DocketNumber: 08-4437-ag
Citation Numbers: 363 F. App'x 795
Judges: Ann, Cabranes, Debra, Jose, Livingston, Richard, Wesley
Filed Date: 2/3/2010
Status: Non-Precedential
Modified Date: 8/1/2023
08-4437-ag Hospedales v. Holder BIA Vomacka, IJ A040 232 305 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 3 rd day of February, two thousand ten. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 RICHARD C. WESLEY, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _________________________________________ 12 13 BRIAN HOSPEDALES, 14 Petitioner, 15 16 v. 08-4437-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, * 20 Respondent. 21 _________________________________________ 22 23 FOR PETITIONER: Michael E. Swartz, Marji Molavi, 24 Schulte Roth & Zabel LLP, New York 25 New York. * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 1 FOR RESPONDENT: Tony West, Assistant Attorney 2 General; Barry J. Pettinato, 3 Assistant Director; Charles E. 4 Canter, Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, D.C. 8 9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED, that the petition for review 12 is DENIED. 13 Brian Hospedales, a native and citizen of Trinidad and 14 Tobago, seeks review of an August 27, 2008, order of the BIA 15 affirming the July 14, 2006, decision of Immigration Judge 16 (“IJ”) Alan A. Vomacka denying his application for deferral 17 of removal under the Convention Against Torture (“CAT”). In 18 re Brian Hospedales, No. A040 232 305 (B.I.A. Aug. 27, 19 2008). We assume the parties’ familiarity with the 20 underlying facts and procedural history in this case. 21 Because Hospedales is removable by reason of having 22 committed a criminal offense covered by 8 U.S.C. 23 § 1227(a)(2)(A)(iii), we lack jurisdiction to review the 24 agency’s factual findings and discretionary determinations. 25 See8 U.S.C. § 1252
(a)(2)(C). However, we retain 26 jurisdiction to consider Hospedales’ constitutional claim 2 1 that the IJ denied him due process by declining to permit 2 his two witnesses to testify and that he was prejudiced by 3 such decision. See8 U.S.C. § 1252
(a)(2)(D). We review de 4 novo such constitutional claims. Guo Qi Wang v. Holder, 583 5F.3d 86
, 90 (2d Cir. 2009). 6 In the immigration context, “[t]o establish a violation 7 of due process, an alien must show that she was denied a 8 full and fair opportunity to present her claims or that the 9 IJ or BIA otherwise deprived her of fundamental fairness,” 10 Burger v. Gonzales,498 F.3d 131
, 134 (2d Cir. 2007) 11 (internal quotation marks omitted), and that she was 12 prejudiced by such error, see United States v. Sanchez, 22513 F.3d 172
, 176 (2d Cir. 2000). Hospedales has demonstrated 14 neither. 15 Pursuant to the statute governing removal proceedings, 16 an “alien shall have a reasonable opportunity . . . to 17 present evidence on the alien’s own behalf.” 8 U.S.C. 18 § 1229a(b)(4)(B). When an applicant proffers readily 19 available live testimony going to the crux of his asylum 20 application, an IJ fails to comply with the mandate of 21 8 U.S.C. § 1229a(b)(4)(B) by precluding the applicant from 22 offering such testimony based on an arbitrary assumption 3 1 that the testimony to be offered will have little value or 2 will not be credible. See Biao Yang v. Gonzales,496 F.3d 3
268, 272 (2d Cir. 2007) (noting that an IJ’s credibility 4 assessment must not be arbitrary or based on bald 5 speculation); see also Lopez-Umanzor v. Gonzales,405 F.3d 6
1049, 1056 (9th Cir. 2005) (“Due process principles prohibit 7 an IJ from declining to hear relevant testimony because of a 8 prejudgment about the witness’s credibility or the probative 9 value of [the] testimony”. 10 In Hospedales’ proceedings, the IJ did not decline to 11 hear any immediately available live witness testimony. In 12 fact, on the day of his merits hearing, Hospedales informed 13 the IJ of his intention to either present long distance 14 telephonic testimony from his two witnesses or to have one 15 of his witnesses testify live two weeks later. The IJ 16 reasonably declined to grant Hospedales’ late request. See 17 Local Operating Procedures, Office of the Immigration Judge, 18 New York, New York, Procedure 3(D) (providing that “[a] 19 party seeking a continuance of any scheduled hearing shall 20 file a written motion as soon as the reason for such request 21 is known, but not less than ten (10) days prior to the 22 scheduled hearing date.”). 4 1 Assuming that Hospedales’ request had been timely, the 2 IJ reasonably noted the Immigration Court’s expense in 3 making two lengthy long distance telephone calls in order to 4 obtain such testimony and expressed concern about his 5 inability to verify the identity of the witnesses over the 6 telephone. See Djedovic v. Gonzales,441 F.3d 547
