         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   See 8 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.   See 8 U.S.C. § 1252(a)(2)(D).      We review de

4    novo such constitutional claims.       Guo Qi Wang v. Holder, 583

5    F.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, 225

13   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.   See 8 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




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