In the

United States Court of Appeals

For the Seventh Circuit

No. 15-2198

MOHSEN KARROUMEH,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General

of the United States,

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals. 

A076-296-363

ARGUED JANUARY 20, 2016 — DECIDED APRIL 29, 2016

Before WOOD,Chief Judge,andMANION andROVNER, Circuit

Judges.

ROVNER, Circuit Judge. Mohsen Karroumeh petitions for

review of a final order of removal issued by the Board of

Immigration Appeals (“BIA” or “Board”). The Board determined that Karroumeh was removable because he entered into

a sham marriage for immigration purposes. We conclude that
2 No. 15-2198

Karroumeh is entitled to a new hearing before an immigration

judge (“IJ”) because he was prejudiced by his inability to crossexamine a key government witness whose evidence was

presented through a written statement. We grant the petition

and remand for a new hearing.

I.

Karroumeh is a native and citizen of Jordan who was

admitted to the United States as a visitor on May 2, 1996. At

that time, he was married to a Jordanian woman with whom

he had two children. In October 1996, he obtained a proxy

divorce from his wife, and in February 1997, he married Terri

Wright, a United States citizen who also had two children. A

few months later, Wright filed a Form I-130, Petition for Alien

Relative (“Petition”), on Karroumeh’s behalf, in conjunction

with a Form I-485, Application to Register Permanent Residence or Adjust Status (“Application”). The Petition and

Application were conditionally granted in June 1998. See

8 U.S.C. § 1186a. In July 2000, Karroumeh and Wright timely

filed a Form I-751, a joint petition to remove the conditions

from Karroumeh’s lawful permanent resident status. See

8 U.S.C. § 1186a(c)(1)(A). United States Citizenship & Immigration Services (“USCIS”) granted the joint petition in January

2001, and the conditions were removed from Karroumeh’s

lawful permanent resident status. See 8 U.S.C. § 1186a(c)(3)(B).

Several months later, in May 2001, Karroumeh filed his first

application for naturalization. During a February 2002 naturalization interview with USCIS, when questioned about the

absence of his U.S. citizen wife, Karroumeh revealed that he

and Wright were in the process of obtaining a divorce. A week
No. 15-2198 3

later, Karroumeh withdrew his application. In March 2002, his

divorce was finalized. In April 2003 and September 2006,

Karroumeh filed two more applications for naturalization. In

2008, USCIS began to investigate Karroumeh for immigration

fraud. 

In the course of that investigation, USCIS officer Leslie

Alfred obtained a sworn statement from Wright in December

2008, more than six years after her divorce from Karroumeh.

Although Alfred questioned Wright extensively about her

living situation during and after the marriage, her ambiguous

and sometimes contradictory responses raised as many

questions as they answered. In the interview, Wright revealed

that she had moved to Columbia, Mississippi in November

1997, approximately nine months after she married

Karroumeh, when her mother was jailed. But she also admitted

that she registered her car in Mississippi in August 1997, and

later said that she left for Mississippi in May 1997, which

would have been only three months after she married

Karroumeh. She said that she stayed in Mississippi for a year,

paying the rent at the Columbia address until her mother was

released from jail. She said both that she returned to the

Chicago area in November 1998, and also that she moved to

Hinsdale, Illinois in 2000, after moving back from Mississippi.

She said that she separated from Karroumeh and began living

apart from him in late 2000, and also that they “never lived

together.” R. at 516. She later said that they “spent time

together as a family, but we never lived together as a husband

and wife.” R. at 517.

At the time of the December 2008 interview, Wright was

living on South Springfield in Chicago, and had been living
4 No. 15-2198

there nearly two years. Prior to that, she resided on West

Cortez in Chicago for three years. When asked about registering her car during her marriage at addresses on Racine in

Chicago, and on Clarendon Hills Road in Willowbrook, she

replied that she only used the apartment in Clarendon Hills.1

When asked directly if she and her children ever lived with

Karroumeh, she replied that, when she was living in Hinsdale,

“for 3 or 4 days out of the week he would come over. We were

never on each other’s lease.” R. at 514. She also said that she

“stayed with him a few nights at Worth,” a suburb of Chicago

where Karroumeh leased an apartment. R. at 514. When told

that records showed she never lived at Karroumeh’s Worth

address, Wright cryptically replied, “You are correct lease

wise.” R. at 515. When Alfred asked why her signature

appeared on two of Karroumeh’s Worth leases, she replied,

“This is because he gave them to me. He already signed the

leases, I just signed it. I knew he was doing some bull crap, so

I just got my own place.” R. at 515.

