* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 00-60787

Summary Calendar

Lower Court No. A-29-437-324

_______________________

BENSON PLAUGH,

Petitioner,

versus

JOHN ASHCROFT, ATTORNEY GENERAL

Respondent.

_________________________________________________________________

Petition for Review of an Order of the

 Board of Immigration Appeals 

_________________________________________________________________

April 15, 2002

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

EDITH H. JONES:*

Petitioner Benson Plaugh, a native of St. Vincent who has

resided in this country for about 20 years, filed this petition for

review to challenge the order of deportation rendered against him

and sustained by the Board of Immigration Appeals. He challenges

the Board’s rejection of his application for a waiver of a joint
2

petition to remove conditions on him as an alien spouse. Finding

no reversible error of fact of law, we affirm the Board’s decision.

Plaugh overstayed his visitor visa for nearly seven years

until he married a United States citizen in 1989 and had his status

adjusted to that of conditional permanent resident. On April 30,

1991, he filed an I-751 joint petition under § 216(c)(1) of the

Immigration and Naturalization Act, 8 U.S.C. § 1186(c)(1), to

remove his conditional classification. Plaugh signed his own and

his wife’s names to the I-751 joint petition. Before that petition

could be ruled on, Plaugh and his wife divorced, and Plaugh

immediately filed an I-752 waiver application seeking a waiver

pursuant to § 216(c)(4)(B) of the Act based on a good faith

marriage.

At his deportation hearing, the immigration judge found

Plaugh deportable as charged, upheld the denial of the I-752 waiver

ane denied suspension of deportation. (Plaugh does not challenge

the denial of suspension of deportation.)

On appeal, the Board upheld the immigration judge’s

conclusion that Plaugh was “at fault” in failing properly to file

the waiver application. Plaugh challenges this decision on the

grounds that the immigration service should not have been allowed

to admit an affidavit of his ex-wife “who is now a hostile

witness,” and who resisted subpoenas to attend his hearing, and

because it did not matter that he signed his wife’s name to the I751 petition. The latter issue is the key to this appeal.
3

Section 216(c) states the criteria under which an alien

spouse can have conditions of residency removed, the first one of

which is that the spouse and the petitioning spouse jointly must

submit a petition to the Attorney General. The purpose of this

provision is to thwart the use of fraudulent marriages to obtain

citizenship status. The statute also permits removal of

conditional status, however, if the qualified marriage was entered

into in good faith, but the marriage has been terminated (other

than through the death of the spouse) and the alien was not at

fault in failing to meet the requirements of § 216(c)(1). INA

§ 216(c)(4)(B), 8 U.S.C. § 1186(c)(4)(B). Pursuant to this

alternative provision, Plaugh filed an I-752 waiver application, a

precondition of which is that is a properly filed I-751 joint

petition. In his immigration hearing, Plaugh admitted that he

signed his then-wife’s name to the I-751 joint petition. Contrary

to Plaugh’s assertion, the regulation clearly required his wife’s

signature:

Before form I-751 may be considered as

properly filed, . . . it must be properly

signed by the alien and the alien’s spouse.

8 CFR § 216.4(a)(1). Plaugh was plainly “at fault” for not

properly filing the I-751 joint petition, as the immigration judge

found and the Board affirmed. Because he was at fault, he was

ineligible for consideration of the I-751 waiver. 

Plaugh’s failure to demonstrate that he filed a proper

petition seeking waiver of conditional status should be enough to
4

deny him relief. The Board arguably went further, however, and

affirmed the immigration judge’s decision to admit the ex-wife’s

sworn written statement to an immigration examiner, in which she

denied either signing or authorizing her signature on the I-751.

Whether this evidence is strictly necessary to the finding that

Plaugh did not file a proper waiver application is unclear. In any

event, under the circumstances of this case, the Board did not

violate Plaugh’s due process right in admitting his wife’s sworn

statement. 

This court has held that affidavits from persons who are

not available for cross-examination will not satisfy the

constitutional test of fundamental fairness unless the INS first

establishes that despite reasonable efforts it was unable to

execute the presence of the witness at the hearing. Olabanji v.

INS, 973 F.2d 1232 (5th Cir. 1992), citing Hernandez-Garza v. INS,

882 F.2d 945, 948(5th Cir. 1989). Moreover, in Olabanji, this

court sided with approval a case holding that INS service of

subpoenas on an ex-wife demonstrated a sufficient to support

admissibility of her affidavit. 973 F.2d at 1236, n.3. The Board

demonstrated that both sides to this proceeding issued subpoenas

and made contact with Plaugh’s ex-wife in an attempt to get her to

testify. Instead, she was “stonewalling.” The ex-wife’s

unavailability was demonstrated in accord with Olabanji. Moreover,

the examiner who took her statement was available for crossexamination and Plaugh’s counsel received advance notice of the
5

statement. These circumstances, together with the fact that her

statement corroborated the undisputed evidence that she did not

sign the form I-751, demonstrate that admission of her statement

was not erroneous.

For these reasons, the petition for relief is DENIED and

the judgment of the Board is AFFIRMED.