Livingston Toney v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIVINGSTON TONEY,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-70611
Agency No. A024-685-212
MEMORANDUM*
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.
FILED
MAY 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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 portions of the
administrative record—by which he could have presented his case. But Toney
never attempted to present any issue except the due process claim. On this record,
we cannot say that the absence of transcripts prevented Toney from reasonably
presenting his case.
Second, even if Toney had established the requisite fundamental unfairness,
he failed to demonstrate that the absence of transcripts prejudiced him. To show
prejudice, Toney must show “plausible grounds of relief which might have been
available to him but for the deprivation of rights.” Id. (quoting United States v.
Alvarado-Delgado, 98 F.3d 492, 494 (9th Cir. 1996)). However, a “vague
assertion that, if a [transcript] [were] available, [an alien] might be able to locate
some defect in the proceeding” does not suffice to show prejudice. Id. Toney
alleges here that counsel may have been ineffective, including by failing to object

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to the admission of certain documents under the Fourth Amendment. But Toney
candidly admits that he seeks to review the transcripts to search “for . . . evidence
showing ineffective representation of Mr. Toney.” And his Fourth Amendment
argument—that counsel should have attempted to suppress his I-213 and Record of
Sworn Statement under the Fourth Amendment on the ground that Los Angeles
International Airport is not the functional equivalent of a border—is foreclosed by
precedent. See United States v. Arnold, 533 F.3d 1003, 1006 (9th Cir. 2008)
(“Searches of international passengers at American airports are considered border
searches because they occur at the ‘functional equivalent of a border.’”).
Accordingly, Toney has advanced “‘no more than speculation to support his
assertion of prejudice, and he has failed to set forth any plausible argument or
factual basis’ that would support” his argument that he suffered prejudice.
Medina, 236 F.3d at 1032 (alterations omitted) (quoting United States v. Corrales-
Beltran, 192 F.3d 1311, 1319 (9th Cir. 1999)).
In sum, we cannot conclude that the absence of some transcripts violated
Toney’s Fifth Amendment right to due process.
PETITION FOR REVIEW DENIED.

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