Pouhova v. Holder

• Citation: 726 F.3d 1007
• Decision Date: 13 August 2013
• Docket Number: No. 12–1665.,12–1665.
• Parties: Maria Emilova POUHOVA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

726 F.3d 1007

Maria Emilova POUHOVA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–1665.

United States Court of Appeals,Seventh Circuit.

Argued Dec. 4, 2012.

Decided Aug. 13, 2013.

Justin R. Burton, Kriezelman Burton & Associates, Chicago, IL, for Petitioner.

Kerry A. Monaco (submitted), OIL, Department of Justice, Washington, DC, for Respondent.

Before BAUER and HAMILTON, Circuit Judges, and THARP, District Judge. ^*

HAMILTON, Circuit Judge.

Petitioner Maria Pouhova, a citizen of Bulgaria, has been ordered removed from the United States. She argues she was deprived of her procedural rights when an immigration judge admitted and based his decision on two hearsay documents: a statement taken from a woman who attempted to enter the United States using Pouhova's Bulgarian passport, and a Department of Homeland Security inspector's report of his conversation with the woman prepared seven years after it occurred. Pouhova petitions for review of the Board of Immigration Appeals' decision affirming the immigration judge's removal order. Although the Federal Rules of Evidence do not apply in removal hearings, there are several substantial reasons why both documents are not reliable and should not have been used without Pouhova's having an opportunity to cross-examine the declarant or author. We therefore agree with Pouhova that use of both documents violated her procedural rights. The order of removal must be vacated and her case remanded for a new hearing.

I. Factual and Procedural Background

Maria Pouhova is a Bulgarian citizen who entered the United States on a student visa in 1999. She overstayed her visa but married a U.S. citizen and applied for an adjustment of status. Pouhova received a Notice to Appear for removal proceedings in October 2007. It alleged three grounds for removal, but the only one of consequence at this point is a smuggling charge for assisting an alien trying to enter the United States illegally. See 8 U.S.C. § 1227(a)(1)(E)(i).¹

At her removal hearing, the government presented two documents as its only evidence to support the smuggling charge. The first is a written statement from the woman who attempted to use Pouhova's Bulgarian passport to enter the United States back in 2000. The woman, who gave the name Boriana Dimova, arrived at O'Hare Airport on June 21, 2000 and gave a statement to an immigration official, Inspector Bryan Weiler. The statement consists of 30 questions by Weiler and Dimova's responses. The document states that it was taken in English but without an interpreter due to lack of funding. Dimova's responses indicated that she presented a passport with Pouhova's information on it and that the information and passport did not belong to her. For our purposes, the key questions and answers were:

Q21: Did anyone assist you in obtaining your passport?

A21: Nataliy. She lives in the U.S.

Q22: What is the name of the person who sold you this passport?

A22: Nataliy sent me it.

Q23: How much did you pay for this passport? A23: I didn't pay anything yet.

Q24: Do you still owe money to the people who arranged for you to travel to the United States today?

A24: I will pay Maria Puohova (sic) $1500 later, after I begin working in U.S.

...

Q28: Who are your intended contacts in the United States?

A28: Nataliy and Maria Puohova (sic).

The second document is a Department of Homeland Security record, Form I–213, which is a “record of deportable alien.” Like the Dimova statement, it was also prepared by Inspector Weiler, but more than seven years later, on October 25, 2007. It includes Weiler's account of the grounds for Pouhova's removability and reports on his 2000 interview with Dimova:

On June 21, 2000, Boriana DIMOVA, the subject's relative, was issued an Order of Expedited Removal upon arrival at Chicago, IL attempting to enter the U.S. with POUHOVA's Bulgarian passport and nonimmigrant student visa. DIMOVA stated under oath that POUHOVA mailed her the passport. POUHOVA arranged for DIMOVA's travel as an impostor to her passport and was to be paid $1500 U.S. dollars by DIMOVA.... POUHOVA lost her Bulgarian passport in January 2002, but this contradicts the fact that DIMOVA had it in her possession when apprehended on June 21, 2000. Based on birth certificate data, POUHOVA and DIMOVA appear to be cousins.

Pouhova challenged the admission of the Dimova statement and the Form I–213 as unreliable because Dimova was apparently not fluent in English and no interpreter was available, and as too prejudicial to be admitted without the opportunity to cross-examine Dimova. The government offered to present Weiler as a witness to testify about the circumstances surrounding the interview.

