NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 19-2347 ________________

BEN TURAY, Petitioner

v.

ATTORNEY GENERAL, UNITED STATES OF AMERICA ________________

On Petition for Review of a Decision of the Board of Immigration Appeals (A045-234-090) Immigration Judge: John P. Ellington ________________

Submitted Under Third Circuit L.A.R. 34.1(a) January 16, 2020

Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.

(Opinion filed: January 17, 2020)

________________

OPINION* ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Ben Turay, a lawful permanent resident charged with removability due to a

controlled substance conviction,1 petitions for review of a final administrative order of the

Board of Immigration Appeals (BIA) denying his application for cancellation of removal

under 8 U.S.C. § 1229b(a). We will deny the petition.

Discussion2

On appeal, Turay raises a single argument: that his procedural due process rights

were violated when his 15-year-old daughter was not able to give live testimony at his

merits hearing before an Immigration Judge (IJ) due to prison rules barring her from the

building. To prevail on procedural due process claims arising from removal proceedings,

a petitioner must show “substantial prejudice,” meaning that “the infraction has the

potential for affecting the outcome of the deportation proceedings.” Serrano-Alberto v.

Att’y Gen.,

(3d Cir. 2017) (alteration omitted) (internal quotation marks

and citation omitted). Turay makes two arguments in support of substantial prejudice but,

even assuming a due process violation occurred, neither meets that standard.

First, Turay argues that his daughter’s live testimony “had much to add to his case”

and that she would have testified about “the relationship she had with her father and the

1 Turay conceded the legal and factual basis for his removability below and does not challenge his removability in this appeal. 2 We lack “jurisdiction to review the denial of discretionary relief, including cancellation of removal.” Pareja v. Att’y Gen.,

(3d Cir. 2010). “We may, however, review ‘constitutional claims or questions of law raised upon a petition for review.’”

(quoting

(a)(2)(D)). We review the BIA’s decisions of law de novo. Castro v. Att’y Gen.,

(3d Cir. 2012). 2 hardship she would suffer if he was removed.” Pet.’s Br. 27, 28–29. But the daughter’s

written statement did discuss her relationship with her father and the hardship she would

suffer if he was removed: It discussed her father’s role in her life, her desire to keep him

home, and the concrete ways he took care of her and her family and looked out for their

safety. And Turay does not suggest any specific material evidence that his daughter’s live

testimony would have added to the record. This lack of specificity about what, precisely,

her testimony would have added dooms his prejudice argument. Cf. Singh v. Gonzales,

(3d Cir. 2006) (finding no prejudice resulted from petitioner’s alleged

inability to call all the witnesses he desired because he did not explain the legal significance

of their potential testimony).

Second, Turay contends that live testimony is so materially different from written

testimony that its preclusion necessarily causes substantial prejudice. That argument,

however, is one we have previously rejected. See Romanishyn v. Att’y Gen.,

,

185–86 (3d Cir. 2006) (finding no prejudice where petitioner was “permitted to submit

affidavits from the witnesses the court did not allow him to call”). And even if live

testimony could have affected the decision of the IJ, in this case, Turay prevailed before

the IJ and ascribes error in this appeal to the BIA. Yet Turay makes no argument as to why

the BIA—who would not have the benefit of seeing and hearing Turay’s daughter but

would merely read a transcript of her testimony—might reach a different decision from its

review of that transcript than it would from reviewing her affidavit. In sum, Turay’s second

argument also fails to establish substantial prejudice.

3 Conclusion

For the foregoing reasons, we will deny Turay’s petition for review.

4