840 F.3d 912
7th Cir.2016Background
- Vidinski, a Bulgarian national, entered the U.S. as a visitor in 1998, overstayed, married U.S. citizen Constance Literski in 2002, and applied for adjustment of status in 2005.
- Literski later told ICE the marriage was a sham arranged through a marriage-fraud ring; she gave a sworn statement and was interviewed by an ICE agent whose report was introduced at the removal hearing.
- The immigration judge found marriage fraud by clear and convincing evidence (relying on Literski’s sworn statement as hearsay corroborated by documentary evidence); Vidinski refused to testify or present rebuttal evidence.
- The Board of Immigration Appeals (BIA) adopted the IJ’s decision, denied cancellation of removal (hardship) and later denied Vidinski’s motion to reopen based on alleged ineffective assistance of counsel on appeal to the BIA.
- Vidinski petitioned for judicial review, arguing (1) insufficient evidence of fraud, (2) denial of statutory/constitutional right to cross-examine adverse witnesses, and (3) prejudice from ineffective assistance on his initial BIA appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over denial of cancellation of removal for "exceptional and extremely unusual hardship" | Vidinski seeks review of BIA denial of hardship relief | Government: discretionary denial not reviewable absent constitutional or legal question | Dismissed for lack of jurisdiction (discretionary hardship decision not reviewable) |
| Sufficiency of proof of marriage fraud (clear and convincing standard) | Literski’s absence and hearsay statements mean gov't failed to meet burden | Government: agent’s interview, Literski’s sworn statement, and corroborating documents suffice | Evidence was sufficient; BIA’s factual finding affirmed (substantial evidence supports fraud finding) |
| Right to confrontation / cross-examination (failure to produce Literski at hearing) | Vidinski: entitled to cross-examine adverse witnesses; subpoenas were ineffective and gov't should have produced witness | Government: subpoenas issued; no party requested enforcement or continuance; hearsay had indicia of reliability | No violation: IJ not required to enforce subpoena sua sponte; counsel elected not to pursue enforcement; use of reliable hearsay was fundamentally fair |
| Motion to reopen for ineffective assistance of counsel on BIA appeal | Vidinski: inadequate briefing on appeal to BIA prejudiced him; argues presumption of prejudice | Government: BIA found Lozada requirements met but no prejudice shown because underlying record supported fraud finding and Vidinski did not raise counsel incompetence earlier | Denied: BIA did not abuse discretion; any presumption of prejudice rebutted by record and lack of prejudice showing |
Key Cases Cited
- Woodby v. INS, 385 U.S. 276 (U.S. 1966) (government burden in deportation proceedings)
- Surganova v. Holder, 612 F.3d 901 (7th Cir. 2010) (standard for proving marriage fraud)
- Ogbolumani v. Napolitano, 557 F.3d 729 (7th Cir. 2009) (permitting hearsay summaries of witness interviews in marriage-fraud cases when reliable)
- Duad v. Holder, 556 F.3d 592 (7th Cir. 2009) (allowing reliable hearsay in immigration proceedings)
- Pouhova v. Holder, 726 F.3d 1007 (7th Cir. 2013) (hearsay unfair where reliability is seriously undermined)
- Karroumeh v. Lynch, 820 F.3d 890 (7th Cir. 2016) (remand required where subpoena not properly issued and hearsay reliability doubtful)
- Malave v. Holder, 610 F.3d 483 (7th Cir. 2010) (remand when IJ refused alien’s request for subpoena enforcement)
- Patel v. Holder, 747 F.3d 493 (7th Cir. 2014) (standard of review for BIA denial of motion to reopen)
- Roe v. Flores-Ortega, 528 U.S. 470 (U.S. 2000) (presumption of prejudice where counsel fails to file an appeal)