### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 13

‐ 2478 & 13

‐ 3263

K IRIL H RISTOV V IDINSKI

,

Petitioner

,

v.

L ORETTA E. L YNCH

, Attorney General of the United States,

Respondent

.

____________________ Petitions for Review of Decisions of

the Board of Immigration Appeals.

No. A096

‐ 533

‐ 945

____________________

A RGUED O CTOBER 30, 2014

— D ECIDED N OVEMBER 1, 2016

____________________

Before W ILLIAMS and H AMILTON

, Circuit Judges

. 1

1 Judge Tinder was on the panel that heard oral argument. We held

these petitions for review after argument so that the parties could pursue

possible resolution, including through an exercise of prosecutorial discre

‐

tion by the government. Over the summer of 2016, it became clear that an

agreed resolution was unlikely. In the meantime, Judge Tinder has retired

and did not participate in the decision. These petitions are being decided

by a quorum pursuant to 28 U.S.C. § 46(d).2 Nos. 13

‐ 2478 & 13

‐ 3263

H AMILTON

, Circuit Judge

. Petitioner Kiril Vidinski is a na

‐

tive of Bulgaria. He entered the United States as a visitor in

1998 but overstayed his visa. He married a United States citi

‐

zen, Constance Literski, in 2002, and in 2005 he and Ms. Li

‐

terski filed petitions seeking legal permanent resident status

for him. Before those petitions were resolved, Ms. Literski

told an investigator for Immigration and Customs Enforce

‐

ment (ICE) that the marriage had been a sham to obtain im

‐ migration benefits for Vidinski (and money for her). Removal

proceedings resulted in a final order to remove Vidinski, and

the Board of Immigration Appeals dismissed his appeal and

later denied his motion to reopen proceedings based on inef

‐

fective assistance of counsel. He now seeks judicial review,

arguing primarily that he was entitled to cross

‐ examine Ms.

Literski, whose affidavit was critical to the marriage fraud is

‐

sue. We dismiss in part and deny the remainder of the peti

‐

tions on their merits.

There is no doubt that Vidinski is removable for having

overstayed his 1998 visa. Also, the Board denied his request

for cancellation of removal based on “exceptional and ex

‐ tremely unusual hardship” to family members. See 8 U.S.C.

§ 1229b(b)(1)(D). That is a discretionary decision that we have

no jurisdiction to review unless it involves constitutional

claims or questions of law, Stepanovic v. Filip

, 554 F.3d 673, 678

(7th Cir. 2009), and Vidinski presents no such claims or ques

‐

tions. To the extent Vidinski seeks review of the Board’s de

‐

nial of his hardship request, we dismiss for lack of jurisdic

‐

tion.

We do have jurisdiction to consider the finding by the im

‐ migration judge, affirmed by the Board, that Vidinski had en

‐ gaged in marriage fraud, which results in a lifetime ban onNos. 13

‐ 2478 & 13

‐ 3263 3

being able to return to the United States. See 8 U.S.C.

§ 1154(c). Vidinski has raised legal issues within the scope of

the jurisdiction authorized by 8 U.S.C. § 1252(a)(2)(D). In con

‐ sidering these issues, we review both the written decision of

the immigration judge and the Board order adopting and af

‐ firming that decision. Surganova v. Holder

, 612 F.3d 901, 904

(7th Cir. 2010). We review the Board’s legal conclusions de

novo

, but we defer to its factual findings, “reversing the Board

only if the record lacks substantial evidence to support its fac

‐

tual conclusions.” Sayaxing v. INS

, 179 F.3d 515, 519 (7th Cir.

1999).

I. Removal Proceedings

Under 8 U.S.C. § 1227(a)(1)(A) and 8 U.S.C.

§ 1182(a)(6)(C)(i), an alien who attempts to procure an immi

‐ gration benefit by fraud or material misrepresentation—in

‐ cluding marriage fraud—is subject to removal. The govern

‐

ment must prove marriage fraud with clear and convincing

evidence. Surganova

, 612 F.3d at 904; see generally Woodby v.

