Maria Pouhova v. Eric Holder, Jr., 726 F.3d 1007

Background

Maria Pouhova, a Bulgarian national, faced removal based on a smuggling charge (assisting an alien to enter using her Bulgarian passport) and other grounds; the smuggling claim was dispositive of inadmissibility and removability.
Government’s sole proof of smuggling consisted of: (1) a 2000 written statement by Boriana Dimova taken at O’Hare Airport by Inspector Bryan Weiler (interview conducted in English without an interpreter); and (2) a Form I-213 prepared by Inspector Weiler in 2007 recounting the 2000 interview and asserting that Pouhova mailed the passport and arranged Dimova’s travel.
Dimova had been subject to expedited removal in 2000 and returned to Bulgaria; neither Dimova nor Inspector Weiler testified at Pouhova’s removal hearing despite the government’s earlier opportunity to produce them.
The immigration judge credited the two government documents, discredited Pouhova’s testimony, found clear-and-convincing evidence of smuggling, and denied adjustment of status; the BIA affirmed.
On review, the Seventh Circuit concluded both documents were unreliable hearsay admitted without giving Pouhova an opportunity to cross-examine Dimova or Weiler, and that their admission prejudiced her. The court vacated the removal order and remanded for a new hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Dimova’s written airport statement	Dimova’s statement was unreliable: taken in English without an interpreter; Pouhova had no chance to cross-examine Dimova or the officer about language ability.	Statement is probative and against penal interest; admissible despite hearsay.	Court held the statement was unreliable and admission without cross-exam violated statutory procedural rights.
Admissibility of Form I-213	I-213 was not inherently reliable: prepared seven years after the interview, contains inconsistencies with Dimova’s statement, and reports a conversation with someone other than the form’s subject.	I-213s are generally trustworthy administrative records and admissible absent the author’s testimony.	Court held this particular I-213 was not inherently reliable and should not have been admitted without opportunity for cross-examination.
Government’s duty to produce witnesses / "reasonable efforts"	Admission was unfair regardless; if "reasonable efforts" standard applies, government still failed to make reasonable efforts to secure Weiler or another witness to testify about Dimova’s language ability.	Government argued it made reasonable efforts to locate witnesses and that absent-witness statements may be admitted if reasonable efforts were made.	Court assumed the standard but found government did not make reasonable efforts (chose not to call Weiler); admission therefore unfair.
Prejudice from admission of hearsay	Admission of the two documents—government’s only evidence—prejudiced Pouhova’s ability to challenge smuggling and to obtain adjustment of status.	Admission harmless because evidence was probative and judge’s adverse credibility finding was proper.	Court held Pouhova was prejudiced and remanded for a new hearing; vacated findings of credibility, inadmissibility, removability, and denial of discretion.

Key Cases Cited

Reno v. Flores, 507 U.S. 292 (1993) (aliens in removal proceedings are entitled to due process under the Fifth Amendment)
Barradas v. Holder, 582 F.3d 754 (7th Cir. 2009) (evidence in removal proceedings must be probative and its admission fundamentally fair; I-213 admissible as administrative record but may be unreliable in particular cases)
Hernandez-Garza v. I.N.S., 882 F.2d 945 (5th Cir. 1989) (statements taken in a language the declarant does not understand are of questionable probative value absent corroboration)
Rosendo-Ramirez v. I.N.S., 32 F.3d 1085 (7th Cir. 1994) (I-213 is typically a record of conversation with the alien and admissible, but its probative value depends on accuracy and source)
Jamal-Daoud v. Gonzales, 403 F.3d 918 (7th Cir. 2005) (airport interviews are admissible only if reliable)
Ocasio v. Ashcroft, 375 F.3d 105 (1st Cir. 2004) (government may not use an affidavit from an absent witness unless it first establishes reasonable efforts to secure the witness’s presence)