### In the



# United States Court of Appeals For the Seventh Circuit

No. 15-2198

M OH S E N K AR

R OUM E H , Petitioner,

v.

L ORE TTA E. L YN C H

, Att or ney General of the United Stat es, Responden t.

Peti tio n fo r Review o f an Order of the Bo ard o f Immi gratio n Appe als.

A0 76 -2 96 -3 63

A RGUE D J ANU

AR Y 20, 2016

— D E C I D E D A PRI L 29, 2016

Before W OOD, Chief

Judge, and M ANI ON an d RO VNE R , Circ uit Judges.

R OVN E R , Cir cui t Judge. Mohsen Kar ro umeh p e t it i ons for

rev i ew of a final or der of remov a l issued by the Board of Immi gr ation Appeals (“BIA” or “Board”). The Board d eter

mined that Kar ro umeh w as remov able becau se he enter ed into
a sham marriage for i mmi gr ation purposes. W e conclu de that2 No. 15-2198

Kar ro umeh i s entitled to a new hearin g before an i mmi gr ation judge (“IJ”) becau se he w as prej udi ced by hi s inabi li ty to crossexamine a ke y government wi tness whose evidenc e w as presented thro ugh a wri tte n stat ement. W e gr ant the p e t i tion and remand for a new hearing. I.
Kar ro umeh i s a nati v e and ci tizen o f Jordan who w as admi tte d to the Uni ted St ates a s a v isi tor on May 2, 1996. At that tim e, he w a s married to a Jordanian w oman wi th whom he had tw o chi ldren. In O ct o be r 1996, he obtained a prox y di v or ce from hi s wi fe, and in February 1997, he married T err i W right, a Uni ted St ates cit iz en who also had tw o chi ldren. A few months later

, W right fi led a For m I-130, Petiti on for Ali en Relativ e (“Petiti on”), on Kar ro umeh’s behalf, in conju nc t ion wi th a For m I-485, Appli cati on to Register Permanent Resi

de nce or Adjust St atus (“Appli cati on”). The Petiti on and Appli cati on w ere condi tionally gr anted in June 1998. See 8 U.S.C. § 1186 a

. In July 2000, Kar ro umeh and W right tim ely fi led a For m I-751, a jo int petiti on to r e mo ve the condi tions from K a r r oumeh’s lawfu l permanent resi dent status. See 8 U.S.C. § 118 6 a ( c ) (1)( A). Uni ted St ates Ci tizens hi p & Immi gr ation Ser vic es (“ U S CIS ”) gr anted the jo int petiti on in January 2001, and the condi tions w ere removed from Kar ro umeh’s lawfu l permanent resi dent status. See 8 U.S.C. § 1186a(c) (3)( B).
Sev eral months later

, in May 2001, Kar ro umeh fi led hi s fi rst appli cati on for naturalizati on. During a February 2002 naturali zation interv i e w wi th USCI S, when questi oned about the

a bsenc e of hi s U.S. ci tizen wi fe, Kar ro umeh rev ealed that he and W right w ere in the process of obtaining a div or ce. A weekNo. 15-2198 3

later , Kar ro umeh wi thdrew hi s appli cati on. In Mar ch 2002, hi s di v or ce w as finali zed. In April 2003 and Sept ember 2006, Kar ro umeh fi led tw o more appli cati ons f o r naturalizati on. In 2008, USCI S began to inv esti gate Kar ro umeh for i mmi gr ation fraud.
In the course of that inv esti gation, USCI S o ffi cer Lesli e Alfred obtained a sw or n stat ement from W right in Dec ember 2008, more than six y ears after her di v o r ce from Kar ro umeh. Although Alfred questi oned W right e xte nsiv ely about her li ving si tuation during and after the marriage, her ambi guous and someti mes contradic tor y responses rais ed as many questi ons as they answered. In the interv i ew , W right rev ealed that she had mov ed t o Columbi a, Mis si ssi ppi in Nov ember 1997, approx i mately nine months a ft e r she married Kar ro umeh, when he r m other w as jailed. But she also admi tte d t ha t she r egis ter ed her car in M i ssi ssi ppi in A ugust 1997, and later sa id t ha t she left for Mis si ssi ppi in May 1997, whi ch

w ould hav e been only three months after she married Kar ro umeh. She sai d that sh e stay ed in Mis si ssi ppi for a y ear , payin g the rent at the Columbi a address unti l her mother w as released from jail. She sai d both that she re t ur ned to the Chi cago area in Nov ember 1998, and also tha t sh e mov ed to Hinsdale, Illinoi s in 2000, after moving back from Mis si ssi ppi