INS

, 385 U.S. 276, 285–86 (1966).

In Vidinski’s case, the government relied on the testimony

of an ICE agent who interviewed Ms. Literski as part of an

investigation into an extensive marriage fraud ring in Chi

‐

cago. 2 The central figure in the ring was Jeremy Starnes. A

man named Dion Liebich told the ICE agent that Starnes had

helped him arrange his own fraudulent marriage and that he

(Liebich) had referred Ms. Literski to Starnes. Following that

2 The investigation led to an indictment resulting in sixteen convic

‐

tions and two fugitive defendants.4 Nos. 13

‐ 2478 & 13

‐ 3263

lead, the agent contacted Ms. Literski and interviewed her in

January 2011.

According to the agent, Ms. Literski admitted that her

marriage to Vidinski had been fraudulent. She said that

Liebich (her former boyfriend) told her she could make

money by entering into a sham marriage. Liebich arranged a

meeting among Starnes, Ms. Literski, Vidinski, and another

man. After that meeting, Ms. Literski and Vidinski married.

Ms. Literski was paid $1,000 the day of the marriage, with

promises of more payments to come. She told the agent that

Vidinski paid her a total of more than $5,000 over the course

of the marriage, but she never lived with him and never had

sexual relations with him. No criminal charges have been

filed against Ms. Literski, Vidinski, or Liebich.

Ms. Literski also told the agent that several photographs

that she and Vidinski had submitted to support their 2005 pe

‐

titions for lawful permanent resident status had been altered

to appear to be pictures of the two of them together. Ms. Li

‐

terski signed a sworn statement describing the fraudulent ar

‐

rangement. Her statement is consistent with the agent’s re

‐

port.

The agent also testified that he served notices to appear on

Vidinski and a Ms. Tzvetana Stanislavova, who had a child

by Vidinski in 2005 while he was still legally married to Ms.

Literski (and before Ms. Literski filed her I

‐ 130 petition on his

behalf). Vidinski and Ms. Stanislavova are now married.

Additional documentary evidence supported the immi

‐ gration judge’s finding of marriage fraud. Vidinski submitted

his federal and Illinois individual income tax returns forNos. 13

‐ 2478 & 13

‐ 3263 5

twelve years, from 1998 to 2009. All indicated that he was sin

‐ gle, even though he was married to Ms. Literski from 2002 to

2009. (The government submitted a different return for 2005

that listed Vidinski and Ms. Literski as married, filing jointly,

around the time of their interviews on her I

‐ 130 petition. That

discrepancy has not been explained.) None of the documents

submitted in support of adjustment of status disclosed that

Vidinski had a son born in 2005 to Ms. Stanislavova.

The most unusual feature of this case, apparently unprec

‐

edented in the experience of the veteran immigration judge,

was that in response to the government’s evidence about the

fraudulent nature of the marriage, Vidinski just refused to tes

‐ tify at all. The judge provided ample warnings to Vidinski

and his counsel that he might draw adverse inferences from

that refusal. In his decision, the judge reasonably refused to

consider Vidinski’s affidavit claiming the marriage had been

bona fide. Vidinski also offered some records of a joint bank

account from 2004–06, around the time of the immigration pe

‐

titions and interview, but he was not willing to testify to ex

‐ plain those documents or any other facts relevant to the issue

of marriage fraud.

The immigration judge concluded that the government

had shown by clear and convincing evidence that Vidinski’s

marriage to Ms. Literski had been fraudulent. The judge

wrote that the agent’s testimony was detailed and consistent

and supported by his contemporaneous memorandum about

his interview with Ms. Literski. And he noted that Vidinski

had refused to testify and offered no rebuttal evidence. The

judge therefore denied Vidinski’s request for cancellation of

removal and ordered his removal to Bulgaria.6 Nos. 13

‐ 2478 & 13

‐ 3263

Vidinski sought review before the Board of Immigration

Appeals, which adopted the immigration judge’s decision

and dismissed Vidinski’s appeal in a June 20, 2013 order. The

Board denied his subsequent motion to reopen proceedings,

and Vidinski petitioned for judicial review of both decisions.