Alfred also asked Wright if she ever thought that

Karroumeh married her just to get his green card, and she

replied, “I felt he didn’t want to live with me.” R. at 517. She

recalled signing a lease with Karroumeh before she left for

Mississippi in May 1997, and said that he told her they could

move into a two bedroom apartment, but that he never

followed through in getting the larger apartment, causing her

to feel that he did not wish to live with her. She filed one joint

tax return with him, in 1999, and received a $2000 refund. She

 Clarendon Hills is both the name of a road in Willowbrook, a suburb of 1

Chicago, and the name of a separate suburb, just north of Willowbrook.
No. 15-2198 5

did not know why her name and social security number were

on Karroumeh’s taxes for 1998 and 2000. Over the course of the

marriage, Karroumeh gave Wright a little more than $4000,

including $200 on their wedding day, $500 for clothing for her

children, and the tax refund. As a result of the investigation,

USCIS denied Karroumeh’s 2006 applicationfornaturalization. 

In June 2012, Karroumeh filed a “Petition for a Hearing on

Naturalization Application” in the district court in the Northern District of Illinois. In October 2012, the Department of

Homeland Security (“DHS”) commenced removal proceedings, serving Karroumeh with a Notice to Appear alleging that

he had procured his lawful permanent resident status through

fraud. See 8 U.S.C. § 1227(a)(1)(A). In particular, DHS asserted

that he had married a United States citizen solely to obtain an

immigration benefit. Because Karroumeh had filed an action in

the district court, DHS sought expedited proceedings in the

parallel removal action. Karroumeh denied the charges at his

first appearance before the IJ on February 13, 2013. The IJ

ordered DHS to file its evidence supporting the charge by May

13, 2013, and set a merits hearing for August 6, 2013. In April

2013, for reasons not apparent from the record, the IJ rescheduled the merits hearing to September 5, 2013. DHS submitted

its evidence in support of the charge and indicated that it

intended to present five witnesses at the hearing: Wright, her

two children, Karroumeh’s property manager Lance Olson,

and Leslie Alfred, the USCIS investigator who had taken the

sworn statement from Wright. DHS also filed a motion with

the IJ requesting issuance of a subpoena requiring Wright and

her children to appear at the September 5, 2013 hearing. The IJ
6 No. 15-2198

granted the motion for a subpoena but there is no evidence in

the record that the subpoena was served on Wright. 

The IJ moved the merits hearing one last time, to January

10, 2014. But no new subpoena was issued for Wright requiring

her appearance on the new date. And she did not in fact

appear on that date. On the day of the hearing, when the IJ

asked government counsel whether Wright was available to

testify, counsel replied, “None of those that have been subpoenaed have appeared for today’s hearing, Your Honor.” R. at

101. DHS then presented the testimony of Leslie Alfred. Alfred

authenticated sworn statements from Wright and from Lance

Olson, and then testified regarding his investigation into the

legitimacy of the marriage. In particular, Alfred cited as

suspicious the short amount of time between Karroumeh’s

divorce from his Jordanian wife and his marriage to Wright,

Wright’s statements that the couple never lived together, the

money that Karroumeh gave Wright during the marriage,

discrepancies regarding the filing of joint tax returns, Wright’s

hesitation when asked if she and Karroumeh had consummated the marriage, and differences between Wright’s testimony regarding the date of separation and the date noted on

the divorce decree, among other things. Karroumeh testified

both as an adverse witness in the DHS case-in-chief and on his

own behalf. 

Although Karroumehobjected to the admission of Wright’s

sworn statement, the IJ concluded during the hearing that the

document was admissible:

Now the Government is contending that your wife’s

statement supports their conclusion that your
No. 15-2198 7

marriage was a sham. Mr. Adkinson [Karroumeh’s

lawyer] has argued that that’s not true and that I

should not even consider your wife’s statement.

However, the Government has made an attempt to

have your wife come to court. They subpoenaed her

to come to court and she has not appeared. They

could not locate her and she could not come to

court. A third-party affidavit submitted by an outof-court declarant is admissible in evidence where

the Government has made an attempt to have that

witness present. You also said that you didn’t even

know where your wife was and you were not able to

have her come to court. So the Government does

have the right to use your wife’s statement against

you.

