NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________ No. 20-3054 __________ MARIO ENRIQUE MATEO-DIEGO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA __________ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A216-430-384) Immigration Judge: Pallavi S. Shirole __________ Submitted Under Third Circuit L.A.R. 34.1(a) on July 6, 2021 Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges (Opinion filed July 19, 2021) __________ OPINION* __________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge. Mario Enrique Mateo-Diego, a native and citizen of Guatemala, petitions for review of a decision by the Board of Immigration Appeals (BIA) affirming the denial of his application for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Because we conclude that his due process rights were not violated and that the BIA applied the correct standard of review, we will deny the petition. A. Discussion1 On appeal, Mateo-Diego raises two arguments: (1) that his procedural due process rights were violated when his wife was not permitted to give telephonic testimony at his merits hearing before the Immigration Judge (IJ); and (2) that the BIA failed to apply the correct legal standard in reviewing the IJ’s determination that his wife and children would not suffer “exceptional and extremely unusual hardship” upon his removal. 1. Mateo-Diego’s Due Process Rights Were Not Violated Mateo-Diego argues that the IJ violated his due process rights by denying his request to have his wife, who was the principal witness in support of his application, testify by telephone. To establish a due process violation, a noncitizen must show “(1) that he was prevented from reasonably presenting his case and (2) that substantial prejudice resulted.” Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007) (internal quotation marks omitted). 1 The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b) and 1240.15, and we exercise jurisdiction under 8 U.S.C. § 1252(a). We lack “jurisdiction to review the denial of discretionary relief, including cancellation of removal,” but “may . . . review ‘constitutional claims or questions of law raised upon a petition for review.’” Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010) (quoting 8 U.S.C. § 1252(a)(2)(D)). 2 And to show “substantial prejudice,” the noncitizen must demonstrate that the procedural violation has “the potential for affecting the outcome of the deportation proceedings.” Serrano-Alberto v. Att’y Gen., 859 F.3d 208, 213 (3d Cir. 2017) (emphasis in original) (internal quotation marks and alteration omitted). Neither element is present here. First, the IJ did not prevent Mateo-Diego from reasonably presenting his case. Because of the ongoing COVID-19 pandemic, Mateo-Diego’s wife was not permitted to leave the shelter in which she and the couple’s children were residing and, consequently, she could not appear at Mateo-Diego’s hearing in person. The IJ’s refusal to permit her to testify by phone thus effectively precluded her from giving live testimony, at least at the …
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