An immigrаtion judge (IJ) ordered Dele R. Olabanji deported after agreeing with the Immigration and Naturalization Service (INS) that Olabanji married a United States citizen to gain permanent resident immigration status. The Board of Immigration Appeals (BIA) affirmed the IJ’s order after ruling that the evidence established that Olabanji did not timely file a proper petition to remove conditional permanent resident status as required by 8 U.S.C.A. § 1186a(c) (West Supp.1992). We grant Ol-abanji’s petition for review, vacate the deportation order against him, and remand this сase to afford Olabanji his statutory right to cross-examine INS’ witnesses.
I. BACKGROUND
Olabanji is a Nigerian citizen. He entered the United States in 1983 as a nonim-migrant visitor and married Karen D. Raines, a United States citizen, in September 1986. In accord with a July 1988 petition that Raines filed on Olabanji’s behalf, INS changed Olabanji’s immigration status to “conditional permanent resident” as mandated by 8 U.S.C.A. § 1186a(a)(l) (West Supp.1992).
Congress enacted section 1186a in 1986 to deter people from entering into fraudulent marriages to gain residency in the United States. See H.R.Rep. No. 906, 99th Cong., 2d Sess. 6 (1986), reprinted in 1986 U.S.C.C.A.N. 5978. Section 1186a facilitаtes the detection of fraudulent marriages by withholding permanent resident status from immigrants who marry United States citizens unless these couples meet two conditions. First, within the 90 days that precede the second anniversary of the date that the immigrant spouse receivеs conditional permanent resident status, the couple must file a petition to remove the conditional character of the immigrant spouse’s permanent resident status. 8 U.S.C.A. § 1186a(c)(l)(A) (West Supp.1992). This petition must be timely filed, signed by both spouses, and state the following: 1) thе couple entered into the marriage in accord with the law of the place of marriage; 2) no judge has annulled or terminated the marriage; 3) the couple did not marry to procure immigration benefits; 4) each spouse’s address during the two-year pеriod of conditional permanent residence; and 5) each spouse’s place of employment during this period. 8 U.S.C.A. § 1186a(c)(l)(A), (d) (West Supp.1992); 8 C.F.R. § 216.4(a)(1). INS collects this information in its form 1-751.
As the second condition imposed by section 1186a, each couple must apрear for an interview with an INS official after they file their petition. 8 U.S.C.A. § 1186a(c)(l)(B) (West Supp.1992). The INS official interviews the couple to determine the veracity of the statements that they made in their petition. If the official determines that the statements are true, INS changes the immigrant spouse’s status from “conditional permanent resident” to “permanent resident.” If the official determines that the statements are false, INS terminates the immigrant spouse’s conditional permanent resident status; the immigrant spouse may challenge this determination in deportation proceedings. 8 U.S.C.A. § 1186a(c)(3) (West Supp.1992).
*1234 Olabanji timely filed a completed form I-751 in June 1990 that bore his signature and purportedly that of his wife, Raines. The two then timely appeared for their interview with INS officer Linda Seeber on Octobеr 2, 1990. At the conclusion of this interview, Seeber terminated Olabanji’s conditional permanent resident status and prepared an order for Olabanji to show cause why he should not be deported.
At Olabanji’s deportation hearing in August 1991, Seeber testified that she spokе with Raines outside the presence of anyone else on October 2, 1990. Seeber testified that she drafted an affidavit in Raines’ name, based on Raines’ statements during this interview, and had Raines review and sign the affidavit. The IJ admitted Raines’ affidavit over Olabanji’s hearsay objection. The affidavit states that Raines never signed the 1-751 form that Olabanji submitted to INS, that Raines only lived with Olabanji for two months out of their four years of marriage, that she had lived in a separate state from Olabanji for seventeen months and did not hear from him for sixteen оf those months, and that Olabanji promised her a divorce if she would come to the interview and answer questions as he suggested.
Seeber testified that she sent either the original or a copy of Olabanji’s 1-751 form and two of Raines’ signature standards to INS’ forensic documеnt laboratory. INS offered into evidence a letter from forensic document analyst Claude E. Eaton, dated approximately two weeks before the deportation hearing, stating that the person who signed Raines’ name to the 1-751 form was not the same рerson who signed the signature standards. The letter recites Eaton’s willingness to testify to this finding at Ola-banji’s hearing, but INS made no effort to secure Eaton’s testimony.
