NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LIVINGSTON TONEY, No. 16-70611 Petitioner, Agency No. A024-685-212 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 13, 2019** Pasadena, California Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,*** District Judge. Petitioner Livingston Toney seeks review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal and denying his motion for remand. On appeal to the BIA, Toney alleged that he suffered a violation of his * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. right to due process because the absence of some transcripts of his hearings before the immigration judge (IJ) precluded him from successfully prosecuting his appeal. After conducting our own de novo review, we conclude that the BIA correctly determined that Toney’s due process claim lacked merit. See Vilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012) (“[W]e review legal and constitutional questions, including alleged due process violations, de novo.”). Although immigration proceedings are not subject to the full panoply of constitutional protections, they must nonetheless “conform to the Fifth Amendment’s due process requirement.” Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009). In the immigration context, a due process violation occurs when “(1) the proceeding [is] so fundamentally unfair that the alien [is] prevented from reasonably presenting his case, and (2) the alien demonstrates prejudice, which means that the outcome of the proceeding may have been affected by the alleged violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir. 2006) (internal quotation marks and citation omitted). Toney fails to satisfy either prong of the test. First, Toney has not demonstrated that the absence of transcripts rendered his appeal to the BIA so fundamentally unfair as to prevent him from reasonably presenting his case. We have held that the mere absence of a tape recording or transcript does not categorically satisfy the fundamental unfairness requirement. 2 See United States v. Medina, 236 F.3d 1028, 1031 (9th Cir. 2001). Of course, the absence of a transcript “alters the nature of judicial review,” but it does not “effectively eliminate[] the right of the alien to obtain judicial review.” Id. at 1032 (alteration in original) (quoting United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987)). Here, Toney has not shown that the absence of some transcripts of his initial hearings before the IJ prevented him from reasonably presenting his case to the BIA. As we have noted in similar cases, Toney had other means available to him—including witness testimony, his own memory, and other ...
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