In addition to showing a due process violation, an applicant generally must show prejudice. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014); Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002). Cf. United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014) (holding that a showing of prejudice was not necessary where agency violated regulation that protected fundamental due process rights); Lazaro v. Mukasey, 527 F.3d 977, 981 (9th Cir. 2008) (explaining that prejudice is not necessary where agency action was ultra vires). “
An alien bears the burden of proving the alleged violation prejudiced his or her interests.” Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011). Prejudice is shown where the violation potentially affected the outcome of the proceedings. See Dent v. Holder, 627 F.3d 365, 373 (9th Cir. 2010) (to show prejudice petitioner must show “the outcome of proceeding “may have been affected” by the alleged violation) (internal quotation and citation omitted); Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir. 2010); Cano-Merida, 311 F.3d at 965.
“The standard does not demand absolute certainty … .” Zolotukhin v. Gonzales, 417 F.3d 1073, 1077 (9th Cir. 2005). An applicant “need not explain exactly what evidence he would have presented in support of his application, and [the court] may infer prejudice in the absence of any specific allegation as to what evidence [the applicant] would have presented.” Cano-Merida, 311 F.3d at 965 (internal quotation marks and citation omitted); see also Ching v. Mayorkas, 725 F.3d 1149, 1156-57 (9th Cir. 2013) (“The prejudice standard does not demand absolute certainty; rather prejudice is shown if the violation potentially affects the outcome of the proceedings.” (internal quotation marks and citation omitted)); Zolotukhin, 417 F.3d at 1077; Colmenar v. INS, 210 F.3d 967, 972 (9th Cir. 2000).
“‘To show prejudice, [a petitioner] must present plausible scenarios in which the outcome of the proceedings would have been different if a more elaborate process 03/2015 E-3 were provided.’” Tamayo-Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013) (quoting Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (en banc)) (discussing prejudice and concluding that petitioner failed to establish prejudice where he failed to show outcome would have been different where no relief was available to him). Examples of cases where prejudice has been established include: Bondarenko v. Holder, 733 F.3d 899, 907 (9th Cir. 2013) (IJ violated due process in not allowing the petitioner a continuance to investigate a forensic report where the government did not provide a reasonable opportunity to investigate the report); Dent, 627 F.3d at 374-75 (concluding prejudice was plain where government failed to provide petitioner with documents contained in his Alien File that might show petitioner is a naturalized United States citizen); Cruz Rendon, 603 F.3d at 1111 (concluding procedural deficiencies may have affected the outcome of proceedings where IJ denied continuance and limited testimony); Cinapian v. Holder, 567 F.3d 1067, 1075-76 (9th Cir. 2009) (concluding petitioners were prejudiced where government failed to disclose DHS forensic reports in advance of the hearing or make the reports’ author available for cross-examination); Circu v. Gonzales, 450 F.3d 990, 994-95 (9th Cir. 2006) (en banc) (IJ failed to give petitioner advance notice of reliance on State Department country report containing disputable facts that were not in record); Yeghiazaryan v. Gonzales, 439 F.3d 994, 1000 (9th Cir. 2006) (BIA refused to consider new evidence submitted with motion to reconsider, and thereby compounded the harm of faulty translation at alien’s IJ hearing, which “resulted in the IJ’s fatal misunderstanding of a dispositive moment” in the alien’s testimony); Ibarra-Flores v. Gonzales, 439 F.3d 614, 621 (9th Cir. 2006) (IJ refused to order the government to produce voluntary departure form for petitioner and outcome of proceedings “may have been affected if the requested discovery had been ordered”); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1058-59 (9th Cir. 2005) (IJ violated due process in refusing to hear relevant expert testimony regarding domestic violence, where the testimony could have affected the IJ’s