II. Analysis

On judicial review, Vidinski focuses on the fact that Ms.

Literski did not testify in person before the immigration

judge. He argues first that the government failed to meet its

burden to prove marriage fraud by clear and convincing evi

‐

dence. See Surganova

, 612 F.3d at 904. He argues second that

he was denied both statutory and constitutional rights to

cross

‐ examine adverse witnesses. See 8 U.S.C.

§ 1229a(b)(4)(B) (alien in removal proceedings shall have rea

‐

sonable opportunity to examine unfavorable evidence, pre

‐

sent favorable evidence, and cross

‐ examine adverse wit

‐

nesses). “Evidence in removal proceedings need not conform

strictly to the Federal Rules of Evidence, but it must be proba

‐

tive and its admission must be ‘fundamentally fair.’” Pouhova

v. Holder

, 726 F.3d 1007, 1011 (7th Cir. 2013), quoting Barradas

v. Holder

, 582 F.3d 754, 762 (7th Cir. 2009). We reject these ar

‐

guments.

First, the Board and immigration judge did not err in con

‐ cluding that the government had proven by clear and con

‐ vincing evidence that Vidinski’s marriage to Ms. Literski was

fraudulent. Ms. Literski’s account of the fraud was presented

as hearsay through her sworn statement and the agent’s testi

‐

mony concerning his interview with her. That hearsay had

sufficient indicia of reliability for use in these administrative

proceedings. Ms. Literski’s admissions of fraud were admis

‐

sions against her own penal interest, making it unlikely thatNos. 13

‐ 2478 & 13

‐ 3263 7

she was lying. Also, her account was consistent with the avail

‐

able documentary evidence, and the agent’s testimony was—

the judge found—detailed, internally consistent, and con

‐

sistent with the documentary evidence. The use of this hear

‐

say in this administrative hearing was permissible. See, e.g.,

Ogbolumani v. Napolitano

, 557 F.3d 729, 734 (7th Cir. 2009) (al

‐ lowing use of hearsay summaries of witness interviews to

prove marriage fraud where nothing suggested summaries

were inaccurate or unreliable beyond inherent risks of sum

‐ maries); Duad v. Holder

, 556 F.3d 592, 596 (7th Cir. 2009) (al

‐ lowing use of reliable hearsay in immigration proceedings).

Perhaps most notable here is Vidinski’s choice not to tes

‐ tify and not to offer any rebuttal evidence. The key evidence

the immigration judge heard was hearsay, but it was detailed

and consistent, with indications of reliability, and it was cor

‐

roborated by available documentary evidence. To weigh

against that evidence there was essentially nothing. The im

‐ migration judge did not err by finding that the government

had proven marriage fraud by clear and convincing evi

‐

dence. 3

3 The chronology did not obviously fit a story of marriage fraud.

Vidinski and Ms. Literski were married in 2002 with assurances, according

to the agent’s investigation, that the marriage needed to last only six

months. They did not file the I

‐ 130 and I

‐ 485 petitions until 2005, after

Vidinski’s son by Ms. Stanislavova had been born. They did not divorce

until 2009. We might speculate about various explanations for the timing,

but without any testimony or other evidence from Vidinski to rebut Ms.

Literski’s account of a fraudulent marriage, the immigration judge was not

required to find that the government had failed to meet its burden of

proof.8 Nos. 13

‐ 2478 & 13

‐ 3263

Second, Vidinski was not denied his statutory and consti

‐

tutional right to cross

‐ examine the witnesses against him. Al

‐ though Vidinski contends that the government did not make

reasonable efforts to have Ms. Literski or Liebich appear to

testify, Vidinski’s lawyer requested subpoenas for those wit

‐

nesses, and the immigration judge issued those subpoenas.

Despite the subpoenas, the witnesses did not appear, and

there was apparently no further effort by anyone to require

their attendance. Vidinski’s lawyer told the immigration

judge that she had talked to Ms. Literski, who reportedly said

she was “told by the Government that she did not need to ap

‐ pear.” There is no actual evidence backing up that vague as

‐

sertion; even assuming the assertion is true, it does not estab

‐

lish that the government took any affirmative steps to prevent

Ms. Literski from testifying at Vidinski’s hearing.

