*1 Jоrdan, manner, from D.S.1 As this and that all testimony terical voicemail is gives great Court confidence knowledge Sturgeon independent had no says it that—when this is absolute valid- events, alleged repeated but rather of ity given great weight, and should be it Therefore, daughter told him. what his going give great weight.... is it teachings applicable of we find the Jordan Supervised Release here, Hr’g Revocation Tr. that D.S.’s uncorrob- and conclude In light 76. of the and appar- considerable relayed by orated statements—as Stur- weight gave ent that the district court clearly as to geon—were not so reliable battery during the Kizivat Moslavac’s sen- under Rule make the district court’s error tencing, we cannot conclude that Moslavac 32.1(b)(2)(C)harmless. would have received the same sentence Finally, argues government notwithstanding the Kizivat incident. that the district court’s error was harmless Thus, it was not harmless error for the because Moslavac would have received the district court to obligation overlook its same sentence even if the district court perform an analysis pursuant interests hаd not considered D.S.’s statements. 32.1(b)(2)(C). Rule Specifically, government argues III. Conclusion the district court considered evidence of judgment court district violations, other and that several Grade C and the case is Remanded Vacated, for a any one these other violations of would re-sentencing hearing consistent with this have been sufficient to warrant an adviso opinion.2 ry guidelines range of six to twelve months. dispute
Moslavac does not this conten- However, simply guide-
tion. because the range
lines would have been the same battery without the Kizivat evidence does BOURAS, Petitioner, Mohamed not mean that re- Moslavac v. his current ceived sentence had the evi- HOLDER, Jr., Attorney Eric H. fact, In dence not been introduced. States, General of the United placed emphasis district court considerable Respondent. battery during sentencing, Kizivat noting, No. 14-2179. And that’s credible evidence. So when Appeals, United States Court of utterance, say you it’s excited while Seventh Circuit. caution,
we have to look at those with Argued Jan. 2015. validity it type when has this of Decided March 2015. years experience in han- Court’s dling many, many, many of these cases Dissent Amended Mаrch 2015. having many child witnesses under types these of circumstances voicemail, assign
1. The court has listened to D.S.’s 2. Moslavac asked this court to his re- sentencing hearing agree negli- to a different district court and we with Moslavac that it has value, is, gible any. judge. compelling no reason for corroborative if It We find argu- reassignment, it oral such a and therefore decline to Moslavac characterized ment, recording sobbing. largely a do D.S. so. *2 Bratton, Attorney, Wong E. & As-
Scott sociates, Cleveland, OH, for Petitioner. OIL, Sherman, Attorney, E. At- Jessica Justice, torney, Department of Divi- Civil sion, Immigration Litigation, Washington, DC, Respondent. POSNER, SYKES,
Before HAMILTON, Judges. Circuit HAMILTON, Judge. Circuit Bouras, Petitioner Mohamed a citizen of Algeria, granted status as condition- permanent al resident mar- based riage to a U.S. citizen. That ended divorce before Bouras had ob- permanent residency. tained unconditional placed proceed- He was later removal ings after he failed convince the United Citizenship Immigration States Ser- vices that he had entered the good faith. court, sought
In Bouras discretionary waivеr available to aliens they who can show that entered in faith a failed with a U.S. citizen. Bouras testified at the final removal hear- spouse personal other for a interview. 8 U.S.C. neither his ex-wife nor ing, but (b). (d); 216.4(a)(1), 1186a(c), § § 8 C.F.R. testify at the appeared witness necessary “Petition to Remove Condi- marriage. At the end about (also on Residence” called a Form I- so tions hearing, sought a continuance 751) 90-day can be filed within the ex-wife could as well. that his anniversary period before second request, denied that *3 obtaining permanent residency. conditional “extenuating circum- saying that no 1186a(d)(2); § 8 C.F.R. 8 U.S.C. justified a continuance. stances” 216.4(a)(1). § eligible was not then found discretionary because he had the waiver marriage If the ends before the alien marriage the had been in not established requirements, these the alien has satisfied Immigration The Board of good faith. unconditional status fil- can still obtain decision, including Appeals upheld spouse 1-751 without the and ing the Form Board en- denial of a continuance. The discretionary requesting a waiver. To re- and judge’s explanation added dorsed discretionary ceive the waiver—and with Bour- concluding reasons for its own it, the removal of the conditions on resi- proper- for a continuance was request as’s alien must demonstrate that dence—the petitioned Bouras has for re- ly denied. good in faith was entered challenge view. He does though it later failed. 