R. at 201–02. The IJ again ruled that Wright’s sworn statement

was admissible in the final oral ruling:

The respondent’s attorney objected to the Court’s

reliance on the affidavit of Terri Wright taken by the

DHS [sic] Officer Leslie Alfred. It is true that evidence is only admissible if it is relevant and fundamentally fair to both sides. Here, however, I find

that the admission of Terri Wright’s affidavit in the

course of USCIS’ investigation was not fundamentally unfair to the respondent. The Government

attorney made every effort to locate and bring Terri

Wright to court to testify. They had asked the

respondent for her address and asked for help in

locating her. They asked the Court for the issuance

of a subpoena, which was granted. Where the
8 No. 15-2198

Government has made every effort to present an

adverse witness, the admission of a third party’s

statement is not fundamentally unfair.

R. at 81–82.

The IJ ultimately concluded that the government met its

burdenofdemonstrating that Karroumeh’smarriage to Wright

was not bona fide. In both his oral and written rulings, the IJ

emphasized the importance of Wright’s sworn statement in

reaching that conclusion. In the final oral decision, the IJ relied

on Wright’s statement to demonstrate (1) that there was no

period of time where Wright and Karroumeh lived together at

the same address; (2) that Wright was living in Mississippi

when she obtained an Illinois driver’s license; (3) that Wright

never lived at Karroumeh’s Worth apartment; (4) that Wright

never signed a lease with Karroumeh but that Karroumeh had

manufactured evidence by having her sign leases after the fact;

(5) that the date of separation in the divorce decree was false;

and (6) that Karroumeh gave Wright money on multiple

occasions, including in exchange for filing a joint tax return, as

payments for entering into the marriage. In determining what

weight should be accorded the Government’s evidence and

whether the government had met its burden of proving by

clear and convincing evidence that the marriage was a sham,

the IJ stated:

First, the statement of Terri Wright is extremely

damaging to the respondent. While she did not

admit that she was paid money solely to enter into

the marriage, everything about the statement suggests that the respondent fabricated evidence to
No. 15-2198 9

contend that his marriage was a true marriage and

that he was residing together with his spouse. The

statement from TerriWright supports the conclusion

that the marriage was not entered into in good faith.

R. at 82. The IJ also cited the testimony of Alfred, which, of

course, was based in part on his interview with Wright. In

summing up the evidence, the IJ cited the quick succession of

Karroumeh’s arrival in the United States, proxy divorce and

marriage to Wright; the evidence that the couple never lived

together; and Karroumeh’s manufacture of evidence such as

Wright’s Illinois driver’s license, the leases, and the 1999 tax

return. The IJ ordered that Karroumeh’s lawful permanent

resident status be terminated and that he be granted voluntary

departure. 

On appeal, the BIA affirmed the IJ’s determination that

Karroumeh was removable because he entered into a sham

marriage for immigration purposes. Addressing Karroumeh’s

argument that the IJ failed to properly enforce the subpoena

issued to Wright, the BIA found that only the party seeking the

subpoena could claim the benefits of the enforcement provision found at 8 C.F.R. § 1003.35(b)(6). The BIA also rejected

Karroumeh’s claim that Wright’s sworn statement should not

have been allowed as evidence because Wright was not present

at the hearing for cross-examination. Because the government

made reasonable efforts to procure Wright’s presence and

because Karroumeh had an opportunity to cross-examine

Alfred, the agent who took Wright’s statement, the BIA

concluded that the statement was properly admitted as

evidence. The BIA found that the government adequately

established removability, and ordered Karroumeh’s removal
10 No. 15-2198

to Jordan. Karroumeh petitions this court for review of that

order.

II.

In his petition for review, Karroumeh contends that his

statutory and due process rights to cross-examine Wright were

violated when the IJ and BIA relied on Wright’s sworn statement even though the government failed to make reasonable

efforts to procure her presence at the hearing. Karroumeh

asserts that he was prejudiced by this error because there was

little basis for finding that his marriage was a sham without

Wright’s sworn statement. The government responds that it

did in fact make reasonable efforts to bring Wright to the

hearing and that those efforts are sufficient under the statute

to allow the sworn statement to be used against Karroumeh.

The government also asserts that it met its burden of demonstrating by clear and convincing evidence that Karroumeh

married Wright for the sole purpose of obtaining immigration

benefits.

