United States Court of Appeals

for the Fifth Circuit

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No. 23-60581

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Hector Vargas Jimenez, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

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Appeal from the Board of Immigration Appeals

Agency No. A075 906 709

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Before Southwick, Haynes, and Douglas, Circuit Judges.

Per Curiam:

*

Hector Vargas Jimenez petitions for review of the Board of Immigration Appeals’ denial of his motion for reopening and reconsideration. He 

argues the Department of Justice’s involvement in the immigration proceedings creates a conflict of interest that violates his due process right. That

argument fails, and we DENY his petition for review.

Vargas Jimenez, a citizen of Mexico, entered the United States in 

1990, and, except for one day in 2000, he has remained in the United States. 

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 28, 2024

Lyle W. Cayce

Clerk

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No. 23-60581

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In 2018, the Department of Homeland Security initiated removal 

proceedings against him. Vargas Jimenez conceded that he was removable 

but sought cancellation. After an immigration court denied his request, he 

appealed to the Board of Immigration Appeals (“BIA”), alleging various 

procedural errors. The BIA dismissed his appeal. Vargas Jimenez moved for 

reopening and reconsideration, attaching evidence he claimed was previously 

unavailable. The BIA denied the motion.

In this court, Vargas Jimenez argues for the first time that the 

Department of Justice’s role as adjudicator in the prior proceedings and as 

respondent in this court creates a conflict of interest that violates his due 

process right to an impartial decisionmaker.

1 This argument swims against 

the current of precedent. In a 1999 opinion, we rejected the argument that 

the Immigration and Naturalization Service’s comingled prosecutorial and 

adjudicatory functions deprived an alien in removal proceedings of his due 

process right. United States v. Benitez-Villafuerte, 186 F.3d 651, 659–60 (5th 

Cir. 1999). We relied on the following Supreme Court explanation of the 

validity of the procedures for removal:

Petitioner would have us hold that the presence of this 

relationship so strips the hearing of fairness and impartiality as 

to make the procedure violative of due process. The 

contention is without substance when considered against the 

long-standing practice in deportation proceedings, judicially 

approved in numerous decisions in the federal courts, and 

against the special considerations applicable to deportation 

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1 Both the immigration courts and the BIA are part of the Executive Office for 

Immigration Review, which is within the Department of Justice. 8 C.F.R. §§ 1003.1(a)(1), 

1003.9(a). The Attorney General has ultimate authority over the Executive Office for 

Immigration Review. 8 U.S.C. § 1103(g).

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which the Congress may take into account in exercising its 

particularly broad discretion in immigration matters.

Id. (quoting Marcello v. Bonds, 349 U.S. 302, 311 (1955)).

Our 1999 opinion also relied on more recent Supreme Court authority 

regarding the procedures that may be constitutionally applied to an 

administrative agency: “it is . . . very typical for the members of 

administrative agencies to receive the results of investigations, to approve the 

filing of charges or formal complaints instituting enforcement proceedings, 

and then to participate in the ensuing hearings.” Id. at 660 (quoting Withrow 

v. Larkin, 421 U.S. 35, 56 (1975)). We summarized the analysis in Larkin as 

meaning “the fact that the initial charge in an administrative proceeding is 

brought by the same agency who later adjudicates the matter is not, in and of 

itself, violative of due process.” Id. Therefore, we held that “we will not 

presume bias from . . . mere institutional structure.” Id. Without a showing 

of prejudgment, “the commingling of prosecutorial and adjudicative 

functions” does not “pose[] a risk of impermissible bias.” Id.

Those functions are less comingled here than in Benitez-Villafuerte.

See id. at 659. At no point in this case did the Department of Justice act as 

prosecutor and adjudicator in the same proceeding. When the Department 

of Justice acted as adjudicator, the Department of Homeland Security acted 

as prosecutor. 8 C.F.R. §§ 1240.1, 1240.2 (immigration court proceedings); 

id. § 1003.1 (BIA proceedings). Now, when the Department of Justice acts 

as respondent to the petition for review, this court serves as the adjudicator. 

8 U.S.C. § 1252(b). If, as we held in Benitez-Villafuerte, mixing those 

functions in the same proceeding does not, without more, violate due 

process, then neither does performing them in separate proceedings. See 

Benitez-Villafuerte, 186 F.3d at 659–60. Vargas Jimenez offers no evidence, 

aside from the mere structure of the immigration system, to suggest that the 

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immigration court or the BIA prejudged his case. That is not enough under 

our precedents. Id. Vargas Jimenez’s due process claims therefore fail.

2

The petition for review is DENIED.

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2 Because we find no error, we need not reach the question whether error of this 

kind would be structural.

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