Miller v. Attorney General of the United States

397 F. App'x 780
CourtCourt of Appeals for the Third Circuit
DecidedOctober 15, 2010
DocketNo. 10-1762
StatusPublished

This text of 397 F. App'x 780 (Miller v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miller v. Attorney General of the United States, 397 F. App'x 780 (3d Cir. 2010).

Opinion

OPINION OF THE COURT

PER CURIAM.

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[782]*782ary 1982 as a non-immigrant B-2 visitor. Miller became a lawful permanent resident in April 1984. In April 2004, he was convicted in the United States District Court for the District of Virginia of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). Miller was sentenced to 185 months of imprisonment.

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.1 See INA §§ 208(b)(2)(A)(ii) and 241(b)(3). The IJ also concluded that although Miller had testified credibly, he had not met his burden of proving that he would more likely than not be tortured by or with the consent or acquiescence of public officials in Jamaica.2 Miller filed a timely appeal with the BIA and, on February 19, 2010, the Board issued an order dismissing the appeal and affirming the IJ’s application for deferral of removal under the CAT. The Board noted in its decision that Miller had not challenged his conviction on appeal, which rendered him ineligible for asylum and withholding of removal. This petition for review followed.

This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a).3 “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). The BIA’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

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.[783]*7831990). In this context, the Due Process Clause entitles an alien to “a full and fair hearing and a reasonable opportunity to present evidence.” Romanishyn v. Att’y Gen., 455 F.8d 175, 185 (3d Cir.2006). To prevail on a due process claim, an alien must show substantial prejudice. Id.

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. § 1240.104 when, during the September 22nd merits hearing, she failed to ask him if he was represented by counsel or advise him of the availability of pro bono legal services. The argument is meritless. At an earlier hearing, in January 2008, the IJ specifically told Miller, “You should have received a list of legal counsel, Mr. Miller. It’s a list of attorneys and legal advisors who may be able to represent you at little or no cost.” (See Administrative Record (“A.R.”) at 91.) The IJ then asked him if he had received a copy of the list. (Id.) Miller replied that he thought he had received one, but was provided with another copy. (Id.) Thereafter, at various other hearings, Miller was repeatedly asked if he wished to continue pro se and he answered in the affirmative. (Id. at 135, 159, 162.) Obviously, the facts in this case are distinguishable from those in Leslie v. Att’y Gen., 611 F.3d 171, 182-83 (3d Cir.2010), where, in that case, the IJ failed to advise the alien of the availability of free legal services and neglected to confirm his receipt of the list of available programs. Here, the record amply demonstrates that the IJ complied with the requirements of 8 C.F.R.

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397 F. App'x 780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-attorney-general-of-the-united-states-ca3-2010.