. She sai d that she separated from Kar ro umeh and began li ving apart from hi m in late 2000, and also t ha t t he y “nev er li v ed tog ether .” R. at 51 6

. She later sai d that they “spent tim e tog ether as a fami ly

, but w e nev er li v ed tog ether as a husband and wi fe.” R. at 517.
At the tim e o f the December 2008 interv i ew , W right w as li ving on So uth Spr ingfi eld in C hicago, and had been li ving4 No. 15-2198

there nearly tw o y ears. Pri or to that, she r e sid e d on W est Cor tez in Chi cago for three y ears. When asked about reg i ster

ing her car d ur ing her marriage at addresses on Racine in Chi cago, and on Clarendon Hi l l s Road in Wi llowbrook, she replied that she o nly used the apartment in C larendon Hi lls. 1 When asked di rect l y if she and her chi ldren ev er li v ed wi th Kar ro umeh, she replied that, when she w as li ving in Hinsdale, “for 3 or 4 days out of the w eek he w ould come ov er

. W e w ere
nev er o n e a ch other ’s lease.” R. at 514. She also sai d that she “stay ed wi th hi m a few ni ghts at W or th,” a sub urb of Chi cago wh e r e Kar ro umeh leased an apartment. R. at 514. When told that recor ds showed she nev er li v ed a t Kar ro umeh’s W or th address, W

r ig ht crypticall y replied, “Y ou are corr ect lease wi se.” R. at 515. When Alfred asked why her si g nat ure appeared on tw o of Kar ro umeh’s W or th leases, she replied, “Thi s i s becau se he g a ve them to me. He already si gned the leases, I just s i gned i t. I knew he w as doin g s ome bull crap, so I j ust gotmy own place.” R. at 515.
Alfred also asked W r i ght i f she ev er thought that Kar r o um e h married her just to get hi s gr een card, and she replie d , “I felt he di dn’t w ant to li v e wi th me.” R. at 517. She recalled si gning a lease wi th K arr oumeh before she left for Mis si ssi ppi in M ay 1997, and said tha t he t o l d her they could

mov e into a tw o bedroo m apartment, but that he nev er follow ed thro ugh in get tin g the large r apartment, caus ing her to feel that he di d not wi sh to li v e wi th h er

. She fi led one joint tax return wi th hi m, in 1999, and received a $2000 refund. She

Cl arendon Hi l l s i s b oth the name ofa ro ad i n Wil l owbroo k, a sub urb of 1 Chic ago, and the name ofa separate sub urb, just nor th ofWi l l owbroo k.No. 15-2198 5
di d not know why her name and soci al secu rity numb er were
on Kar ro umeh’s taxe s for 1998 and 2000. Ov er the course of the marriage, Ka r r oumeh gav e W right a li ttle more than $4000, inclu ding $200 on their w edding day , $500 for clothing for her chi ldren, and the tax refund. As a re su l t of the inv esti gation, US C IS deni ed Kar ro umeh’s 20 0 6 a p p l i c a ti on for n a tu ra l iz a ti on

