In a decision released last week, the Tenth Circuit considered a respondent’s claim that the poor quality of the transcript of his removal proceedings constituted a violation of his due process rights. 8 U.S.C. § 1229a(b)(4)(C); 8 C.F.R. § 1240.9.
Nonetheless, violation of this statutory and regulatory requirement is not enough to mandate reversal or remand. Witjaksono, slip op. at 10. “Rather, to demonstrate a denial of due process and obtain relief, an alien must show that the deficient transcript prejudiced his ability to perfect an appeal.” Witjaksono, slip op. at 10.
The Tenth Circuit then explained certain instances where prejudice could not be shown.
“An alien may not show prejudice if the information omitted from a transcript is immaterial, nor may a petitioner demonstrate prejudice if the omissions in the record, assuming they were corrected in the manner proposed by the petitioner, would not alter the outcome of the proceedings. Neither may a petitioner meet the required showing of prejudice when the gaps in the transcript could reasonably be recreated but the alien fails to do so.” Witjaksono, slip op. at 11 (internal citations omitted).
The Court then explained that a respondent who wishes to contest the validity of removal proceedings based on the quality of the transcript must utilize the BIA’s transcript correction process. Witjaksono, slip op. at 11-12. According to the Tenth Circuit, “Under these rules and practices, an alien should immediately file with the BIA Clerk’s Office a ‘Request for Correction of Transcript,’ alerting the Board to the defect.” Witjaksono, slip op. at 12 (citing BIA Practice Manual, ch. 4.2(f)(iii), at 51).
“If the missing portions of a transcript can be reasonably recreated, the affidavit should attest to the missing testimony. When it would be unreasonable to expect the alien to recreate the missing portions of a transcript—if, for example, the omissions are from the testimony of a third-party witness—the alien should explain that it is impractical to do so. In the latter situation, the alien should also file a motion to remand the case for further factfinding.” Witjaksono, slip op. at 12.
Because Witjaksono’s due process claim rested on “missing material in his own testimony and he did not attempt to recreate it,” the Tenth Circuit denied his claim. Witjaksono, slip op. at 13-14.