted). This includes “key protections,” like receipt
of “a full and fair hearing that allows . . . a reasonable opportunity to present evidence.”2
Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir. 2017) (citation omitted). But
outside of a few “structural error[s] that necessarily make[] proceedings fundamentally
unfair”—such as deprivation of a right to counsel or an unbiased judge—due process
1
The BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3), and we have
limited jurisdiction to review the Board’s decision under 8 U.S.C. § 1252(a)(4), see
Nasrallah v. Barr, 140 S. Ct. 1683, 1690–92 (2020); 8 C.F.R. § 1208.18(e). “[W]e review
the BIA’s legal determinations de novo,” Zhi Fei Liao v. Att’y Gen., 910 F.3d 714, 718
(3d Cir. 2018) (citation omitted), and its findings of fact in denying CAT protection for
substantial evidence. Nasrallah, 140 S. Ct. at 1692.
2
Similarly, noncitizens have a statutory right under the Immigration and
Nationality Act to a “reasonable opportunity” to “present evidence on [their] own
behalf.” 8 U.S.C. § 1229a(b)(4)(B).
3
violations require a finding of prejudice. Aquino v. Att’y Gen., 53 F.4th 761, 766 (3d Cir.
2022).
Lopez-Galeno suffered no prejudice. He has not identified what additional
testimony he would have given, suggesting only that it would have bolstered the
resemblance between his and Cholo’s tattoos. But the IJ agreed the two men had similar
tattoos, so Lopez-Galeno has not shown the additional evidence “would have made a
difference.”3 Id. at 767.
Second, Lopez-Galeno argues the Agency failed to aggregate the risks of his
return and erroneously viewed his claim of danger as a “series of suppositions” based on
“an unlikely hypothetical chain of events.” A.R. 6, 54–55, 90–91. But the Agency’s
“chain of events” language referred to the events necessary for any of the groups Lopez-
Galeno identifies to spot his tattoos, recognize their nature,4 and then torture Lopez-
Galeno as a result. That is too attenuated a tale to find a greater-than-not likelihood of
future torture. Cf. In re J-F-F-, 23 I. & N. Dec. 912, 917–18 & n.4 (A.G. 2006). And, in
any event, the IJ specifically concluded Lopez-Galeno “has not demonstrated the
3
Serrano-Alberto highlights the kinds of prejudice needed for a due process
violation. In that case, the IJ engaged in inappropriate conduct with a “pervasiveness and
egregiousness,” interrupting and cabining “critical” testimony, focusing on “irrelevant
details, making findings contradicted by the record, and maintaining a condescending and
belligerent tone.” 859 F.3d at 224. Here, the IJ cut short a single descriptive discussion
because she accepted Lopez-Galeno’s point. That fell within her “broad discretion to
conduct and control immigration proceedings.” Matter of J-G-T-, 28 I. & N. Dec. 97, 102
(BIA 2020).
4
The IJ reasonably found Lopez-Galeno’s tattoos unlikely to be recognized. They
include no gang colors; the visible tattoos are not particular to LGFM; and the tattoos
more specific to the Gran Familia are covered by ordinary clothing.
4
cumulative risk from gangs, cartels and the police in Mexico makes it more likely than
not that he will be tortured upon return.” A.R. 55, 91. Similarly, the BIA noted that “[t]he
Immigration Judge considered the aggregate risk of harm from rival gangs, cartels, and
the police, and found, without clear error, that [Lopez-Galeno] does not face a ‘more
likely than not’ risk” of torturous harm. A.R. 8. Both showing Lopez-Galeno’s risks were
considered in their aggregate.
Lopez-Galeno counters that the IJ ignored that he could also be targeted as a rival
criminal deportee or recruited because of his experience and knowledge as a high-ranking
member of LGFM. But either would still require being recognized as an LGFM member
or mistaken as a member of another gang or cartel. And, as the IJ noted, such events are
unlikely because Lopez-Galeno has no visible tattoos that would identify his past
association.
Third, Lopez-Galeno argues the Agency misunderstood the scope of cartel
activity. He says the IJ improperly reduced the weight of Dr. Kirkland’s expert report
because that report focused on cartel conditions in Tierra Caliente instead of San Miguel.
But the IJ’s decision was reasonable: both Dr. Kirkland’s testimony and the cartel map in
the record support the conclusion that San Miguel is close to but outside Tierra Caliente.
Similarly, Lopez-Galeno points out the IJ incorrectly stated the Jalisco Cartel does not
currently operate in Puebla. The BIA reasonably concluded that this was only a slight
5
misstatement by the IJ, as the Jalisco Cartel operates in Puebla only by “proxy,”
predominately engaging in fuel theft, and does not pose a major threat.5 A.R. 8 n.8.
Finally, Lopez-Galeno argues the Agency made an “implied determination
regarding Mr. Lopez-Galeno’s ability to relocate,” Opening Br. 28, by stating that he will
“live with family in San Miguel Tilapa and scrupulously avoid gang involvement,” A.R.
55, 91. Not so. “Ability to relocate” refers to one of the relevant considerations in
assessing the likelihood of torture: whether “the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured.” 8 C.F.R.
§ 1208.16(c)(3)(ii). But San Miguel is Lopez-Galeno’s hometown and where his family
resides, so returning there would not be “relocating” within Mexico.6
III.
For these reasons, we will deny Lopez-Galeno’s petition for review.
5
Since there is no likelihood of torture, we need not consider whether public
officials would acquiesce. See Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017).
6
Lopez-Galeno also challenges the finding that he will “scrupulously avoid gang
involvement,” A.R. 55, but that is merely acceptance of his statement that he does not
“want to have anything else to do with gangs,” A.R. 182.
6