Petitioner Muhammad Aslam, a native and citizen of Pakistan, petitions us pro se to review the final order of removal issued against him entered by the Board of Immigration Appeals (“BIA”) on February 11, *113 2005. The BIA summarily affirmed, without an opinion, the October 28, 2003 order of the Immigration Judge (“IJ”) denying Aslam’s application for relief in the form of an adjustment of status to that of a lawful permanent resident, pursuant to section 235 of the Immigration and Nationality Act of 1952, (“INA”), as amended, 8 U.S.C. § 1255. The IJ determined that Aslam is ineligible to adjust his status because he is inadmissible to the United States under INA section 212(a)(6)(C)(I), 8 U.S.C. § 1182(a)(6)(C)(I).
Aslam, a native and citizen of Pakistan, entered the United States without inspection at an unknown date. In both 1997 and 2000, Aslam filed applications to adjust his status based on two different marriages to United States citizens. Both applications were denied: his 1997 application was denied because it was deemed abandoned, and his 2000 application was denied for fraud. In February 2002, Aslam was issued a notice to appear in immigration court in Ohio based on his illegal entry into the United States; the venue was subsequently changed to New York. In June 2002, he applied for an employment immigrant visa, and in November 2002, he applied to adjust his status, based on his visa application, as relief from removal. In December 2002, the notice to appear was amended to charge Aslam with removability based on his attempts to fraudulently procure a visa through his two prior marriage petitions. Aslam denied those charges.
On January 29, 2003, the Government filed a motion to introduce video conference testimony of its key witnesses, in order to prove its fraud allegations. Specifically the Government sought to present videoconference testimony of Aslam’s two ex-wives and the Special Agent who had previously conducted Aslam’s adjustment of status interviews. At that time, Aslam opposed the video testimony arguing that it violated his Fifth Amendment rights to due process. At the merits hearing held on April 30, 2003, the IJ granted the Government’s request for videoconferencing testimony, but also told Aslam that he would “entertain a motion to transfer venue to Cleveland[, Ohio] so the witnesses can appear in person.” Aslam’s attorney chose not to file such a motion and a merits hearing took place in New York, with the videoconference testimony of a key witness.
At the merits hearing, Aslam’s first ex-wife, Justine Netola, testified via videocon-ference that she had been paid to marry Aslam so that he could obtain legal status in the United States and that their marriage was fraudulent. When asked if she saw Aslam in Court she stated “Yes.” When asked what he was wearing she stated, “I can’t, he’s got something dark on, I can’t really see him all that well.... No, he just raised his hand. He’s sitting next to the woman in the purple shirt.” Thereafter the Judge stated, “[l]et the [record] reflect respondent is identified, the witness has identified the respondent.”
Netola testified that she had been paid $1,500 to marry Aslam and had been promised that she would be paid additional money, some of which she later received, for each month she remained married to Aslam. She further testified that this marriage was never consummated; that, while they had a joint bank account, and filed joint taxes together one year, they never actually lived together as husband and wife. Netola testified that she knew it was illegal to engage in marriage fraud. No other witnesses testified at the hearing.
On appeal, petitioner makes three arguments. First, that the use of videoconferencing testimony of a witness at his hearing before the immigration judge violated *114 his rights under the due process clause. Second, that the Government failed to meet its burden of proof by failing to establish that petitioner engaged in fraudulent marriage. Third, that the BIA abused its discretionary powers by affirming the I J’s order without an opinion.
Standard and Scope of Review
When the BIA summarily affirms the decision of the IJ without issuing an opinion,
see 8
C.F.R. § 1003. 1(e)(4), we review the IJ’s decision as the final agency determination.
See, e.g., Twum v. INS,
Due Process Violation
Petitioner argues that the use of videoconferencing testimony of a witness at his hearing before the IJ violated his due process rights. It is important to note that the Federal Rules of Evidence do not apply in removal proceedings; rather, “[ejvidence is admissible provided that it does not violate the alien’s right to due process of law.”
Zhen Nan Lin v. United States DOJ
Congress explicitly granted IJs statutory authority to conduct removal proceedings via video conference. 8 U.S.C. § 1229a(b)(2)(A)(iii). Because an IJ has statutory authority to conduct entire proceedings via videoconference, it follows, and we so hold, that an IJ also has the authority to allow witnesses to testify at immigration proceedings via videocon-ference. However, such testimony, while statutorily permitted, must nevertheless still accord with the constitutional requirements for due process under
Mathews v. Eldridge:
“due process requires, at a minimum, that the INS adopt procedures to ensure that asylum petitioners are accorded an opportunity to be heard at a meaningful time and in a meaningful manner, i.e., that they receive a full and fair hearing on their claims.”