. In June 2012, Kar ro umeh fi led a “Petiti on for a Hearin g on Naturalizati on Appli cati on” in the di stric t c ourt in the Nort hern Di stric t of Illinoi s. In October 2012, the Depart ment of Homeland Security (“DH S”) commenc ed remov al proceedings, serving Kar ro umeh wi th a Notice to Appear allegin g that he had procured hi s lawfu l permanent resi dent status thro ugh fraud. See 8 U.S.C. § 1227(a)( 1)(A). In particu lar , DHS asserted that he had married a Uni ted States c i tizen solely to obtain an i mmi gr ation benefi t. Becaus e Kar ro umeh had fi led an acti on in the di stric t court, DHS sought expedited proceeding s in the parallel remo v al acti on. Kar ro umeh deni ed the charges at hi s fi rst appearance before t he I J on Februar y 13, 2013. The IJ

or dered DHS to fi le i ts evidenc e supp or tin g the charge by May 13, 2013, and set a merits hearing for August 6, 2013. In April 2013, for reasons not apparent from the recor d, the IJ rescheduled the meri ts hearin g to Sept ember 5, 2013. DHS sub mi tte d i ts evidenc e in supp or t of the charge and indicated that i t intended to prese nt fi v e wi tnesses at the hearin g: W right, her tw o chi ldren, Kar ro umeh’s proper t y manag er Lance Olson, and Lesli e Alfred, the USCI S inv e st ig a tor who had take n the

sw or n statement from W right. DH S a lso fi led a motion wi th the IJ requestin g i ssu ance of a sub poena requiring W right and her chi ldren to appear at the Sept ember 5, 2013 hearin g. The IJ6 No. 15-2198

gr anted the motion for a sub poena but there i s no evi dence in the re cord thatthe subpoena w as serv ed on W right.
The IJ mov ed the merits hearin g one last tim e, to January 10, 2014. But no new sub poena w as i ssu ed for W right requiring her appearance on the new date. And she di d not in fact appear o n tha t date. On the day of the hearin g, when the IJ asked government couns el whether W right w as av ai lable to testif y , couns el replied, “None of those that hav e been sub poenae d hav e appeared for today ’s hearin g, Y our Honor .” R. at 101. DHS then presented the testim ony of Lesli e Alfred. Alfred authenti cated sw or n statements from W right and from Lance Olson, and then testif i ed reg ardin g hi s inv esti gation into the legiti macy of the ma r r i age. In particu lar , Alfred ci ted as
sus pi ci ous the short amount of tim e between K arr oumeh’s di v or ce from hi s Jordanian wi fe and hi s marriage to W right, W right’s state me nt s that the couple nev er li v ed tog ether , the money that Kar ro umeh g a ve W right during the marriage, di screpanc i es reg ardin g the fi ling of jo int tax ret urns, W right’s hesi tation when asked i f she and Kar r o um eh had consu mmated the marriage, and di fferences between W right’s testimony reg ardin g the date of separation and the date noted o n the di v or ce decree, among ot he r t hings. Kar ro umeh testifi ed both as an adv erse wi tness in the DHS case- in-chi ef and on hi s own behalf

. Although Kar ro u m e h objected to the admi ssi on of W right’s

sw or n statement, the IJ conclu ded during the hearin g that the document w as admi ssi ble:
Now the Gov ernment i s contending that y our wi fe’s statement supp or ts their conc lusi on that y ourNo. 15-2198 7 marriage w as a sham

. Mr

. A d kin son [K arr oumeh’s lawy er] has arg ued that that’s not tr ue and that I should not ev en consi der y our wi fe’s state me nt. How ev er

, the Gov ernment has made an at tempt to hav e y our wi fe come to court. They sub poenaed her to come to court and sh e has not appeared. They could not locate her and she could not come to court. A thi rd-part y affi davit sub mi tte d by a n outof-court declarant i s admi ssi ble in evidenc e wher e the Gov ernment has made an atte mpt to have t hat wi tness pr esent. Y

ou also sai d tha t y ou di dn’t ev en know where y our wi fe w as and y ou w ere not able to hav e her come to court

. S o the Gov ernment does hav e the right to use y our wife’s statement again st y ou. R. at 201–02. The IJ again ruled that W right’s sw or n statement

w as admi ssi

ble in the final oral r uling: The respondent’s atto rney objecte d t o the Court ’s relianc e on the affi davit of T err i W right take n by the DHS [si c] Offi cer Lesli e Alfred. It i s tr ue that evidence is only admi ssi

ble if it is rele v ant and fundamentally fai r to both si des. Here, how ever , I find that the admi ssi on of T err i W right’s affid a vit in the

course of U S CIS ’ inv esti gation w as not fund amentally unfai r to the responde nt

