NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 20-3054 __________

MARIO ENRIQUE MATEO-DIEGO, Petitioner v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA __________

On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A216-430-384) Immigration Judge: Pallavi S. Shirole __________

Submitted Under Third Circuit L.A.R. 34.1(a) on July 6, 2021

Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges

(Opinion filed July 19, 2021)

__________

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.

Mario Enrique Mateo-Diego, a native and citizen of Guatemala, petitions for review

of a decision by the Board of Immigration Appeals (BIA) affirming the denial of his

application for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Because we

conclude that his due process rights were not violated and that the BIA applied the correct

standard of review, we will deny the petition.

A. Discussion1

On appeal, Mateo-Diego raises two arguments: (1) that his procedural due process

rights were violated when his wife was not permitted to give telephonic testimony at his

merits hearing before the Immigration Judge (IJ); and (2) that the BIA failed to apply the

correct legal standard in reviewing the IJ’s determination that his wife and children would

not suffer “exceptional and extremely unusual hardship” upon his removal.

1. Mateo-Diego’s Due Process Rights Were Not Violated

Mateo-Diego argues that the IJ violated his due process rights by denying his request

to have his wife, who was the principal witness in support of his application, testify by

telephone. To establish a due process violation, a noncitizen must show “(1) that he was

prevented from reasonably presenting his case and (2) that substantial prejudice resulted.”

Fadiga v. Att’y Gen.,

(3d Cir. 2007) (internal quotation marks omitted).

1 The BIA had jurisdiction under

(b) and 1240.15, and we exercise jurisdiction under

(a). We lack “jurisdiction to review the denial of discretionary relief, including cancellation of removal,” but “may . . . review ‘constitutional claims or questions of law raised upon a petition for review.’” Pareja v. Att’y Gen.,

(3d Cir. 2010) (quoting

(a)(2)(D)). 2 And to show “substantial prejudice,” the noncitizen must demonstrate that the procedural

violation has “the potential for affecting the outcome of the deportation proceedings.”

Serrano-Alberto v. Att’y Gen.,

(3d Cir. 2017) (emphasis in original)

(internal quotation marks and alteration omitted). Neither element is present here.

First, the IJ did not prevent Mateo-Diego from reasonably presenting his case.

Because of the ongoing COVID-19 pandemic, Mateo-Diego’s wife was not permitted to

leave the shelter in which she and the couple’s children were residing and, consequently,

she could not appear at Mateo-Diego’s hearing in person. The IJ’s refusal to permit her to

testify by phone thus effectively precluded her from giving live testimony, at least at the

hearing as originally scheduled. The IJ therefore gave Mateo-Diego the option to continue

the hearing until his wife could appear in person. It was Mateo-Diego who elected to

proceed with the hearing and to rely only on his testimony and his wife’s written affidavit.

Neither can Mateo-Diego make the requisite showing of prejudice. According to

Mateo-Diego, his wife would have testified by telephone about the impact of his removal

on her and their family. But her affidavit, which the IJ took into account, already explained

that she was dependent on Mateo-Diego for financial support, that, as a consequence of his

detention pending removal proceedings, she had been forced to move to a shelter and rely

on government benefits, and that she could no longer afford medication for their daughter’s

severe eczema. See Romanishyn v. Att’y Gen.,

, 185–86 (3d Cir. 2006)

(holding that petitioner suffered no prejudice from IJ’s denial of his request to call

additional witnesses because IJ accepted and considered those witnesses’ affidavits). And

although Mateo-Diego maintains that his wife’s telephonic testimony would have

3 “exceed[ed] the scope of her written statement” and “more fully explained” the hardship

his family faced, Pet’r Br. 19, he does not specify what evidence that testimony would have

added.

These sorts of general allegations that live testimony would have “more fully

explained” circumstances already in the record are insufficient to show prejudice. Id.; see

Singh v. Gonzales,

(3d Cir. 2006) (holding that 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). Because the IJ reviewed her

affidavit and considered the family circumstances to which Mateo-Diego’s wife would

have testified, the IJ’s denial of the request for telephonic testimony did not have the

potential to affect the outcome of the proceedings.

In sum, because Mateo-Diego did not make either of the showings required, the BIA

correctly concluded his due process rights were not violated.2

2. The BIA Applied the Correct Standard of Review

Mateo-Diego also argues that the BIA failed to apply the correct standard of review

to the IJ’s determination that his family would not suffer “exceptional and extremely

unusual hardship,” which is a prerequisite for cancellation of removal under 8 U.S.C.

Because we conclude that Mateo-Diego was not prejudiced by the IJ’s refusal to 2

let his wife testify over the phone, we need not consider his arguments that (a) agency regulations and guidance from the Executive Office of Immigration Review concerning the COVID-19 pandemic made telephonic testimony the “only way” to receive a full and fair hearing, Pet’r Br. 14, and (b) the IJ’s offer of a continuance to allow his wife to appear in person forced Mateo-Diego to choose between a due process violation and arbitrary detention. 4 § 1229b(b)(1)(D).3 The BIA reviews the factual findings underpinning the IJ’s hardship

determination for clear error. Kaplun v. Att’y Gen.,

, 270–71 (3d Cir. 2010).

It reviews de novo whether those facts “amount to exceptional and extremely unusual

hardship.”

(internal quotation marks omitted).

According to Mateo-Diego, the BIA’s observation that “emotional hardship” and

“continued financial difficulties . . . will likely result,” A.R. 4 (emphasis added), was an

impermissible act of de novo fact-finding, made necessary by the IJ’s failure to make

“predictive factual findings” of the hardship his family would suffer upon his removal.

Pet’r Br. 25. This argument rests on a flawed premise: While the IJ may not have made

an explicit “prediction,” she did find that Mateo-Diego’s wife had willingly separated from

him in the past, that her diabetes did not prevent her from working or supporting the family,

and that the couple’s daughter would continue to receive eczema treatment through

Medicaid. And the IJ made these findings in the course of explaining why Mateo-Diego

had failed to establish “that his qualifying relatives would suffer exceptional and extremely

unusual hardship should the respondent be removed.” A.R. 163 (emphases added). These

factual findings were, at least implicitly, a predictive finding of what would follow Mateo-

Diego’s removal and were sufficient to enable the BIA to evaluate hardship without finding

facts of its own.

3 To the extent that Mateo-Diego’s arguments challenge the agency’s weighing of the evidence in support of his hardship claim, we lack jurisdiction to review that “quintessential[ly] discretionary judgment.” Hernandez-Morales v. Att’y Gen.,

, 249 (3d Cir. 2020). We do, however, retain jurisdiction to consider whether the BIA committed legal error by applying an incorrect standard of review. See Alimbaev v. Att’y Gen.,

(3d Cir. 2017). 5 In short, the BIA articulated the proper standard of review, described the facts the

IJ found, concluded that those findings were not clearly erroneous, and agreed with the IJ

that the hardship they established did not meet the threshold of “exceptional and extremely

unusual.”

B. Conclusion

For the foregoing reasons, we will deny Mateo-Diego’s petition for review.

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