Rusu v. INS,
[R]egardless of how rapidly technological improvements, such as video conferencing, may advance, the Government remains obliged to ensure that asylum petitioners are accorded a meaningful opportunity to be heard before their cases are determined. In this regard, *115 the procedures utilized in [petitioner]^ hearing could have resulted in the denial of a full and fair hearing on his claim. The utilization of video conferencing, although enhancing the efficient conduct of the judicial and administrative process, also has the potential of creating certain problems in adjudicative proceedings ... .virtual reality is rarely a substitute for actual presence and ... even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it. More specifically, video conferencing may render it difficult for a factfinder in adjudicative proceedings to make credibility determinations and to gauge demeanor.
Rusu,
Here, however, petitioner’s due process rights were not violated by the admission of videoconference testimony of a witness at his immigration hearing. In this case, it was not petitioner that was being interviewed via videoconference, but rather a key witness: his ex-wife who testified that she engaged in a fraudulent marriage with the petitioner. The admission of such evidence was clearly probative, and there is no evidence in the record that its use was not fundamentally fair.
See Zhen Nan Lin,
We therefore find that the petitioner’s due process rights were not violated at the immigration hearing when a key witness was permitted to provide testimony via videoconference.
Adjustment of Status Claim
We have jurisdiction to review Aslam’s claim regarding his eligibility to adjust his status, because he questions the Agency’s conclusions regarding his statutory eligibility,
Xiao Ji Chen v. U.S. Dep’t of Justice,
Here, Aslam admitted that he had entered the United States without inspection, thereby rendering him inadmissible on that ground, and in October 2003, As-lam conceded that he was removable. The Government also argued before the IJ that Aslam’s first marriage was fraudulent. To prove its assertion, the Government introduced the report of Special Agent Matthew J. Hamulak, who had previously interviewed Aslam’s first two wives and obtained statements by which they withdrew their petitions for adjustment of status on Aslam’s behalf. Aslam now argues that the Agent Hamulak should have been forced to testify at the hearing before the IJ so that Aslam’s counsel could cross-examine him regarding alleged inconsistencies in his report. Aslam also argues that the report was inadmissible hearsay. At the hearing before the IJ, however, Aslam’s counsel objected when the IJ asked the Government whether it intended to call Agent Hamulak to testify. Counsel stated, “I’m going to object to the testimony of the special agent considering that you have [Aslam’s first ex-wife] Ms. Netola here and I don’t think it’s going to add to the testimony aside from statements made by [Aslam’s second ex-wife] Ms. Michelle Aslam in which she also indicated the marriage as not fraudulent.” Further, Aslam did not object to the admission of the Agent’s report into evidence at the hearing. Because Aslam objected to the Government’s introduction of Special Agent Hamulak’s live testimony and failed to object to the admission of the agent’s report, neither the IJ’s failure to compel the Special Agent’s testimony nor the introduction of the report into evidence violated Aslam’s due process rights.
The Government also introduced the testimony of Aslam’s first wife, Neto-la—who claimed that she was paid money to marry Aslam and that their marriage was fraudulent. Aslam argues that Neto-la’s testimony was not credible and, thus, that the record does not support the IJ’s conclusion that their marriage was fraudulent. However, the IJ’s determination that Netola was credible and that she and Aslam entered into a fraudulent marriage are findings of fact that were supported by substantial evidence in the record.
See Zhou Yun Zhang,
Once the Government met its burden of demonstrating that Aslam was removable, Aslam was required to demonstrate his eligibility for the relief he sought, i.e. adjustment of status based on his employment-based petition. However, in order to do so, he first had to show that he is admissible to the United States. See 8 U.S.C. § 1255(a) (stating that an applicant can be granted discretionary adjustment of status if, inter alia, “the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence”). Unfortunately for As-lam, a person is inadmissible if he, by *117 fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or admission into the United States. See INA § 212(a)(6)(C), 8 U.S.C. § 1182(a)(6)(C). At the hearing before the IJ, Aslam did not testify that his first marriage to Netola was genuine, nor did he present any evidence refuting Neto-la’s testimony, nor did he present any additional evidence to support a finding that his first marriage was not fraudulent. Thus, we find that the IJ did not err in concluding that the Government met its burden of showing that Aslam is removable from the United States. We also find that the IJ did not err in determining that Aslam could not demonstrate that he was eligible to adjust his status. We therefore deny his request for review on both matters.
The BIA’s Summary Affirmance
Finally, there is no merit to petitioner’s argument that the BIA abused its discretion by summarily affirming the IJ’s opinion. We have explained that “summary affirmance by the BIA is permissible when the immigration judge’s decision below contains sufficient reasoning and evidence to permit proper judicial review.”
Yu Sheng Zhang v. United States DOJ,
Conclusion
For the foregoing reasons, we deny the petition for review.