. The Gov ernment atto rney made ev ery effort to locate and bring T err i W right to court to t e st i fy

. They had asked the respondent for her a d d r ess and asked for help in l o cat ing her

. They asked the Court for the i ssua nc e of a sub poena, whi ch w as g r a nt ed. Where the8 No. 15-2198

Gov ernment has made ev ery effort to present an adv erse wi tness, the a dmi ssi on of a thi rd party ’s statement isnot fundamentally unfai r

. R. at 81–82.
The IJ ulti mately conclu ded t ha t the government met i ts b u rd e n of d e m on s tr atin g that Kar ro umeh’s marriage to W right

w as not bona fi de. In both his or al and wri tte n rulings, the IJ emphas i zed the i mport ance of W right’s sw or n state me nt in reaching that conclu si on. In the final or al deci si on, the IJ relied

on W right’s st a t e ment to demonstrate (1) that there w as no period of tim e where W right and Kar ro umeh li v ed tog ether at the same address; (2) that W right w a s l iv ing in Mis si ssi ppi when she obt ained an Illinoi s driv er’s li cens e; (3) that W right

nev er liv ed at Kar ro umeh’s W or th apartment; (4) thatW right

nev er si gned a lease wi th Kar ro umeh but that Kar ro umeh had manuf actured evidenc e by havin g her si gn leases after the fact; (5) that the date of separation in the div or ce decree w as false; and (6) that Kar ro umeh gav e W right mo ne y on multi ple occasi ons, inclu ding in exchange for fi ling a jo int tax ret urn, as payments for enter ing into the marriage. In deter mining what

w ei ght should be accorded the Gov ernment’ s e videnc e and whether th e g o v ernment had met i ts burden of prov ing by clear and convin cing evidenc e that the marriage w as a sham, the IJ stated: First, the statement of T err i W right i s ext remely damaging to the respondent. While she di d not admi t that she w as pai d money solely to enter into the marriage, ev ery thing about t he statement suggests that t he respondent fabri cated evidenc e toNo. 15-2198 9

contend that hi s marriage w as a tr ue marriage and that he w a s r e si ding tog ether wi th hi s spouse. The statement from T

err i W right supp or ts the c on c lusi on that the marriage w as not enter ed into in goo d fai th.
R. at 82. The IJ also ci ted the testim ony of Alfred, whi ch, of
course, w a s ba sed in part on hi s interv i ew wi th W right. In

sum ming up the evidenc e, the IJ ci ted the quic k succ essi on of Kar ro umeh’s arr i v al in the Uni ted St ates , prox y di v or ce and

mar riage to W

right; the evidenc e that the couple nev e r l ived tog ether ; and Kar ro umeh’s manufa ct ure of evidenc e such as W right’s Illinoi s driver’s li cens e, the leases, and the 1999 tax ret urn. The IJ or dered that Kar r o um e h’s lawfu l permanent resi dent status be ter minated and that he be gr anted v oluntary departur e. On appeal, the BIA affi rmed the IJ’s deter minati on that Kar ro umeh w as remov able becau se he enter ed into a sham marriage for i mmi gr ation purposes. Addressing Kar ro umeh’s arg ument that the IJ fai led to proper ly enforce t he su bp oena i ssu ed to W

right, the BIA found that only the party seeking the sub poena could clai m the benefi ts of the enfor ce me nt prov i

sio n fo und at 8 C.F .R. § 1003.35(b) (6). The BIA also rej ected Kar ro umeh’s clai m that W right’s sw or n statement s hould not hav e been allowed as evidenc e becau se W right w as not present at the hearin g for cross-examinati on. Becaus e the government made reasonable efforts to proc ur e W right’s presence and becau se K arr oumeh had an oppor tuni ty to cross-examine Alfred, the agent who too k W right’s statement, the BIA conclu ded t ha t the statement w as proper ly admi tte d as evidenc e. The BIA found t hat the government adequately establi shed remov abi li ty, a nd or dered Kar ro umeh’s remov al10 No. 15-2198

to Jordan. Kar ro umeh petiti ons thi s court for rev i ew of that

or der

. II.
In his p e titi on for rev i ew , Kar ro umeh contends that hi s statuto ry and due process rights to cross-examine W right w ere vio l a ted when the IJ and BIA relied on W right’s sw or n statement ev en though the g o ver nment failed to make reasonable efforts to procure her presence at the hea r ing