An immigration judge has the authority to issue subpoe

‐

nas for witnesses and to impose sanctions for failure to com

‐ ply with those subpoenas. 8 U.S.C. § 1229a(b)(1). A regulation

provides:

If a witness neglects or refuses to appear and

testify as directed by the subpoena served upon

him or her in accordance with the provisions of

this section, the Immigration Judge issuing the

subpoena shall request the United States Attor

‐

ney for the district in which the subpoena was

issued to report such neglect or refusal to the

United States District Court and to request such

court to issue an order requiring the witness to

appear and testify and to produce the books, pa

‐

pers or documents designated in the subpoena.

8 C.F.R. § 1003.35(b)(6).Nos. 13

‐ 2478 & 13

‐ 3263 9

During the hearing, when it became apparent that Ms. Li

‐

terski had not appeared in response to the subpoena, neither

attorney asked the immigration judge to follow through and

request enforcement through the district court. Nor did

Vidinski seek a continuance of the hearing so that further ef

‐

forts could be made to compel Ms. Literski’s testimony. He

chose to argue instead that the government had simply failed

to meet its burden of proof and that Ms. Literski’s affidavit

and the report of her interview should be rejected as unrelia

‐

ble hearsay. The record thus reflects a strategic decision to

forgo further efforts to obtain her actual appearance and to

rely on the legal argument we have rejected above.

We recognize that § 1003.35(b)(6) says the judge “shall” re

‐

quest enforcement of the subpoena, but we do not read the

regulation as requiring the judge to do so in the absence of a

request from a party. The regulation would otherwise impose

additional unnecessary and useless delays and burdens on an

already overburdened network of immigration courts. Cf.

Malave v. Holder

, 610 F.3d 483, 487–88 (7th Cir. 2010) (remand

‐ ing where immigration judge refused alien’s request for issu

‐

ance of subpoena to enable cross

‐ examination of ex

‐ husband

whose hearsay interview was used to prove marriage fraud).

Vidinski insists, however, that a remand is required under

Karroumeh v. Lynch

, 820 F.3d 890 (7th Cir. 2016), and Pouhova

v. Holder

, 726 F.3d 1007 (7th Cir. 2013). In both cases we

granted petitions where immigration judges ruled against al

‐

iens on the basis of hearsay evidence. Both cases differ from

this one in important ways.

Karroumeh also involved marriage fraud and an ex

‐ spouse

who provided a sworn statement but did not appear to testify.

In Karroumeh

, however, the government had not properly10 Nos. 13

‐ 2478 & 13

‐ 3263

subpoenaed the missing ex

‐ wife; a subpoena was prepared,

but it was for the wrong date and not even served. 820 F.3d at

897. Even more important, the hearsay statement was

“marked by contradictions and inconsistencies that call its re

‐ liability into question.” Id

. at 898. There is no comparable rea

‐

son to doubt the reliability of Ms. Literski’s account in this

case, particularly where Vidinski himself chose not to testify

to rebut it.

The issue in Pouhova was not marriage fraud but smug

‐ gling of other aliens, yet the government built its case on hear

‐

say. The use of hearsay was unfair in Pouhova because there

were specific reasons to deem it unreliable. The interview

with the key witness was conducted in English because fund

‐ ing shortages meant no interpreter was available, and there

was no indication of how well the witness understood or ex

‐ pressed herself in English. 726 F.3d at 1009, 1012. Moreover,

the government did not even call the agent who had inter

‐

viewed the witness, so the agent was not available for cross

‐

examination on topics that might have affected the reliability

of the interview. Id. at 1015. His written report on the witness

was not prepared until seven years after the interview and

contradicted it in important details. Id

. at 1013–14. Further,

Ms. Pouhova had testified in her case, id. at 1010, unlike

Vidinski, who declined the opportunity to testify about any

bona fide basis for his marriage to Ms. Literski.

