Niania v. Gonzales

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 15, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
G EO RG E N IA N IA ,
Petitioner,
v. No. 06-9525
(No. A95-230-364)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General,
Respondent.
OR D ER AND JUDGM ENT *
Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.
Petitioner G eorge N iania is a native and citizen of New Zealand. He
overstayed his authorization to remain in the United States and conceded
removability but requested relief in the form of cancellation of removal. After
reviewing the relevant factors specified in 8 U.S.C. § 1229b, an immigration
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
judge (IJ) denied cancellation of removal, concluding that petitioner had failed to
provide “evidence which would distinguish this case from those in which the,
‘ordinary level’ of hardship would result in the denial of the application for
cancellation of removal.” Admin R. at 66. This conclusion in effect rejected
petitioner’s argument that removal would result in exceptional and extremely
unusual hardship to petitioner’s older son, whose asthma, petitioner argued,
would worsen if he was forced to live in New Zealand’s more humid climate.
Petitioner was granted voluntary departure.
The Board of Immigration Appeals (BIA) affirmed the IJ’s order without
opinion, making the IJ’s decision the final agency ruling for purposes of appeal.
Tulengkey v. Gonzales, 425 F.3d 1277, 1279 (10th Cir. 2005). In his appeal,
petitioner makes six ostensibly separate arguments, which actually reduce to
three: he challenges the sufficiency of the evidence underlying the IJ’s finding
that exceptional hardship did not exist to justify cancellation of removal; he
argues that he was denied due process because of the incomplete trial transcript;
and he argues that removing his United States citizen child from the United States
is unconstitutional.
As for the first argument, this court is without jurisdiction to review the
IJ’s discretionary rulings under 8 U.S.C. § 1229b. Ekasinta v. Gonzales, 415 F.3d
1188, 1191 (10th Cir. 2005). Petitioner’s third argument is similarly without
merit. “[T]he incidental impact visited upon the [citizen] children of deportable,
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illegal aliens does not raise constitutional problems.” Delgado v. INS, 637 F.2d
762, 764 (10th Cir. 1980).
Petitioner’s due process argument, however, gives us more pause. He
maintains that, out of the ninety pages of hearing transcript, there are at least
thirty-one indications that statements were indiscernible.
Due process requires that an alien at a removal hearing must have “an
opportunity to be heard, to cross-examine witnesses against him, and to produce
evidence . . . and that the decision be supported by substantial evidence.”
Hadjimehdigholi v. INS, 49 F.3d 642, 649 (10th Cir. 1995) (internal quotation
marks omitted). One of an applicant’s rights in an immigration proceeding is that
“a complete record shall be kept of all testimony and evidence produced at the
proceeding.” 8 U.S.C. § 1229a(b)(4)(C). It is the government’s “duty to prepare
a reasonably accurate, reasonably complete transcript.” Ortiz-Salas v. INS,
992 F.2d 105, 106 (7th Cir. 1993). The absence of a “reasonably complete
transcript” can “hamper[] the ability of an alien to mount a challenge to the
proceedings that were conducted before the IJ” and “foreclose effective
administrative and judicial review.” Kheireddine v. Gonzales, 427 F.3d 80, 84
(1st Cir. 2005) (quotation omitted).
To a establish a due process violation based on an “inaccurate or
incomplete transcription,” however, an alien must show “specific prejudice to his
ability to perfect an appeal.” Id. at 85 (quotation omitted). “[P]rejudice to
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warrant a remand cannot be shown if the transcription failure does not make any
difference to the outcome of the review.” Id. at 86. In other words, prejudice
requires a showing “that a complete and accurate transcript would have changed
the outcome of the case.” Ortiz-Salas, 992 F.2d at 106.
W e have reviewed the hearing testimony, paying particular attention to the
portions afflicted with transcription problems. 1 The existing transcript provides
more than enough evidence of petitioner’s child’s medical condition and the
possible psychiatric component should his asthma worsen. This slightly flawed
transcript did not prejudice petitioner’s ability to appeal the denial of cancellation
of removal to the BIA or to seek review in this court. M oreover, petitioner does
not claim that the “indiscernible” statements could have supplied outcome-
changing facts. W ithout a showing that transcription errors prejudiced
petitioner’s ability to present his argument, we must conclude that the transcript’s
deficiencies do not amount to a due process violation. See id. at 106-07 (holding
that hearing transcript with 292 “inaudible” or “indiscernible” notations did not
violate applicant’s due process rights because he could not demonstrate
prejudice).
Petitioner’s unopposed motion to file his reply brief out of time is
GRANTED. To the extent petitioner challenges the discretionary rulings
1
The great majority of problems occurred during the testimony of
Dr. Benjamin O’Brien, a psychiatrist dealing with psychiatric problems in
asthmatic children, who testified telephonically over speaker phone.
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supporting the denial of cancellation of removal under 8 U.S.C. § 1229b, we
DISM ISS the petition for review for lack of appellate jurisdiction. W e DENY the
rem ainder of the petition for review.
Entered for the Court
W esley E. Brown
District Judge
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