. Kar ro umeh asserts that he w as prej udi ced by thi s err or becau se there w as li ttle basi s for finding that hi s marriage w as a sham wi thout W right’s sw or n statement. The government resp o nds that i t di d in fact make reasonable efforts to bring W right to the hearin g and t ha t t hose efforts are suffi ci ent under the statute to allow the sw or n statement to be used again st Kar ro umeh. The g ov e rnment also asserts t hat i t met i ts burden o f demonst r a t ing by clear and convin cing evidenc e that Kar ro umeh married W

right for the sole purpose of obtaining i mmi gr ation benefi ts. “When the Board agr ees wi th the deci si on of the i mmi gr ation judge, adopts that deci si on and supp lements that deci si on wi th i ts own reasonin g, as i t di d here, w e rev i ew the i mmi gr ation judge' s deci si on as supp lemente d by the Board.” Cece v

. Holder, 733 F .3d 662, 675 (7th Ci r

. 2013) ( en banc ). W e rev i ew the findings of fact for sub stanti al evidenc e and rev erse only i f the evidenc e compels a di fferent result. Cec e , 7 3 3 F .3d at 675–76. W

e rev i ew questi ons of l aw de novo , deferring to the Board' s reasonable interpr etat i o n set fort h in precedential op ini on s interpr eting the statute. Chevron, U.S.A., Inc. v

. Na t ura lNo. 15-2198 11

Resour ces Def. Counc il, Inc

. , 4 6 7 U.S. 837, 842–43 (1984); Cece, 733 F .3d at 668–69.
In seeking to remove Kar ro umeh from the U nit ed St ates, the government bore the bu r d e n of prov ing by clear and convin cing evidenc e that he w as deport able, a nd that hi s marriage t o W

r i ght w as a sham, enter ed into for the purpose of obtaining i mmi gr ation benefi ts. See 8 U.S.C. § 1229a(c) (3 ) ( A)

. Ali ens in remov al proceedings are entitl e d to due process of law un der the Fifth Amendment. Pouhova v

. Holder, 726 F .3d 1007, 1011 (7th Ci r

. 2013). The i mmi gr ation statutes also i mpose procedural requirements on remov al proceedings, and any proceeding that meets those requirements a l so sati sfi es consti tutional due process. See Pouhova, 726 F .3d at 1011. One of the statuto ry procedural guarante es i s the right to a reasonable oppor tuni ty to cross-examine wi tnesses presented by the government. 8 U.S.C. § 1229a(b) (4)( B); Pouhova, 726 F .3d at 1011; Mala ve v

. Holder, 610 F .3d 483, 487 (7th Ci r

. 2010). The right to cross-examine a d v erse wi tnesses ext ends to those whose statements are presented in wri tte n declarations as w ell

as those presented thro ugh li v e testim ony

. Mala ve, 610 F .3d at 487. “A declarant i s a ‘wi tness’ when testim ony comes in on paper , no less than when i t i s offered in person.” Mala ve, 610 F .3d at 487. In challenging the BIA’s d eci si on, Karro umeh

mus t demonstrate not only that thi s right w as deni ed but also that he w as prej udi ced by the deni al. Pouhova, 726 F .3d at 1011. W e rev i ew de novo the legal questi on of whether the admi ssi on of a d o cu me nt violated a petiti oner’ s procedural rights in a
remov al proceeding and, i f so, whether the admissi on w as prej udi ci al. Pouhova, 726 F .3d at 1011–12.12 No. 15-2198

