In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3199

SULTANA ALIMI,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A47-279-565

____________

ARGUED APRIL 10, 2007—DECIDED JUNE 6, 2007

____________

Before BAUER, POSNER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. Sultana Alimi, a lawful permanent

resident of the United States, was ordered removed by an

immigration judge (“IJ”) on June 8, 2005, on the ground

that she had engaged in alien smuggling. The Board of

Immigration Appeals (“BIA” or “Board”) adopted and

affirmed the decision of the IJ. Ms. Alimi timely petitioned

for review of the decision of the BIA. For the reasons set

forth in this opinion, we deny the petition for review and

affirm the decision of the BIA.
2 No. 06-3199

I

BACKGROUND

A.

Ms. Alimi is a fifty-year-old ethnic Albanian, a native and

citizen of Macedonia. She has been a lawful permanent

resident since 2000, a status she obtained through her

husband, a United States citizen. Ms. Alimi has one United

States citizen daughter, Fazile, and two permanent resident

sons. Ms. Alimi does not speak English and cannot read or

write in her native language.

In February 2001, Ms. Alimi traveled to Macedonia.

According to her testimony at the removal hearing, Ms.

Alimi took the United States passport belonging to her

daughter, Fazile, to Macedonia, for the purpose of assisting

Arejta Saliu (née Imeri), the new wife of her nephew, to

enter the United States by posing as Fazile. On the return

trip, immigration officials took Ms. Alimi and Saliu aside

and then separated them. When Saliu was questioned, she

apparently first claimed to be Fazile Alimi, but recanted

and admitted her identity. Ms. Alimi also was questioned.

An interpreter, located in another city, provided interpretation services by telephone. Ms. Alimi’s responses were

typed simultaneously by her interviewing officer. According to the record created by that officer, Ms. Alimi admitted that the woman who had accompanied her on the

return trip was not her daughter but her nephew’s wife.

Ms. Alimi told the officer that her nephew had requested

her assistance in bringing his new wife to the United States.

She further admitted that she had brought Fazile’s passport

to Macedonia in order to facilitate Saliu’s entry. At her

immigration hearing, Ms. Alimi also testified that the

officer raised his voice to her and threatened that he would

handcuff her if she did not tell the truth.
No. 06-3199 3

1 A discretionary waiver of inadmissibility for document fraud

may be available to the spouse of a United States citizen or

permanent resident, such as Saliu, when extreme hardship

would result to the United States citizen spouse if the alien were

not permitted to return; a more limited discretionary waiver is

available for aliens such as Ms. Alimi, who are found inadmissible on a smuggling charge, and that waiver is available only

when the smuggled alien is an immediate relative of the

smuggler. Compare 8 U.S.C. § 1182(i) (waiver of fraud) with

§ 1182(d)(11) (waiver of smuggling).

2 8 U.S.C. § 1182(a)(6)(C)(i) provides:

Any alien who, by fraud or willfully misrepresenting a

material fact, seeks to procure (or has sought to procure or

has procured) a visa, other documentation, or admission

(continued...)

Notably, it appears from the record that Saliu was subject

to expedited removal on the basis of fraud, but later

received a waiver permitting her to return to the United

States on the basis of her marriage and was granted

permanent residency in 2003. Because Ms. Alimi was a

permanent resident, she was placed in removal proceedings; the relief granted to Saliu on her later, lawful reentry

to the United States was not available to Ms. Alimi in those

proceedings.1

B.

Based on the events at the airport in February 2001,

immigration authorities sought the removal of Ms. Alimi

by charging her with two grouds of removability: (1)

having engaged in fraud to procure an immigration benefit,

see 8 U.S.C. § 1182(a)(6)(C)(i) (“the fraud charge”);2

 (2)
4 No. 06-3199

2 (...continued)

into the United States or other benefit provided under this

chapter is inadmissible.

