820 F.3d 890
7th Cir.2016Background
- Mohsen Karroumeh, a Jordanian national, obtained conditional lawful permanent resident status through marriage to U.S. citizen Terri Wright; conditions were removed in 2001.
- USCIS investigated alleged marriage fraud after Karroumeh’s later naturalization applications; investigator Leslie Alfred took a sworn written statement from Wright in December 2008.
- DHS initiated removal proceedings in 2012 alleging Karroumeh’s marriage to Wright was a sham; the IJ subpoenaed Wright for a September 2013 hearing but the subpoena was not shown served and no new subpoena was issued after the hearing was continued to January 2014.
- Wright did not appear at the January 2014 hearing; the government introduced her 2008 sworn statement through Alfred and Alfred testified about his investigation. Karroumeh objected to admitting Wright’s out-of-court statement without cross-examination.
- The IJ relied heavily on Wright’s written statement (calling it “extremely damaging”), found the marriage fraudulent by clear and convincing evidence, terminated Karroumeh’s LPR status and granted removal; the BIA affirmed.
- The Seventh Circuit granted review and concluded the government failed to make reasonable efforts to secure Wright’s live testimony and that admitting her statement without cross-examination prejudiced Karroumeh; petition granted and case remanded for a new hearing.
Issues
| Issue | Karroumeh’s Argument | DHS’s Argument | Held |
|---|---|---|---|
| Whether admission of Wright’s out-of-court sworn statement without her presence violated the statutory/due process right to confront and cross-examine adverse witnesses | Admission violated §1229a(b)(4)(B) and Fifth Amendment because Wright was not produced for cross-examination | Government argued it made reasonable efforts to procure Wright’s presence and Karroumeh could cross-examine investigator Alfred instead | Court: Government did not show reasonable efforts to secure Wright for the actual hearing date; admission violated procedural rights |
| Whether the IJ/BIA adequately enforced the subpoena and used enforcement tools (e.g., U.S. Attorney / district court) | Subpoena enforcement was required and government failed to pursue available enforcement mechanisms | DHS argued only the subpoenaing party could invoke enforcement procedures and that it reasonably attempted to produce Wright | Court: Regardless of BIA’s view about who may invoke enforcement, government failed to use available enforcement tools (no new subpoena, no enforcement request) |
| Whether Wright’s written statement was sufficiently reliable and admissible without cross-examination | Statement was inconsistent, biased, and required cross-examination; without it, evidence was insufficient | DHS argued statement was admissible because reasonable efforts to procure witness were made and Alfred’s testimony supplied opportunity to probe | Court: Statement contained contradictions and was central to IJ’s decision; without cross-examination its admission was not fundamentally fair and unreliable |
| Whether the admission of Wright’s statement was prejudicial (i.e., affected outcome) | Admission was prejudicial because it was the primary evidence and the remaining record did not meet clear-and-convincing standard | DHS argued other documentary and testimonial evidence supported finding of sham marriage | Court: Prejudicial — Wright’s statement was pivotal; absent it government failed to meet clear-and-convincing burden; remand for new hearing |
Key Cases Cited
- Cece v. Holder, 733 F.3d 662 (7th Cir. 2013) (standard of review and treatment when BIA adopts and supplements IJ decision)
- Pouhova v. Holder, 726 F.3d 1007 (7th Cir. 2013) (cross-examination rights and analysis of "reasonable efforts" to procure witness)
- Malave v. Holder, 610 F.3d 483 (7th Cir. 2010) (declarant’s written statement is hearsay but may be admissible only if opportunity for cross-examination exists)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (deference to agency interpretations when reviewing legal questions)