Miller v. Attorney General of the United States
Opinion of the Court
OPINION OF THE COURT
Newcomb Mark Alexander Miller, proceeding pro se, seeks review of the Board of Immigration Appeals’ (“BIA” or “Board”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision to deny Miller’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We will deny the petition.
Miller, a native and citizen of Jamaica, was admitted to the United States in Janu
Based on his criminal conviction, the United States Department of Homeland Security initiated removal proceedings against Miller by filing a Notice to Appear, charging him with removability under INA § 237(a)(2)(iii) for having been convicted of an aggravated felony as defined in INA § 101(a)(43)(B), and pursuant to INA § 237(a)(2)(B)(i) for having been convicted of a controlled substances violation as defined in section 102 of the Controlled Substances Act, 21 U.S.C. § 801 et seq.
Following his administrative hearing, the IJ found Miller removable as charged based on his conviction and therefore ineligible for asylum and withholding of removal.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a).
Miller argues in his petition for review that he did not receive a full and fair hearing before the IJ, in violation of his due process rights. Specifically, he asserts that the agency: 1) improperly conducted the proceedings via video teleconference; 2) failed to comply with the procedures set forth in 8 C.F.R. § 1240.10; 3) improperly denied him a continuance after he informed the IJ that he did not receive notice that his hearing date had been rescheduled; and 4) failed to afford him an opportunity to present his claims because the transcript indicates that portions of his testimony were indiscernible.
Although we have held that there is no constitutional right to asylum, aliens facing removal are entitled to due process. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir.
Miller’s argument that the agency violated his right to a fair hearing by conducting the hearing via video teleconference is without merit. As the government correctly states, the statute governing Miller’s hearing, 8 U.S.C. § 1229a, specifically authorizes proceeding by means of a video teleconference. See 8 U.S.C. § 1229a(b)(2)(A)(iii). Miller cites no precedent stating the utilization of video teleconferencing violates due process. We note, however, that the Fourth Circuit has held that video conferencing might result in prejudice where it impedes an IJ’s ability to assess credibility or the format otherwise restricts an alien’s ability to present his or her case. See Rusu v. INS, 296 F.3d 316, 322-24 (4th Cir. 2002). Here, the IJ assumed that Miller’s testimony was true, but determined that he was legally ineligible for asylum or withholding of removal and that he had failed to show a likelihood of torture. After reviewing the record, we conclude that Miller has not demonstrated that the use of video teleconferencing prevented the IJ from properly considering the record or testimony so as to have deprived him of a reasonable opportunity to be heard. Moreover, Miller presents no basis upon which we might conclude that the IJ would have ruled differently had he appeared in person.
Next, Miller argues that the IJ failed to comply with the hearing requirements of 8 C.F.R. § 1240.10
Miller’s third claim also lacks merit. He argues that the IJ violated his due process rights, when she denied his request
Miller claims that because the IJ refused to grant him a continuance at the September 22nd hearing, he was unable to present an affidavit from his father. However, he does not explain how his father’s affidavit would have demonstrated his likely torture by public officials in Jamaica as he has not indicated in his brief what the affidavit might have stated.
Lastly, Miller argues that he was prejudiced from the omission of indiscernible or inaudible words or phrases in the hearing transcript. An alien is entitled to administrative review of the IJ’s decision, which demands a reasonably accurate and complete transcript to allow for meaningful and adequate appellate review. See Teng v. Mukasey, 516 F.3d 12, 18 (1st Cir. 2008) (citations omitted). However, a petitioner must demonstrate that a more complete or accurate transcription “ ‘would likely have made a dispositive difference in the outcome of the proceeding.’” Id. at 17-18 (quoting Harutyunyan v. Gonzales, 421 F.3d 64, 70 (1st Cir. 2005)); Garzas-Moreno v. Gonzales, 489 F.3d 239, 241-42 (6th Cir. 2007) (petitioner furnished with inaccurate or incomplete transcript must show that complete and accurate transcript would have changed the outcome of the case) (citation omitted). Miller does not identify a single incident of indiscernible or inaudible testimony in the transcript that might have established his eligibility for CAT protection. Accordingly, because Miller has not demonstrated prejudice, his due process claim must fail.
Having concluded that Miller was given adequate opportunity to present his case, we agree with the BIA that he was unable to identify any record evidence compelling a finding that it is more likely than not that he will be tortured if returned to Jamaica by or with the acquiescence of public officials. See Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)). Accordingly, we will deny the petition for review.
. We note that Miller proceeded pro se throughout the course of his administrative proceedings.
. Miller claimed that he would likely be tortured because he is the son of a former Jamaican police detective.
. We note that section 242(a)(2)(C) of the INA precludes review of removal orders entered against criminal aliens, like Miller, who have been found removable based on a conviction for a controlled substance violation or an aggravated felony. However, Miller argues that the agency violated his due process rights, which raises a constitutional question over which we may exercise jurisdiction. See INA § 242(a)(2)(D); Papageorgiou. v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005).
. Pursuant to 8 C.F.R. § 1240.10(a)(2) and (3), "[i]n a removal proceeding, the immigration judge shall ... [ajdvise the respondent of the availability of free legal services provided by organizations and attorneys ... located in the district where the removal hearing is being held” and shall "[ajscertain that the respondent has received a list of such programs!.]”
. We note that Miller also alleges that the IJ did not have jurisdiction to preside over his case because she was sitting in Elizabeth, New Jersey and he was in custody in York, Pennsylvania. (See Pet. Br. at 5.) However, Miller cites no authority, nor are we aware of any, supporting this assertion. Moreover, the claim does not present a valid due process argument.
. Moreover, as noted, Miller had over six months since his case was last continued to obtain additional evidence, including an affidavit from his father.
Reference
- Full Case Name
- Newcomb Mark Alexander MILLER, a/k/a Mark Miller, a/k/a Gary Williams, a/k/a Warren Miller, a/k/a Aubrey Tullock v. ATTORNEY GENERAL OF the UNITED STATES
- Status
- Published