, 551 (7th 7 Cir. 2006) (noting “there is nothing arbitrary about 8 favoring live over remote testimony (as every federal court 9 does) or favoring written reports from experts over phone 10 connections.”). The IJ also did not err in declining to 11 continue Hospedales’ proceedings for two weeks to allow one 12 of the witnesses to testify in person, indicating a 13 preference for avoiding delays in cases involving detained 14 aliens and recognizing that “any number of things” could 15 interfere with the witness’s travel to the United States and 16 the Court’s availability to hear his testimony at that time. 17 See Morgan v. Gonzales,445 F.3d 549
, 551 (2d Cir. 2006). 18 Although there is some indication that the IJ may have 19 considered the reliability of Hospedales’ witnesses to a 20 certain extent prior to deciding whether to allow them to 21 testify, the IJ ultimately found that they were useful 22 sources of information and reviewed the affidavits they had 5 1 submitted. Thus, because the IJ did not decline to permit 2 immediately available live testimony in Hospedales’ 3 proceedings and because the IJ’s decision to rely on the 4 witnesses’ statements as opposed to their testimony appears 5 to have been based solely on the facially neutral 6 administrative reasons that he provided for that decision, 7 we do not find that the IJ arbitrarily denied Hospedales a 8 fundamentally fair hearing in violation of his right to due 9 process. 10 Likewise, Hospedales has not demonstrated that he was 11 prejudiced by the IJ’s decision declining to permit his 12 witnesses to testify because, contrary to his contention, 13 there was no nexus between the rejected testimony and the 14 issue that the IJ ultimately found dispositive. “Prejudice 15 is shown where defects in the deportation proceedings may 16 well have resulted in a deportation that would not otherwise 17 have occurred.” United States v. Copeland,376 F.3d 61
, 73 18 (2d Cir. 2004) (internal quotation marks omitted). The 19 appropriate test for prejudice is a “reasonable probability” 20 that the results of the proceedings would have been 21 different absent error in the proceedings.Id.
A 22 reasonable probability “is a probability sufficient to 6 1 undermine confidence in the outcome.” United States v. 2 Scott,394 F.3d 111
, 118 (2d Cir. 2005). 3 There is not a reasonable probability that the excluded 4 testimony in Hospedales’ proceedings would have altered the 5 IJ’s conclusion that, although Hospedales demonstrated that 6 he might be tortured if removed to Trinidad and Tobago, he 7 did not establish that such torture would more likely than 8 not occur. See8 C.F.R. § 1208.16
(c). Indeed, because the 9 IJ believed that Hospedales might be mistreated in Trinidad 10 and Tobago, witness testimony providing specific examples of 11 isolated incidents of the mistreatment of deportees would 12 not have directly addressed the IJ’s ultimate conclusion 13 that Hospedales failed to demonstrate that he would more 14 likely than not suffer such mistreatment if removed to 15 Trinidad and Tobago. See Wang v. Ashcroft,320 F.3d 130
, 16 144 n.20 (2d Cir. 2003) (“To be entitled to relief under 17 CAT, . . . [an applicant] must establish that there is 18 greater than a fifty percent chance (i.e. that it is ‘more 19 likely than not’) that he will be tortured upon return to 20 his or her country of origin.” (quoting 8 C.F.R. 21 § 208.16(c)(4))). Thus, we do not find that Hospedales was 22 prejudiced by the IJ’s decision declining to permit his 23 witnesses to testify. 7 1 For the foregoing reasons, the petition for review is 2 DENIED. As we have completed our review, any stay of 3 removal that the Court previously granted in this petition 4 is VACATED, and any pending motion for a stay of removal in 5 this petition is DISMISSED as moot. Any pending request for 6 oral argument in this petition is DENIED in accordance with 7 Federal Rule of Appellate Procedure 34(a)(2), and Second 8 Circuit Local Rule 34.1(b). 9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, Clerk 11 12 13 8
George Morgan v. Alberto R. Gonzales, United States ... , 445 F.3d 549 ( 2006 )
United States v. Kevin Eric Scott , 394 F.3d 111 ( 2005 )
Natasa Djedovic v. Alberto R. Gonzales, Attorney General of ... , 441 F.3d 547 ( 2006 )
United States v. Richard Copeland, Also Known as Jamal Owen , 376 F.3d 61 ( 2004 )
Burger v. Gonzales , 498 F.3d 131 ( 2007 )
mu-xing-wang-v-john-ashcroft-united-states-attorney-general-united , 320 F.3d 130 ( 2003 )