The IJ f ound t hat the admi ssi on of W right’s stat ement di d not violate Kar ro umeh’s procedural right s b e c au s e the government used reasonable efforts to procure W right’s atte ndence at the hearin g. W

e hav e expr essed doubt whether the use of “reasonable efforts” to p r o cu re the presence of the wi tness i s adequate to ensure the fai rness of admi tting documents whose declarants cannot be cross-examined. Pouhova, 726 F .3 d a t 1 0 1 5; Mala ve, 610 F .3d at 487–88. But as in Pouhova and Mala ve, w e need not resolv e that questi on here becau se the recor d demonstrat es that t he g o v ernment fai led to make reasonable efforts to lo cate W

right and compel her pr esence at the hearin g. The v ery li mi ted recor d on thi s i ssu e demonstrate s that the government asked the court to i ssue a sub poena compelling W right’s appearance at the Sept ember 5, 2013 hearin g. There i s no evidenc e in t he recor d that the sub poena w as served on W right. But more i mport antly , when the IJ mov ed the date of the he a r ing to January 10, 2014, the government di d not request a new sub poena for that date and the cour t di d not i ssu e an updated sub poena. Other than seeking a sub poena for the wrong hearin g date, the r e is no evidenc e in the recor d reg ardin g the government’s efforts to secu re W right’ s p re s e nce at the hearin g. Nor di d the IJ follow thro ugh on the reg ulator y requirement t o seek the assi stance of t he Uni ted St ates Att or

ney and the di stric t court in enforcing the sub po e na. Section 8 C

. F .R. § 1003.35(b) (6) states that, i f a sub poenaed wi tness “neglects or refuses to appear and testif y as di rec t ed

... the Immi gr ation Judge i ssu ing the sub poena shall request the Uni ted St ates Att or ney

... to repo rt su ch neglect or refusal t o the Uni ted St ates Di stric t Court and to request su ch court to i ssu e an or der requiring the wi tness to appear and testif y[.]”No. 15-2198 13

The BIA’s conclu si on that only the party seeking the sub poena could clai m the benefi ts of the enforcement prov i si on found at 8 C.F .R. § 1003.35(b) (6) may be corr ect but i t i s i rr elev ant here:

as the party seeking to use W right’s sw or n statement, the g ov ernment w as required to use reasonable efforts to secu re W right’s presence a t t he hearin g, and y et the government fai led to employ thi s readily av ai l a ble too l. The government has r esources t o locate persons who do not wi sh t o be fo und. Mala ve, 610 F .3d at 488. Indeed, the government found W right prev i ously

, when i t w anted to interv i e w he r reg ardin g her marriage to Kar ro umeh. “A predic tion t ha t a person can’t be found, or that cross-examinati on w on’t be frui tful, i s a poor
reason to deny a li tigant the statuto ry entitlement to crossexamine adv erse wi tnesses.” Mala ve, 610 F .3d at 488. Although the government repeat edly inv oke s the phrase “r e a so nable efforts” in i ts bri ef, i t has nev er set fort h what th o se e fforts entail ed. Left wit h a recor d that shows nothin g more than a single, uns erv ed sub poena for the wr ong date, w e cannot conclu de that the government used reasonab l e e ffor ts to secu re W right’s pres ence at the hearin g. Kar ro umeh has demonstrat ed that hi s procedural right to cross-examinati o n w as violated.
W e turn to the questi on of prej udic e. W right’s statement

w as the prim ary pi ece of evidenc e ci ted by the IJ in supp or tin g t he deci si on. The IJ described the statement as “ext remely damaging” to Kar ro um e h. In addi tion t o W right’s stat ement, the evidenc e consi sted of W right’s car reg i strat i ons and driv er’s li cens e renew al; a few photo gr aphs of the c ouple; the landlord’s lett e r and sw or n statement; leases; the di v or ce decree; and the tim e line of Kar ro umeh’s entry into the Uni ted14 No. 15-2198