3 8 U.S.C. § 1182(a)(6)(E)(i) provides:

Any alien who at any time knowingly has encouraged,

induced, assisted, abetted, or aided any other alien to enter

or to try to enter the United States in violation of law is

inadmissible.

4 At the second of these preliminary hearings, counsel for Ms.

Alimi indicated that Ms. Alimi intended to “invoke her [] right

not to testify against herself.” A.R. at 64. She testified, however,

without objection at the two subsequent sessions.

having knowingly encouraged, induced, assisted, abetted

or aided another alien to try to enter the United States in

violation of law, see id. § 1182(a)(6)(E)(i) (“the smuggling

charge”).3

 Ms. Alimi appeared in immigration court,

represented by counsel, for two preliminary hearings.4

 The

case then was scheduled for a merits hearing on September

24, 2004.

At the first merits hearing, counsel for the Department of

Homeland Security (“DHS”) began examining Ms. Alimi

through a court-provided interpreter. After a few brief

questions, the interpreter noted that she and Ms. Alimi

were struggling to understand each other because they

spoke different Albanian dialects. The IJ conferred with the

parties, and, although neither counsel desired to continue

with the hearing under the circumstances, the IJ suggested

that they move forward for a brief period and then reassess

the extent of the misunderstanding between the interpreter

and Ms. Alimi. After a few more questions, the interpreter

herself interrupted and said, “[t]his is just too difficult for
No. 06-3199 5

me. . . . I don’t understand what, what she’s saying.” A.R.

at 106. The IJ, therefore, terminated the testimony.

Before closing the hearing, the IJ discussed several

remaining administrative matters with the parties. During

this exchange, the Government offered into evidence the

record of the questioning that took place during the airport

interview. Ms. Alimi’s attorney objected. He claimed that

the proffered statement was hearsay, and, given the lack of

a translator’s certification, potentially was tainted by

similar translation problems to those that had been encountered at the hearing. The attorney further claimed that Ms.

Alimi had a right to an attorney during the airport interview and that the examining officers had an obligation to

advise her of that right, citing 8 C.F.R. § 287.3; in the

attorney’s view, the absence of this advice, alongside the

officer’s threat to handcuff Ms. Alimi, amounted to coercion. The IJ reserved judgment, but informed the Government that it would be a “good idea” if the officer who took

the statement were present at the next hearing. A.R. at 117.

If he were not available, continued the IJ, an explanation

for his absence ought to be provided to the court. The IJ

then closed and recalendared the hearing for July 27, 2005.

See A.R. at 254.

For reasons undisclosed by the record, the court moved

up the hearing date to June 8, 2005. On the day of the

hearing, the Government filed an emergency motion for a

continuance. In the motion, the Government claimed that

it had been prepared to proceed as originally scheduled on

July 27, 2005, and had secured the availability of the

inspecting officers to testify on that date. It had been

unable, however, to secure those witnesses for the rescheduled June hearing: One of the witnesses was on detail in a

Detroit location and the other was unavailable because he
6 No. 06-3199

5 In the oral decision on the record, the IJ found both charges

sustained. See A.R. at 187. In the full decision, the IJ found the

(continued...)

was on family-related personal leave. See A.R. at 129, 193-

94. The court denied the motion and proceeded with the

hearing without the officers, but again reserved judgment

on the admissibility of the airport statement.

Ms. Alimi and Saliu testified as to Saliu’s attempt to enter

the United States and the statements made to immigration

officers at the airport. In her testimony, Ms. Alimi admitted

taking Fazile’s passport for the purpose of assisting Saliu

with her entry to the United States. She testified, consistent

with the record of her statement at the airport prepared by

the inspecting officers, that she initially had told the

officers that Saliu was her daughter, Fazile, but that she

later told the officer that she had made a mistake and that

Saliu was not her daughter. At the close of the testimony,

the IJ admitted her airport statement, concluding that her

testimony had not established that the statement either was

coerced or was translated improperly sufficient to require

the Government to respond with witnesses in support of its

admission. A.R. at 180.