8 even U.S.C. finding that he failed to and the Board’s 216.5(a)(1)®. 1186a(c)(4)(B); § § 8 C.F.R. argues only He prove his case. early In Bouras and di- Schreiner a continuance so granted have been should For of their vorced. most two-and-a-half could on his behalf. that his ex-wife year marriage, Bouras had continued deny petition. The denial of Bour- We working Chicago in while Schreiner re- request for a continuance as’s last-minute mained in Ohio. For at least six months of of discretion. was not abuse marriage, their Bouras had returned to family. Algeria alone to visit his After the Background I. Factual and Procedural divorce, Bouras submitted a Form 1-751 to States in Bouras entered United Immigration Citizenship United States and non-immigrant visitor for busi- 1997 as requesting discretionary waiver Services 1101(a)(15)(B); § 22 ness. See 8 U.S.C. joint-filing requirement. As evi- 41.31(a). overstayed § He his visa C.F.R. that his to Schreiner was dence was, others, many living like in and thus so faith, good Bouras submitted an affida- In country illegally. September this Schreiner, letters and vit from as well as living Chicago, he while Bouras family from several friends and affidavits Schreiner, a citizen married Jennifer U.S. members, bills, utility photographs of year marrying A after who lived in Ohio. Schreiner, unsigned joint copies with permanent a conditional resi- he became had saying income tax returns that Bouras marriage. 8 dent based on that See unemployed nothing earned dur- been and 1186a(a)(l); § § 216.1. U.S.C. 8 C.F.R. marriage, an e-mail from South- ing their status, confirming pur- Airlines Schreiner’s unconditional a condi- west gain To Chicago establish chase of a ticket from Ohio permanent tional resident must li- Ohio driver’s into the in December that he or she entered title, letter show- most cense and car an undated showing faith. This is made opened had by filing joint petition ing with the that Schreiner often Bank, checking account with Fifth Third spouse appearing citizen with the relating degree from Fifth Third mentation to the to whiсh two bank statements activity in that account. the financial assets and liabilities of the showing minimal parties were combined” and “[documenta- affidavit, In Schreiner said her brief concerning length during tion of time mar- in Columbus she had lived parties cohabited after the mar- which in Chicago. lived She riage while Bouras perma- and after the alien riage obtained he explained that he did so because residence”).) nent Bouras’s status as a Ohio, job every and that could not find a permanent conditional resident was termi- couple of weeks off from month he took a nated, agency and the issued a Notice to job driving a cab to live Appear charging removability. him with said that with her in Columbus. Schreiner 1227(a)(l)(D)(i). § 8See U.S.C. and Bouras had divorced he she February appearance At a before (she she did not wanted children and judge, Bouras conceded previous from a mar- young two children *4 removability but request renewed his for a that riage). changed She said she had the discretionary joint waiver of the filing re- electric service for her home into Bouras’s later, A in quirеment. year February him “belong[ed] name to make feel like he immigration judge the scheduled the they joint in and that home” had a [their] hearing August final removal for 2012. account with Fifth Third Bank checking hearing Notice of that was sent to Bour- that “was not utilized often.” Schreiner lawyer. as’s About three weeks before the many pictures also said there were not date, hearing Bouras tendered as evidence couple usually the because one of them essentially the same materials he had ten- taking pictures, mostly the of her support dered in of his Form 1-751. He children. In the other affidavits and