Olabanji testified that his wife signed the 1-751, that the information in the 1-751 is true, and that he and Raines were trying to resolve their marital difficulties. The IJ found Seeber a credible witness and relied on her testimony, Raines’ affidavit, and the forensic lab report to hold that INS “met its burden of proving by a preponderance of the evidence that the marriage was entered into for purpose of procuring [Ola-banji’s] entry as an immigrant and that he must be deported as a result.” The BIA considered no new evidence on appeal and affirmed the IJ’s deportation order on an alternative ground: “the preponderance of the evidence demonstrаtes that [Olabanji’s] wife did not sign the form 1-751.”
II. DISCUSSION
Olabanji argues that the IJ erred in admitting the statements of his wife and INS’ forensic document analyst as evidence against him without affording him an opportunity to cross-examine them. The rules of evidence, including those that exclude hearsаy, do not govern deportation proceedings.
Bustos-Torres v. I.N.S.,
This court squarely holds that “the use of affidavits from рersons who are not available for cross-examination does not satisfy the constitutional test of fundamental fairness unless the INS first establishes that despite reasonable efforts it was unable to secure the presence of the witness at the hearing.”
Hernandez-Garza v. I.N.S.,
INS оffered no explanation for why it did not present its forensic document analyst for cross-examination at Olabanji’s hearing, even though the analyst had offered to testify. Nor does the record reflect any effort on INS’ part to afford Olabanji an oppоrtunity to cross-examine Raines. Thus, the IJ ordered Olabanji deported after a fundamentally unfair hearing.
INS argues that Olabanji was not prejudiced by the IJ’s admission of Raines’ affidavit and the forensic report because Olabanji cross-examined Seeber. We disagree. Seeber had no independent knowledge of the facts alleged in Raines’ affidavit and the forensic report. At most she could have testified as to the authenticity of these documents and what happened at the interview on October 2, 1990. Olabanji argues that Raines cannot write and did not understand her affidavit, that Seeber procured her affidavit through coercion, that Raines lied to Seeber, or that some combination of these three resulted in her contradictions of his testimony. 2 Olabanji was only able to cross-examine Seeber as to coercion, and he could have done this more effectively had he been allowed to compare her version of what transpired in the October 2, 1990 interview with Raines’ explanation.
This court considered a virtually identical set of facts in
Hernandez-Garza.
There, INS offered the testimony of two of its officials to corroborate the affidavit of an absent witness and the affidavit itself to establish an element of its case. After holding that INS expended inadequate effort to secure the presence of the affiant, and. thus compromised the hеaring’s fundamental fairness, the court stated: “Without [the] affidavit the evidence of record falls far short of the required clear and convinc
*1236
ing level of proof.”
INS next argues that Olabanji knew of his wife’s affidavit over a year before the hearing and could have secured her presence at the hearing if he wantеd to cross-examine her. But
Hernandez-Garza
squarely places the burden of producing such witnesses on INS when it submits affidavit testimony: “INS [must] first establish ] that despite reasonable efforts it was unable to secure the presence of the witness at the hearing.”
III. CONCLUSION
We GRANT Olabanji’s petition for review, VACATE the BIA’s decision and order, and REMAND this case to the BIA for further proceedings consistent with this opinion.
Notes
. We recognize one other exception to the cross-examination right in section 1252(b)(3): people
*1235
may not assert a cross-examination right to prevent the government from establishing uncontested facts. In
Bustos-Torres,
this court affirmed the BIA’s deportation order when the only evidence offered at the deportation hearing was a recorded recollection of an INS official’s interview of Bustos-Torres on an INS form which stated that Bustos-Torres is a citizen of Mexico who entered the United States without inspection.
. Of course, in this case as in Baliza, the fact that, absent severe coercion, a man’s wife would executе an affidavit that could well cause him to be deported indicates serious problems in their relationship. But the law does not condition permanent resident status on a harmonious marriage to a United States citizen. The marriage simply must 1) accord with the law of the statе where it took place, 2) continue in legal force through the time that the immigrant spouse asks for removal of the conditions from the immigrant spouse’s permanent resident status, and 3) not have been entered into for the purpose of immigration. 8 U.S.C.A. § 1186a(d)(l)(A) (West Supр.1992). Nothing in the record suggests that Olabanji’s marriage is illegal, null, or terminated. INS only contends that Raines did not sign the 1-751 and that Olabanji and Raines married for immigration purposes. Olabanji admits that he and Raines presently have a strained relationship, but claims that she signed the 1-751 and that they married for love. The present animosity between Raines and Olabanji does not render Ola- *1236 banji’s claim impossible, and it explains his need to cross-examine Raines.
.
Compare Dallo,