“When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision

with its own reasoning, as it did here, we review the immigration judge's decision as supplemented by the Board.” Cece v.

Holder, 733 F.3d 662, 675 (7th Cir. 2013) (en banc). We review

the findings of fact for substantial evidence and reverse only if

the evidence compels a different result. Cece, 733 F.3d at

675–76. We review questions of law de novo, deferring to the

Board's reasonable interpretation set forth in precedential

opinions interpreting the statute. Chevron, U.S.A., Inc. v.Natural
No. 15-2198 11

Resources Def. Council, Inc., 467 U.S. 837, 842–43 (1984); Cece,

733 F.3d at 668–69. 

In seeking to remove Karroumeh from the United States,

the government bore the burden of proving by clear and

convincing evidence that he was deportable, and that his

marriage to Wright was a sham, entered into for the purpose

ofobtaining immigration benefits. See 8 U.S.C. § 1229a(c)(3)(A).

Aliens in removal proceedings are entitled to due process of

law under the Fifth Amendment. Pouhova v. Holder, 726 F.3d

1007, 1011 (7th Cir. 2013). The immigration statutes also

impose procedural requirements on removal proceedings, and

any proceeding that meets those requirements also satisfies

constitutional due process. See Pouhova, 726 F.3d at 1011. One

of the statutory procedural guarantees is the right to a reasonable opportunity to cross-examine witnesses presented by the

government. 8 U.S.C. § 1229a(b)(4)(B); Pouhova, 726 F.3d at

1011; Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). The

right to cross-examine adverse witnesses extends to those

whose statements are presented in written declarations as well

as those presented through live testimony. Malave, 610 F.3d at

487. “A declarant is a ‘witness’ when testimony comes in on

paper, no less than when it is offered in person.” Malave,

610 F.3d at 487. In challenging the BIA’s decision, Karroumeh

must demonstrate not only that this right was denied but also

that he was prejudiced by the denial. Pouhova, 726 F.3d at 1011.

We review de novo the legal question of whether the admission

of a document violated a petitioner’s procedural rights in a

removal proceeding and, if so, whether the admission was

prejudicial. Pouhova, 726 F.3d at 1011–12. 
12 No. 15-2198

The IJ found that the admission of Wright’s statement did

not violate Karroumeh’sprocedural rightsbecause the government used reasonable efforts to procure Wright’s attendence at

the hearing. We have expressed doubt whether the use of

“reasonable efforts” to procure the presence of the witness is

adequate to ensure the fairness of admitting documents whose

declarants cannot be cross-examined. Pouhova, 726 F.3dat 1015;

Malave, 610 F.3d at 487–88. But as in Pouhova and Malave, we

need not resolve that question here because the record demonstrates that the government failed to make reasonable efforts

to locate Wright and compel her presence at the hearing.

The very limited record on this issue demonstrates that the

government asked the court to issue a subpoena compelling

Wright’s appearance at the September 5, 2013 hearing. There

is no evidence in the record that the subpoena was served on

Wright. But more importantly, when the IJ moved the date of

the hearing to January 10, 2014, the government did not

request a new subpoena for that date and the court did not

issue an updated subpoena. Otherthan seeking a subpoena for

the wrong hearing date, there is no evidence in the record

regarding the government’s efforts to secure Wright’spresence

at the hearing. Nor did the IJ follow through on the regulatory

requirement to seek the assistance of the United States Attorney and the district court in enforcing the subpoena. Section

8 C.F.R. § 1003.35(b)(6) states that, if a subpoenaed witness

“neglects or refuses to appear and testify as directed ... the

Immigration Judge issuing the subpoena shall request the

United States Attorney ... 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[.]”
No. 15-2198 13

The BIA’s conclusion that only the party seeking the subpoena

could claim the benefits of the enforcement provision found at

8 C.F.R. § 1003.35(b)(6) may be correct but it is irrelevant here:

as the party seeking to use Wright’s sworn statement, the

government was required to use reasonable efforts to secure

Wright’s presence at the hearing, and yet the government

failed to employ this readily available tool. The government

has resources to locate persons who do not wish to be found.