let- naming also submitted a witness list both Bouras, family ters submitted and ex-wife, himself and his Schreiner. friends with described interactions the couple. At beginning the of the final removal hearing, lawyer announced that early In USCIS denied Bouras’s him in Schreiner had sent a fax earlier waiver, request finding for a that he had saying week she would be unable to at- preponderance failed to show fax, In days tend. dated five before evidence he and Schreiner married in hearing, Schreiner said that she had noted, good agency among faith. The oth- “just been notified” of hearing date things, couple er had not lived and was unable to take time off work for together during marriage. (Everyone eight the next six to weeks because she recognizes couples may that married was needed to train a new hire. Bouras’s apart sometimes need to live for a host of request did not a continuance at Holder, See, e.g., Surganova reasons. v. that time but went forward with the hear- (7th Cir.2010). Still, ing, calling testify. Bouras to undocumented brief alien’s citizen, during couple spent U.S. which the Bouras testified that he first met Columbus, Ohio, together kept little or no time their Schreiner while visiting property separate, and finances raises ob- 2005 and year married her a later. He warning signs au- in Chicago vious had worked as a cab driver 1216.5(e)(2) said, § marriage, thorities. See 8 C.F.R. Bouras (stating money evidence relevant to “whether he needed the efforts to qualifying an alien entered into a (by running find work Columbus a hot- in may. faith ... ... dog obtaining include stand and a chauffeur’s li- [docu- cense) According The denied request, unsuccessful. were Bouras, explaining that he does not “continue the routinely he worked joined they’re once and then cases scheduled for a final three weeks two emergency for two weeks. unless there’s an situa- Columbus Schreiner tion” or marriage, spent extenuating he also had “unless there’s some During the though circumstance.” visiting Algeria, of six months total testified never with Schreiner. Bouras judge gave then his oral decision up because he split that he and Schreiner denying petition for a discretion- not. wanted children but she did ary ordering waiver and removed to joint judge Algeria. asked about the tax returns found not credible When submitted, testimony that Bouras’s apart said lived he them to use as evidence in from Schreiner because he could not sent find Schreiner but that he had work Columbus. Because no witnesses proceedings the removal cross-examination, them before. He acknowl- were available for never seen reported judge gave weight little edged that his income was not the affidavits that he and Schrein- that Bouras had submitted. The affidavits the returns. He said undermined, further jointly any property, own but were rea- er did soned, by couple half of the mort- the facts that the did not said he had contributed payments on Schreiner’s house dur- have assets and Bouras was gage marriage. purported asked about the unfamiliar with his own tax re- ing the When *5 Finally, checking judge seldom-used ac- turns. the noted that Bour- couple’s count, long trips Algeria said he not have records as had made several Bouras did marriage, always the showing how often the account had been brief without not judge used. He said that he had withdrawn Schreiner. The did find sham, buy marriage but he found that money equipment from the account to was longer no had Bouras had failed to meet his burden of hotdog for his stand but purchases. proving marriage that he entered into the records of those in good faith.1 testimony, After Bouras finished his upheld a con- The Board requested counsel for the first time testify. judge’s discretionary denials of the waiver tinuance so that Schreiner could inconsistency good-faith govern- where in the second 1. There was no inherent immigration judge’s finding that Bouras had ment found that his first had been proof fraudulеnt). Nor, failed to meet his burden of without quite sensibly, gov- has the making finding an affirmative of a fraudulent step take still further of ernment tried to discretionary marriage. waiv To obtain the prosecution, possible. criminal which is also er, proving good Bouras had the burden of 1325(c); Darif, § United States v. See 8 U.S.C. 1186a(c)(4)(B); § 8 C.F.R. faith. 