At the first hearing, the judge declined to admit or take any action on the documents or the objection and continued the hearing to give the government time to arrange for Weiler to appear and to make reasonable efforts to locate Dimova, who had been removed to Bulgaria. At the second hearing, the government did not produce either Dimova or Inspector Weiler. Nevertheless, the immigration judge admitted and considered both the I–213 form and the recorded Dimova statement. IJ Decision at 7, 9; App. 17, 19.²

Pouhova testified on her own behalf. She denied giving her passport to anyone. Instead, she testified that she lost it but did not discover it was missing until late 2001 or early 2002, after she had married a U.S. citizen and looked for her passport to apply for adjustment of status. She explained that she had been advised to store her passport and other important documents in a special folder in her home. She had not looked in the folder since 1999 because she had other forms of identification and did not use her passport. She also denied knowing of any Boriana Dimova and had no relative with that name. She also testified that she had not heard of the use of her Bulgarian passport until 2004 when U.S. authorities denied her application for adjustment of status. On these points the government's cross-examination of Pouhova was perfunctory and did not undermine her credibility.

The immigration judge ultimately decided to credit both of the government's documents and found that Pouhova's contrary testimony was not credible. The judge found that the government showed by clear and convincing evidence that Pouhova assisted in smuggling an alien into the United States. This finding rendered Pouhova inadmissible and removable. See 8 U.S.C. § 1182(a)(6)(E)(i); § 1227(a)(1)(E)(i).³ It also rendered Pouhova ineligible for discretionary relief from removal in the form of adjustment of status, which would otherwise have been available to her because of her marriage to a U.S. citizen.⁴ In the alternative, the immigration judge found that even if she were not inadmissible for smuggling, she would not merit a favorable exercise of discretion and he would deny her adjustment of status.

Pouhova appealed to the Board of Immigration Appeals. In the course of two opinions, the Board affirmed the decision of the immigration judge ⁵ The Board's modified decision held: (a) that the immigration judge's adverse credibility determination about Pouhova's testimony was not clearly erroneous, (b) that the admission of the I–213 and the Dimova statement did not violate Pouhova's procedural rights, (c) that the government met its burden of showing that Pouhova was inadmissible and removable for smuggling, and (d) that Pouhova did not merit a favorable exercise of discretion. Pouhova petitioned for review in this court, arguing that the admission of the two documents violated her procedural rights in removal proceedings.

II. Analysis

Aliens in removal proceedings are entitled to due process of law under the Fifth Amendment. Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Statutory provisions also impose procedural requirements on removal proceedings. See 8 U.S.C. § 1229a(b)(4). Any proceeding that meets the requirements of the statute also satisfies constitutional due process. Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir.2006). Because Pouhova does not challenge the constitutional adequacy of the statutory rights, we focus our analysis on those statutory rights. See Malave v. Holder, 610 F.3d 483, 487 (7th Cir.2010) (focus should be on statutes and relevant regulations).

Under section 1229a(b)(4)(B), an alien in removal proceedings “shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government.” An alien who challenges a removal order by claiming a violation of these rights must show both that the proceeding did not meet these requirements and that she was prejudiced. Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir.2007).

Evidence in removal proceedings need not conform strictly to the Federal Rules of Evidence, but it must be probative and its admission must be “fundamentally fair.” Barradas v. Holder, 582 F.3d 754, 762 (7th Cir.2009). The fairness of a piece of evidence depends in part on its reliability. Duad v. United States, 556 F.3d 592, 596 (7th Cir.2009) (despite flexibility of evidentiary rules in removal proceedings, “evidence must, in the final analysis, be reliable”); see also Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir.2008) (fairness in the context of evidence is “closely related to the reliability and trustworthiness of the evidence”) (internal quotations omitted); Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir.2008) (same).

Because the Board ultimately agreed with the immigration judge's decision and supplemented that opinion with its own observations, we review both the immigration judge's and the Board's decisions. See Sirbu v. Holder, 718 F.3d 655, 658 (7th Cir.2013). We have jurisdiction to review final orders of removal under 8 U.S.C. § 1252(a). To the extent Pouhova challenges the denial of discretionary...