Sorto Bonilla v. Attorney General United States, 891 F.3d 87

Background

Sorto Bonilla, a Salvadoran national, was previously removed in 2010, reentered the U.S. unlawfully, and was subject to reinstatement of a prior removal order under 8 U.S.C. § 1231(a)(5).
After detention in May 2017 he expressed fear of return and underwent a USCIS asylum officer reasonable-fear interview (four sessions; counsel participated by phone for the fourth interview).
Asylum officer issued a negative reasonable-fear determination, finding credible testimony but concluding the harm did not meet persecution/torture thresholds; Sorto requested IJ review.
Notice of the IJ hearing stated the IJ may allow representation and that counsel should appear if the alien wished representation; at the IJ hearing counsel was not present and the IJ noted no legal consultation.
The IJ reviewed the asylum officer’s record, found Sorto’s fear subjective and rooted in generalized gang violence/crime (not a protected ground), concurred with the negative determination, and ordered return to DHS for removal.
Sorto petitioned for review arguing a Fifth Amendment due process violation because the IJ conducted the IJ-stage reasonable-fear review without his counsel and failed to inquire whether counsel should be present; he also alleged prejudice from counsel’s absence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Sorto had a due process/right-to-counsel violation when the IJ reviewed a negative reasonable-fear finding without counsel present	Sorto: IJ violated due process by proceeding without counsel and failing to ask if counsel was desired; absence was prejudicial	Government: Reasonable-fear screening is distinct from formal removal; regs permit counsel at asylum-officer interview but are silent for IJ review; notice and IJ’s remarks sufficed; no prejudice shown	Court: Denied relief — no due process violation shown; Sorto failed to prove prejudice and counsel’s absence did not change outcome
Whether the regulations guarantee counsel at IJ stage of reasonable-fear review	Sorto: Implied right to representation at IJ review	Government: Regulations explicitly allow counsel at asylum officer interview but are silent for IJ review; no explicit right at IJ stage	Court: Did not find an explicit regulatory right to counsel at IJ review and did not decide broader question because no prejudice shown
Whether Sorto demonstrated prejudice from counsel’s absence	Sorto: Counsel would have argued membership in a particular social group ("repatriated El Salvadorians") and preserved other arguments	Government: Counsel had participated at the asylum interview and confirmed facts; proposed social group unsupported by facts or controlling caselaw	Court: No prejudice — lack of past persecution and weak legal basis for the proposed social group mean counsel’s presence would not have changed result
Whether IJ complied with notice/assistance requirements	Sorto: IJ should have done more to secure counsel or advise about representation	Government: Notice informed Sorto counsel should appear; IJ stated no counsel present at hearing	Held: Procedural notice and IJ’s acknowledgment were sufficient under the circumstances; no automatic entitlement to remand without prejudice shown

Key Cases Cited

Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) (reentry after removal and limits on reopening)
Leslie v. Attorney General of U.S., 611 F.3d 171 (3d Cir. 2010) (right-to-counsel protections and relief for regulatory noncompliance in removal proceedings)
Serrano-Alberto v. Attorney General U.S., 859 F.3d 208 (3d Cir. 2017) (due process applies throughout deportation proceedings)
Ponce-Leiva v. Ashcroft, 331 F.3d 369 (3d Cir. 2003) (no relief where alien’s counsel failed to appear and there was no denial of opportunity to obtain counsel)
Khan v. Attorney General, 691 F.3d 488 (3d Cir. 2012) (limits on what constitutes a cognizable particular social group)