assessment of credibility); Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1164 (9th Cir. 2005) (as amended) (“[T]he failure of the IJ to hold an evidentiary hearing prejudiced petitioner by denying him the opportunity to show he would never have been taken out of his deportation proceeding.”); Zolotukhin, 417 F.3d at 1077 (concluding outcome of case may have been different absent cumulative due process violations); Kaur v. Ashcroft, 388 F.3d 734, 737-38 (9th Cir. 2004) (IJ’s failure to allow alien’s son to testify as a corroborating witness resulted in prejudice); Reyes-Melendez v. INS, 342 F.3d 1001, 1008-09 (9th Cir. 2003) (IJ’s bias prevented IJ from “considering, yet alone weighing, the impact” that the separation of the alien from his son would have on hardship); Agyeman v. INS, 296 03/2015 E-4 F.3d 871, 884-85 (9th Cir. 2002) (pro se alien was prejudiced by IJ’s failure to explain adequately how to prove existence of marriage, and IJ’s failure to sufficiently develop the record); Cano-Merida, 311 F.3d at 965 (where IJ pressured alien to drop asylum claim before developing facts, and made other decisions indicating he was not interested in hearing evidence or adequately explaining procedures, the “IJ’s conduct undercut the normal course of the proceedings,” and alien demonstrated prejudice); Colmenar, 210 F.3d at 972 (alien prejudiced by IJ preventing a full examination of the alien and prejudging the alien’s case).
Examples of cases where prejudice has not been established include: Pagayon v. Holder, 675 F.3d 1182, 1191-92 (9th Cir. 2011) (per curiam) (even if there was agency error, petitioner failed to show prejudice); Bingham v. Holder, 637 F.3d 1040, 1047 (9th Cir. 2011) (rejecting petitioner’s due process claim where petitioner failed to show that alleged unknowing waiver under the Visa Waiver Program resulted in prejudice); United States v. Ramos, 623 F.3d 672, 684 (9th Cir. 2010) (although court concluded that DHS violated Ramos’s right to due process, he suffered no prejudice where he was not eligible for the relief sought); Avila-Sanchez v. Mukasey, 509 F.3d 1037, 1041 (9th Cir. 2007) (even if there were some error resulting from different IJs presiding over portions of separate proceedings, alien failed to show prejudice); Ngongo v. Ashcroft, 397 F.3d 821, 823-24 (9th Cir. 2005) (no prejudice where witnesses were presented in a different order than originally planned); United States v. Jimenez-Borja, 378 F.3d 853, 859 (9th Cir. 2004) (although IJ’s failure to advise petitioner of available relief resulted in a due process violation, there was no prejudice because alien “could not plausibly demonstrate” eligibility for the relief); Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004) (even assuming a due process violation there was no prejudice because alien not eligible for relief as a matter of law). 1. Presumption of Prejudice Where counsel’s error deprives an alien of appellate proceedings, there is a presumption of prejudice. See Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006). If the alien is entitled to a presumption of prejudice because she was deprived of appellate review, that presumption may be rebutted by the government. Siong v. INS, 376 F.3d 1030, 1037 (9th Cir. 2004); see also Rojas-Garcia v. Ashcroft, 339 F.3d 814, 826-28 (9th Cir. 2003) (applying presumption of prejudice, but denying petition for review because presumption was rebutted).
The presumption is not rebutted if the alien can show plausible grounds for relief. Siong, 376 F.3d at 1037; Ray, 439 F.3d at 587. To determine if the alien has demonstrated plausible grounds for relief, the court looks to whether “the [IJ or the BIA] could plausibly 03/2015 E-5 have held that [the petitioner] was [eligible for relief] based on the record before it.” Ray, 439 F.3d at 589 (internal quotation marks omitted).
Examples of cases where prejudice was presumed include: Ray, 439 F.3d at 588-89 (multiple attorneys failed to litigate alien’s case in timely fashion); Siong, 376 F.3d at 1038 (counsel failed to file a timely notice of appeal); Rojas-Garcia, 339 F.3d at 826 (counsel failed to file brief with BIA, resulting in summary dismissal of alien’s appeal); Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000) (counsel failed to file a timely petition for review).