Ms. Alimi contested both charges of removability alleged

by the Government. She did not, however, request any

form of relief from removal in the event that the IJ found

the charges sustained. At the conclusion of the hearing, the

IJ held that Ms. Alimi was removable on the basis of the

smuggling charge; he also determined, however, that the

Government had not sustained its burden of proof on the

fraud charge because Ms. Alimi had sought no immigration benefit for herself from her misrepresentations, as

contemplated by the statute.5 See 8 U.S.C. § 1182(a)(6)(C)(i).
No. 06-3199 7

5 (...continued)

fraud charge unsustained. See A.R. at 52. No party contends

on appeal that the fraud charge was sustained.

In his written decision, the IJ found that the smuggling

charge had been proven by Ms. Alimi’s testimony. Despite

her arguments to the contrary, the IJ found that Ms. Alimi’s

smuggling was premeditated: Her in-court testimony

established that she had left the United States with Fazile’s

passport to bring it to Saliu and had made arrangements to

travel into the United States with her pretending to be her

mother. He rejected Ms. Alimi’s claim that, because she

was not the one to physically alter the passport by removing Fazile’s picture and placing Saliu’s in its stead, she was

merely an “unwitting player,” A.R. at 48; he instead found

that her testimony established that she had full knowledge

of the purpose for which she brought the passport. Accordingly, the IJ ordered Ms. Alimi removed to Macedonia.

Ms. Alimi timely appealed her removal order to the BIA.

In her brief on appeal, Ms. Alimi claimed that her statement from the airport should not have been admitted

because of potential difficulties in interpretation, coercion

by the inspecting officer, fundamental unfairness in

admitting the statement without producing the officer in

court and failure of the officer to advise her of a right to

counsel. Additionally, Ms. Alimi claimed that she provided

no affirmative acts of assistance to Saliu in her attempt to

enter the United States and, therefore, under an interpretation of the smuggling provision adopted by the Sixth

Circuit in Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005),

had not engaged in the sort of “surreptitious activity”

necessary to support a smuggling charge. A.R. at 47.

Finally, she claimed that, because Saliu’s fraud eventually
8 No. 06-3199

6 See supra note 1.

was waived and she was admitted to the United States, Ms.

Alimi’s assistance in Saliu’s initial attempt to enter should

not result in Ms. Alimi’s removal.

The BIA adopted, affirmed and supplemented the

decision of the IJ. It first determined that there had been no

due process violation in the manner in which translation

services were provided at the removal hearings. Specifically, it noted that the IJ had continued proceedings in

order to find a more appropriate interpreter and that, at the

final hearing, no objections had been made to the interpreter’s ability to understand Ms. Alimi. With the exception of a miscommunication in stating her address, the

record reveals no problems with interpretation at the

dispositive hearing. The Board then noted that, whatever

the objections to the admission of the airport statement in

evidence, Ms. Alimi had admitted that the statement was

truthful during her testimony in court. It further noted that,

in any event, the charge was supported by sufficient

evidence even without the airport statement. The Board

then noted that it did not accept Ms. Alimi’s contention

that she had engaged in no affirmative acts of assistance to

Saliu; in its view, her testimony established otherwise.

Finally, the Board stated that it had no authority to waive

the alien smuggling charge because the smuggled alien,

Saliu, had been admitted to the United States under a

waiver that was not available to Ms. Alimi.6
No. 06-3199 9

II

DISCUSSION

A.

Ms. Alimi claims that she was denied her right to due

process of law in her immigration proceeding. Although

she couches her objections in various terms, Ms. Alimi

summarizes them essentially as due process violations in

the admitting of the airport statement and in failing to

require the appearance of the officer who took her statement at the airport. We begin by noting that, when the

Board adopts, affirms and supplements a decision of the IJ,

we review the IJ’s decision as supplemented by the BIA.

