NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 19-3652 ____________ MORDECHI YITZCHOK SAMET, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A028-513-166) Immigration Judge: Jack H. Weil Submitted under Third Circuit LAR 34.1(a) On June 19, 2020 Before: JORDAN, MATEY and ROTH, Circuit Judges (Opinion filed December 29, 2020 ) O P I N I ON* * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. ROTH, Circuit Judge: I. This case requires us to determine whether a transcript from an immigration hearing, containing numerous “indiscernibles” due to recording technical issues, infringes an alien’s procedural due process rights under the Fifth Amendment. Because we conclude it is unlikely that a better transcript would have changed the outcome of this case, we will deny Mordechai Yitzchok Samet’s petition for review. II. Samet, a native of Israel, arrived in the United States in 1987. In 2003, he was convicted of thirty-five counts of various offenses, including racketeering; mail, wire, and bank fraud; conspiracy to commit money laundering; and conspiracy to make false claims in connection with federal income tax returns. He was sentenced to 327 months’ imprisonment. In 2018, Samet was charged with being removable in connection with his convictions. Conceding the charges, Samet applied for readjustment of status and requested a discretionary waiver based on the extreme hardship that would befall his wife if he were removed. In support of his application, he submitted a written declaration describing his history, why he committed the crimes, how his incarceration impacted his family, how he repented and took responsibility for his past acts, and how he productively used his time in prison to counsel other inmates. He testified before the IJ to this effect. Samet encountered technical difficulties when testifying because he was appearing by video from the federal correctional institution where he was serving his sentence. The IJ noted that there was “feedback” and “echoing,” which appeared to be caused by Samet’s 2 testifying in a large room. The IJ asked Samet to reposition himself in the room and speak loudly, slowly, and distinctly; he asked Samet’s counsel to phrase his questions so as to repeat each of Samet’s answers, which both Samet’s counsel and DHS counsel agreed was “a good way forward;”1 he asked a correctional officer in the room to assist Samet; and he invited Samet’s counsel to ask leading questions. The IJ also gave Samet the option of rescheduling the hearing for a later date. Samet preferred to continue. The transcript of Samet’s testimony spanned thirty-seven pages and contained ninety-three “indiscernible” notations. The IJ who heard Samet’s testimony retired before issuing a decision. The new IJ relied on the transcript to conclude that Samet’s criminal convictions were too serious to overcome the equities and denied the application for adjustment of status. Samet appealed, and the ...
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