When immigration authorities build their removal cases

on hearsay, they venture onto thin ice, as Karroumeh

, Pouhova

, Malave

, and numerous other cases attest. But challenges to

such use of hearsay call for close attention to the details of the

hearsay and the rest of the evidence in the case. In this case,Nos. 13

‐ 2478 & 13

‐ 3263 11

the hearsay accounts from Ms. Literski did not contain incon

‐

sistencies or improbable details that would call their reliabil

‐ ity into doubt, and Vidinski declined the opportunity to rebut

those accounts. Under these circumstances, we find no viola

‐

tion of Vidinski’s statutory or due process rights. To the ex

‐

tent we have jurisdiction over his petition for review of the

order of removal (No. 13

‐ 2478), we deny that petition on the

merits.

Finally, we consider Vidinski’s separate petition for re

‐

view (No. 13

‐ 3263) of the Board’s denial of his motion to reo

‐

pen proceedings based on the ineffectiveness of his counsel in

the initial appeal to the Board, a decision we review only for

abuse of discretion. See Patel v. Holder

, 747 F.3d 493, 496 (7th

Cir. 2014). The Board found that Vidinski met the procedural

requirements of Matter of Lozada

, 19 I. & N. Dec. 637 (BIA

1988), for claims of ineffective counsel. The Board agreed that

Vidinski’s counsel in the initial appeal did not perform com

‐ petently because he filed a brief with “a very limited argu

‐

ment” on Vidinski’s behalf. The Board also found, however,

that Vidinski had failed to show prejudice because he did not

challenge the competence of his (different) counsel before the

immigration judge, whose factual findings were not clearly

erroneous.

Vidinski argues that prejudice should be presumed under

these circumstances, citing Dearinger ex rel. Volkova v. Reno

,

232 F.3d 1042 (9th Cir. 2000), and Dakane v. U.S. Attorney Gen

‐

eral

, 399 F.3d 1269 (11th Cir. 2004). These cases applied a re

‐

buttable presumption of prejudice where counsel had failed

to file an appeal on time ( Volkova ) or failed to file any brief at

all ( Dakane ). Vidinski’s case

, by contrast, was presented to the12 Nos. 13

‐ 2478 & 13

‐ 3263

Board in a timely appeal, but with only cursory development

of an argument.

We assume for purposes of this discussion that a pre

‐ sumption of prejudice might apply where briefing before the

Board is truly deficient. 4 But any such presumption has been

rebutted in this case. The Board found that Vidinski had failed

to show he was prejudiced by the inadequate argument in the

initial appeal. The Board noted that the judge had issued a

subpoena to Ms. Literski, that she had not appeared, that

Vidinski had chosen not to testify and not to present any re

‐

buttal evidence on the marriage fraud issue, and that Vidinski

did not claim his counsel was ineffective before the immigra

‐

tion judge. We find no error in the Board’s determination that

Vidinski was not prejudiced by the initially inadequate brief

‐ ing. In his motion to reopen proceedings, Vidinski presented

the arguments he makes before this court, and the Board rea

‐ sonably rejected them. We see no basis for ordering the Board

to consider the case a third time on the theory that the issues

were not adequately presented in the first round.

To sum up, we find no violation of Vidinski’s statutory or

constitutional rights. The removal proceedings here were fun

‐ damentally fair. The stay entered on December 11, 2014 is

LIFTED; Vidinski’s petition for review in No. 13

‐ 2478 is

DISMISSED in part for lack of jurisdiction and DENIED on

4 This presumption would differ sharply from, for example, claims of

ineffective assistance of counsel in habeas corpus cases under 28 U.S.C.

§ 2254, where a petitioner must show prejudice. Cf. Roe v. Flores

‐ Ortega

,

528 U.S. 470, 482–83 (2000) (stating general rule but presuming prejudice

where counsel simply fails to file appeal as directed by client).Nos. 13

‐ 2478 & 13

‐ 3263 13

the merits as to its remainder; and Vidinski’s petition for re

‐

view in No. 13

‐ 3263 is DENIED on the merits.