Pavlyk v. Gonzales, 469 F.3d 1082, 1087 (7th Cir. 2006).

We review de novo an alien’s claim that she was denied

due process of law. See Shymelskyy v. Gonzales, 477 F.3d 474,

482 (7th Cir. 2007). To warrant a new immigration hearing

on a due process claim, an alien must establish that she was

prejudiced, that is, that the error likely affected the result

of the proceedings. Id. Additionally, this court may consider only those contentions on which the alien has exhausted all administrative remedies available as of right. 8

U.S.C. § 1252(d)(1).

In cases claiming due process violations in immigration

proceedings, we recently have reminded petitioners that

proceedings which meet the statutory and regulatory

standards governing the conduct of removal hearings, as a

general rule, comport with due process. Apouviepseakoda v.

Gonzales, 475 F.3d 881, 884-85 (7th Cir. 2007). Accordingly,

it is generally appropriate to assess “due process” challenges through the statutory and regulatory lenses in 8

U.S.C. § 1229a and 8 C.F.R. §§ 1240.1 and 1240.10.
10 No. 06-3199

7 8 U.S.C. § 1229a(b)(4) provides:

(4) Alien’s rights in proceeding

In proceedings under this section, under regulations of

the Attorney General—

(A) the alien shall have the privilege of being represented, at no expense to the Government, by counsel of

the alien’s choosing who is authorized to practice in

such proceedings,

(B) the alien 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 but these

rights shall not entitle the alien to examine such national security information as the Government may

proffer in opposition to the alien’s admission to the

United States or to an application by the alien for

discretionary relief under this chapter, and

(C) a complete record shall be kept of all testimony and

evidence produced at the proceeding.

B.

Ms. Alimi first submits that the failure of the IJ to make

an explicit ruling on the admissibility of the airport statement deprived her of her right to “cross exam[ine] and in

essence challenge the government’s case against” her, in

violation of 8 U.S.C. § 1229a(b)(4).7

 Petitioner’s Br. at 17.

Without citation to any authority, Ms. Alimi claims that the

IJ was “under an obligation” to render a decision because

Ms. Alimi believed her hearing statement was taken in

order to oppose the admission of the statement rather than

on the merits of the case. Id. at 18. In essence, she believed

that she was testifying at the immigration equivalent of a

hearing on a motion to suppress a statement as involun-
No. 06-3199 11

tary, not a proceeding to determine guilt or innocence. She

claims that she would have exercised her privilege against

“self-incrimination” had she known the testimony was on

the merits. Id. at 19. In her view, such right was available

because alien smuggling is a crime as well as a ground of

inadmissibility.

We cannot accept Ms. Alimi’s claim for several reasons.

Although the admission of the statement was challenged

before the BIA, Ms. Alimi did not claim in that proceeding

that the IJ had an obligation to rule on the issue before

proceeding with a hearing on the merits. We also note that

there is nothing in the record to support her assertion that

she believed that she was testifying on anything other than

the merits of her claim. Finally, although she previously

had indicated a desire not to testify, no objection was made

to her testimony, which was offered as a part of the Government’s case-in-chief and covered subjects that had

nothing to do with the conduct of the airport hearing.

1.

Acknowledging that immigration proceedings are

governed by a “looser standard of due process,” see Olowo

v. Ashcroft, 368 F.3d 692, 699 (7th Cir. 2004), and not by the

rules of evidence, Ms. Alimi nevertheless submits that her

airport statement was hearsay and that its use was “clearly

and inherently unfair.” Petitioner’s Br. at 20. In her view,

the immigration judge erred in admitting the statement

without requiring the officer who took the statement to be

present for cross-examination. This claim was presented to

the BIA. In response, the Government contends that the

only relevant procedural right afforded by § 1229a(b)(4) is

the right to cross-examine witnesses; there is no affirmative

duty on the part of DHS to present a witness.
12 No. 06-3199

8 Ms. Alimi’s further support for her contention is an unpublished disposition of this court, Jung v. INS, No. 92-3414, 1993

