Background
Ulises Pena-Lopez, a native and citizen of Mexico, petitioned for review of two orders from the Department of Homeland Security: an order reinstating his prior removal order and a subsequent negative reasonable-fear determination. The petitioner alleged procedural defects including the lack of a signed warrant, an alleged beating during detention, and the absence of counsel during the reinstatement hearing.
The court’s reasoning
The court reviewed the reasonable-fear determination for substantial evidence and the procedural challenges de novo. Regarding persecution, the petitioner admitted he did not fear harm based on race, religion, nationality, or political opinion, but only for being an illegal immigrant, which is not a protected ground. Regarding torture, the court found the petitioner’s testimony that a police officer said ‘There is a guy pointing the finger at you’ insufficient to prove government acquiescence, distinguishing it from cases where attackers dressed as police. Regarding procedural defects, the court held that the petitioner must show prejudice to obtain relief for a due process violation. Since the petitioner never contested his identity and refused to sign a statement contesting the determination, his claim that counsel would have changed the outcome was too speculative.
What it means going forward
The denial of the petition affirms the reinstatement of the prior removal order and the negative reasonable-fear determination, leaving the petitioner subject to removal.