St ates follow ed by hi s relat ivel y qui ck prox y di v or ce and marriage to a Uni ted St at e s citi zen. Wi thout W right’s statement, t he g o v ernment could not demonstrate by “clear and convin cing” evidenc e that the marriage w as a sh am. Much of the evidenc e w as consi stent wi th Kar ro umeh’s testim ony that he and W

right mo stly li v ed apart becau se hi s apartment w as not large enough to accomm odate her ch ild ren, and becau se she tempor arily mov ed to Mis si ssi ppi for a period d ue t o a fami ly cri si s. The photo gr aphs showed no t hing more than W right and her chi ldren with Kar ro umeh at an amus ement park, and the w edding. The tax ret urns w ere jo intly fi led, and the leases were in the names “Mohsen and T err i Kar ro umeh.” Wi thout W

right ’s statement denying that she fi led jo int tax ret urns for tw o of the three relev ant y ears, and that she si gned the leases after the fact, the government presented li ttle evidenc e that t he marriage w as a sh am. Eviden ce in remov al proceedings need not stric tly conform to the Feder al Rules of Eviden ce, but the admi ssi on of evidenc e
mus t be probat i v e and fund amentally fai r

. Pouhova, 726 F .3d at 1011. Fairness, in turn, depends in part on the reliab i li ty of the evidenc e. Id

. Hearsay i s gener ally admi ssi ble in admini strat i v e proceedings, and may supp ly sub stanti al evidenc e in supp or t of an admini strat i v e deci si on, so long as th e re has been an oppor tuni ty for cross-examinati on. Mala ve, 610 F .3d at 487. As

w e noted abov e, Kar ro umeh had no oppor tuni ty to crossexamine W

right reg ardin g her o ut-of-court statement.
W right’s statement i s marked by cont r adi cti ons and inconsi st e nc ie s that call i ts reliab i li ty into questi on. For example , W

r ig ht gav e three di fferent dates for her mov e to Mis si ssi ppi and tw o diff erent dates for her ret urn to Illinoi s.No. 15-2198 15

She both deni ed si gning leases wi th Kar ro umeh and also admi tte d si gning them. So me of her statem e nt s beg for an explanation, such as her clai m that she di d not liv e wi th Kar ro umeh at hi s W

or th address “lease wi se.” W right gav e the statement more than si x y ears after her di v or ce from Kar ro umeh. In a response that could be interpr eted as di splaying bi as , sh e sai d that she div or ced Karr oumeh bec ause after “constant li e after li e, he nev er followed thro ugh wi th hi s plans li ke get ting a ho use[.]” Kar ro umeh has been depriv ed of an oppor tuni ty to ask clari fying questi ons or pursue areas left unexplored by Lesli e. In hi s appeal to t he Board, Kar ro umeh noted that Lesli e nev er di rectly aske d W right i f she w as engaged in a fraudulent marriage, nev er asked for the m eaning of the ter m “lease wi se,” nev er inqui red why Kar ro umeh gav e W right money during the marriage, and nev er asked whether W right w as prosecuted for marriage fraud. In l ight of the contradic tions and inconsi stenci es as well as W right’s motiv e to testify a g a inst her ex-husb and, her hearsay statement w as unreli able and Kar r o umeh should hav e been allow ed an oppor tuni ty to test i t wi th cros s-examinati on. The admi ssi on of her statement under these ci rc ums tances w as not fund amentally fai r

. And wi thout thi s evidenc e, the government could not
me e t its burden of demonstrating by clear and convin cing evidenc e that the marriage w as a sh am. Kar ro umeh has thus establi shed prejudi ce. As w e noted in Pouhova, i t i s unc lear whether t he government’s reasonable efforts to locate a wi tness could render unreli able hearsay any more reliab le o r i ts use any more fai r than i f t he government made no eff o rt to secu re the presence of the wi tness. 726 F .3d at 1015. Becaus e the government di d16 No. 15-2198

not make reasonable efforts to bring W right to the hearin g, w e

r e se r ve t hat questi on for a case where i t w ould affec t the outco me. In thi s case, i t i s clear that Kar ro umeh’s procedural right to cross-examine the main wi tness again st hi m w as violated, and that thi s err or w as prej udi ci al. W e there fore gr ant hi s petiti on and remand for a he a rin g th a t prov i des Kar ro umeh wi th all the pro cedural ri ghts due to him

. PETITION GRANTED

.