WL 269429 (7th Cir. July 16, 1993). Although the Federal Rules

of Appellate Procedure recently have been amended to require

the circuit courts to permit citation to unpublished decisions,

the new rule only applies to unpublished decisions issued on or

after January 1, 2007. Because Ms. Alimi relies on an unpublished decision from 1993, it cannot be cited to this court. See

Fed. R. App. P. 32.1; Cir. R. 32.1(d) (“No order of this

court issued before January 1, 2007, may be cited except to

support a claim of preclusion (res judicata or collateral estoppel)

or to establish the law of the case from an earlier appeal in the

same proceeding.”). We, therefore, decline to address her

contentions based on Jung.

Ms. Alimi points to no authority to support her view that

a document’s author must be present to satisfy the requisites of due process in immigration proceedings. Instead,

she relies on Olowo, 368 F.3d 692, in which this court

rejected a due process challenge to the admission of the

testimony of an immigration inspector that the alien had

challenged as inconsistent and unreliable. Although Olowo

does state that the testimony, although hearsay, did not

pose a due process problem in part because it was subject

to cross-examination, it was addressing the claim that

admission of hearsay statements, which contradicted and

undermined the petitioner’s own testimony and which the

petitioner had characterized as unreliable, was fundamentally unfair. When Ms. Alimi’s own testimony does not

contradict the hearsay statement and, indeed, confirms its

truth, its admission does not pose a due process problem

for lack of cross-examination.8

Ms. Alimi has failed to demonstrate a statutory right to

the officer’s presence, nor has she established that his
No. 06-3199 13

9 Balogun v. Ashcroft, 374 F.3d 492, 505 (7th Cir. 2004), quoted the

Second Circuit in Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir.

2004), for the following reliability factors relevant to airport

testimony:

First, a record of the interview that merely summarizes or

paraphrases the alien’s statements is inherently less reliable

than a verbatim account or transcript. Second, similarly

less reliable are interviews in which the questions asked

are not designed to elicit the details of an asylum claim, or

the INS officer fails to ask follow-up questions that would

aid the alien in developing his or her account. Third, an

interview may be deemed less reliable if the alien appears

to have been reluctant to reveal information to INS officials

(continued...)

absence resulted in a proceeding that was both fundamentally unfair and prejudicial.

2.

Ms. Alimi further contends that her due process rights

were violated through the introduction of the record of the

airport interview because those proceedings were rendered

unreliable by the Government’s provision of an interpreter

that she could not understand. She relies upon our decision

in Balogun v. Ashcroft, 374 F.3d 492 (7th Cir. 2004), in

support of this argument. In that case, we discussed certain

standards for the reliability of airport interview records

used in immigration proceedings. In Balogun, however, we

considered the admissibility of statements made in airport

interviews that contradicted in-court testimony and therefore supported adverse credibility findings, or further

supported the immigration judge’s assessment that an

asylum applicant did not fear persecution.9
14 No. 06-3199

9 (...continued)

because of prior interrogation sessions or other coercive

experiences in his or her home country. Finally, if the alien’s

answers to the questions posed suggest that the alien did

not understand English or the translations provided by the

interpreter, the alien’s statements should be considered

less reliable. Examining the interview in light of these

factors will focus the agency’s inquiry on whether the

record of the interview accurately reflects the alien’s

statements, whether the alien had a full opportunity to

express him- or herself, and whether the alien’s statements are likely to reflect his or her actual beliefs and fears.

Balogun v. Ashcroft, 374 F.3d 492, 505 (7th Cir. 2004).

Balogun could support certain claims Ms. Alimi makes

about reliability. This case does involve a language barrier

and Ms. Alimi did not have the sort of educational background that might induce any comfort level with respect to

her ability to deal with the immigration authorities. See

Balogun, 374 F.3d at 505-06. In the record of the airport

interview, Ms. Alimi appears to have acknowledged her

understanding of the questions put to her. Nevertheless, at

trial, she stated that she did not understand “most of [the]

questions” asked, or the interpreter’s dialect. A.R. at 144.