Malave, 610 F.3d at 488. Indeed, the government found Wright

previously, when it wanted to interview her regarding her

marriage to Karroumeh. “A prediction that a person can’t be

found, or that cross-examination won’t be fruitful, is a poor

reason to deny a litigant the statutory entitlement to crossexamine adverse witnesses.” Malave, 610 F.3d at 488. Although

the government repeatedly invokes the phrase “reasonable

efforts” in its brief, it has never set forth what those efforts

entailed. Left with a record that shows nothing more than a

single, unserved subpoena for the wrong date, we cannot

conclude that the government used reasonable efforts to secure

Wright’s presence at the hearing. Karroumeh has demonstrated that his procedural right to cross-examination was

violated.

We turn to the question of prejudice. Wright’s statement

was the primary piece of evidence cited by the IJ in supporting

the decision. The IJ described the statement as “extremely

damaging” to Karroumeh. In addition to Wright’s statement,

the evidence consisted of Wright’s car registrations and

driver’s license renewal; a few photographs of the couple; the

landlord’s letter and sworn statement; leases; the divorce

decree; and the time line of Karroumeh’s entry into the United
14 No. 15-2198

States followed by his relatively quick proxy divorce and

marriage to a United States citizen. Without Wright’s statement, the government could not demonstrate by “clear and

convincing” evidence that the marriage was a sham. Much of

the evidence was consistent with Karroumeh’s testimony that

he and Wright mostly lived apart because his apartment was

not large enough to accommodate her children, and because

she temporarily moved to Mississippi for a period due to a

family crisis. The photographs showed nothing more than

Wright and her children with Karroumeh at an amusement

park, and the wedding. The tax returns were jointly filed, and

the leases were in the names “Mohsen and Terri Karroumeh.”

Without Wright’s statement denying that she filed joint tax

returns for two of the three relevant years, and that she signed

the leases after the fact, the government presented little

evidence that the marriage was a sham. 

Evidence in removal proceedings need not strictly conform

to the Federal Rules of Evidence, but the admission of evidence

must be probative and fundamentally fair. Pouhova, 726 F.3d at

1011. Fairness, in turn, depends in part on the reliability of the

evidence. Id. Hearsay is generally admissible in administrative

proceedings, and may supply substantial evidence in support

of an administrative decision, so long as there has been an

opportunity for cross-examination. Malave, 610 F.3d at 487. As

we noted above, Karroumeh had no opportunity to crossexamine Wright regarding her out-of-court statement. 

Wright’s statement is marked by contradictions and

inconsistencies that call its reliability into question. For

example, Wright gave three different dates for her move to

Mississippi and two different dates for her return to Illinois.
No. 15-2198 15

She both denied signing leases with Karroumeh and also

admitted signing them. Some of her statements beg for an

explanation, such as her claim that she did not live with

Karroumeh at his Worth address “lease wise.” Wright gave the

statement more than six years after her divorce from

Karroumeh. In a response that could be interpreted as displaying bias , she said that she divorced Karroumeh because after

“constant lie after lie, he never followed through with his plans

like getting a house[.]” Karroumeh has been deprived of an

opportunity to ask clarifying questions or pursue areas left

unexplored by Leslie. In his appeal to the Board, Karroumeh

noted that Leslie never directly asked Wright if she was

engaged in a fraudulent marriage, never asked for themeaning

of the term “lease wise,” never inquired why Karroumeh gave

Wright money during the marriage, and never asked whether

Wright was prosecuted for marriage fraud. In light of the

contradictions and inconsistencies as well as Wright’s motive

to testify against her ex-husband, her hearsay statement was

unreliable and Karroumeh should have been allowed an

opportunity to test it with cross-examination. The admission of

her statement under these circumstances was not fundamentally fair. And without this evidence, the government could not

meet its burden of demonstrating by clear and convincing

evidence that the marriage was a sham. Karroumeh has thus

established prejudice. 

As we noted in Pouhova, it is unclear whether the government’s reasonable efforts to locate a witness could render

unreliable hearsay any more reliable or its use any more fair

than if the government made no effort to secure the presence

of the witness. 726 F.3d at 1015. Because the government did
16 No. 15-2198

not make reasonable efforts to bring Wright to the hearing, we

reserve that question for a case where it would affect the

outcome. In this case, it is clear that Karroumeh’s procedural

right to cross-examine the main witness against him was

violated, and that this error was prejudicial. We therefore grant

his petition and remand for ahearing that provides Karroumeh

with all the procedural rights due to him. 

PETITION GRANTED.