She then stated that she responded to “what [she] was

understanding [sic].” Id.

These factors in another case might be worthy of more

pause. Here, however, it is difficult for Ms. Alimi to make

a case for unreliability of the airport statement when she

later admitted, in her own live testimony before the IJ, that

the content of the airport statement was true and further

admitted, once again, the facts contained in that earlier
No. 06-3199 15

10 Ms. Alimi makes two additional claims relating to the

unreliability of the airport statement. First, she states that she

was not informed of her right to have an attorney present. She

also claims that the statement was the product of coercion

because the officer “raise[d] his voice,” A.R. at 161, and informed her that she could be handcuffed. In any event, we need

not pass on the substance of either of these claims where they

simply support Ms. Alimi’s contention that the record of the

proceedings was unreliable; she cannot admit that she told the

officers the truth and separately admit the salient facts included in the record while simultaneously urging that the record is unreliable.

11 8 C.F.R. § 1240.10(a) provides, in relevant part, that the

immigration judge shall, in a removal hearing,

(1) Advise the respondent of his or her right to representation, at no expense to the government . . . ;

(2) Advise the respondent of the availability of free legal

services provided by organizations and attorneys . . . ;

(3) Ascertain that the respondent has received a list of such

programs, and a copy of appeal rights;

(4) Advise the respondent that he or she will have a reasonable opportunity to examine and object to the evidence

against him or her, to present evidence in his or her own

behalf and to cross-examine witnesses presented by the

(continued...)

airport statement.10

3.

Finally, Ms. Alimi claims that she had a procedural right,

embodied in the regulations, to be informed of various

rights in removal proceedings. See 8 C.F.R. § 1240.10(a)(1).11
16 No. 06-3199

11 (...continued)

government . . . ;

(5) Place the respondent under oath;

(6) Read the factual allegations and the charges in the notice

to appear to the respondent and explain them in nontechnical language; and

(7) Enter the notice to appear as an exhibit in the Record of

Proceeding.

The Government counters that Ms. Alimi failed to exhaust

this claim, and that, consequently, this court may not

review it. The Government’s representation that this claim

was not presented to the Board is supported by the record.

In any event, even if we could review the merits of her

claim, she has not established that a violation of this

particular procedural rule would have caused her any

prejudice. She was represented by counsel throughout the

proceedings, and she has made no showing as to how she

would have conducted herself differently had she been

advised in the manner that she claims was required.

Indeed, she has exercised many of the rights of which she

was not advised by the IJ. See, e.g., Mema v. Gonzales, 474

F.3d 412, 421 (7th Cir. 2007) (rejecting a due process failureto-inform claim for failure to demonstrate prejudice where

the alien was represented and did not assert a lack of actual

knowledge of the right); Bejko v. Gonzales, 468 F.3d 482, 487-

88 (7th Cir. 2006) (same); Feto v. Gonzales, 433 F.3d 907, 912-

13 (7th Cir. 2006) (concluding that the IJ’s failure to inform

the alien of the rights in 8 C.F.R. § 1240.10 was harmless

error under the circumstances).
No. 06-3199 17

Conclusion

Ms. Alimi has not made a substantial argument that she

was denied a constitutional right to due process in her

removal proceeding, nor has she demonstrated that the

proceeding failed to comply with the applicable statutory

standards. Moreover, given her admissions before the IJ,

we cannot say, in any event, that she suffered any prejudice

from the due process matters that she has asked that we

review. Although she was not advised fully of her rights in

her removal proceeding, as provided in the regulations, she

also has failed to demonstrate that this procedural error

caused any prejudice under the circumstances. Accordingly, we must deny the petition and affirm the decision of

the Board.

PETITION DENIED

DECISION AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-6-07