8 U.S.C. Cir.2006). (7th recognize 701 We 446 F.3d 216.5(a)(1)(h). government § The has not good- that Bouras has offered evidence of a prove step trying taken the further of supported that could have faith convincing evidence that the mar clear and discretionary finding in his favor. There is no riage was in fact fraudulent. See 8 U.S.C. him, paid marry that he Schreiner to evidence 1227(a)(1)(A), 1182(a)(6)(C)(i); Surganova §§ typical which is the hallmark of sham mar- Holder, 901, (7th Cir.2010). 612 F.3d 904 v. riage. immigration system cer- Since the is finding being in Bouras Such a could result overburdened, surprise tainly no in this it’s attaining immigration barred for life from government that the has not tried close case through spouse a citizen or other benefits impose puni- higher burdens to to meet these 1154(c); Ogboluma § relative. See 8 U.S.C. in addition to his tive sanctions on Bouras Cir.2009) (7th Napolitano, 729 ni v. 557 F.3d removal. (аffirming of visa to alien based denial 670 claims, request for a continuance. The Bouras has not raised such
and the agreed judge with the that Bouras Board claims. by a prove preponderance
had failed to decision Bouras chal marriage to Schrein- the evidence that his lenges in this court is the denial of his good er was in faith. The Board also request juris for a continuance. haveWe correctly concluded that the de- Although diction to review that denial. we request nied Bouras’s for a continuance jurisdiction lack to review the discretion because, the Board Bouras had explained, ary good-faith marriage denial of the waiv good required not demonstrated cause as er, review of a procedural related motion § by regulation. See 8 C.F.R. 1003.29. (such continuance) as a motion for a grant refusal to a continuance “only if reasoned, agency’s foreclosed rationale justified, the Board (1) denying day procedural request had waited until the also request continuance, petitioner’s inability final establishes the pre (2) “explained why had not his ex-wife was underlying vail on the merits of his claim.” (7th apparently provided Holder, 868, notice until a few Calma v. 663 F.3d 876 (3) days hearing,” Cir.2011); before the had not Holder, Zambrano-Reyes see v. (7th clarified whether his ex-wife “could pro- Cir.2013); 725 F.3d 749 & n. testimony by phone in-person vide on a Holder, alazar v. Morales 708 F.3d date that would not conflict with her (7th work Cir.2013); Cruz-Mayaho v. Hold schedule.” er, (7th Cir.2012). 576-77 Here, agency’s denying rationale for Analysis II. Bouras’s motion for a continuance—that petition for review does not good he failed to establish cause—does not challenge judge’s conclu- affect eligible whether he is entitled to or sion, Board, affirmed that he failed waiver, discretionary for the so we have to meet his proving burden of jurisdiction petition. over his married Schreiner in faith. Nor does *6 review, however, scope of our challenge ground
Bouras
on
other
is narrow.
review the denial
a
We
of
application
denial of his
for the discretion-
motion for a
only
continuance
for an abuse
ary good-faith marriage waiver. Most
Calma,
878;
of discretion. See
663 F.3d at
challenges to the denial of such a waiver
Holder,
267,
Jonaitiene v.
660
272
F.3d
by
would be
foreclosed
8 U.S.C.
(7th Cir.2011).
standard,
Under this
we
1252(a)(2)(B)(ii),
§
which
our
restricts
re-
uphold
will
the denial of a continuance
Attorney
view of decisions of the
General
“unless it was made without a rational
Secretary
or the
Security
of Homeland
explanation, inexplicably departed from es
discretionary by
that are made
statute.
policies,
tablished
1186a(c)(4)
imper
or rested on an
§
See 8 U.S.C.
(providing that
missible basis such as invidious discrimina
grant of good-faith marriage waiver is
against
tion
a
or
particular
group.”
race
Secretary
within discretion of
of Homeland
(citations
Calma,
in
Holder,
854,
671 (7th Cir.2011); show, Holder, 749, among things, uance must other 751 640 F.3d 1138, Holder, 1141 F.3d procure necessary v. 623 he was “unable to Pawlowska Cir.2010). (7th effort”); despite diligent evidence a Si- brun, (petitioner 18 I. & N. Dec. at 356 seeking a By regulation, party seeking continuance “at least must make a 8 “good must show cause.” continuance showing prepa- reasonable that the lack of Holder, 1003.29; § Mozdzen v. 622 C.F.R. despite diligent good ration occurred (7th Cir.2010). 680, “Good 684 F.3d ready proceed”). faith effort to be regulations, so cause” is not defined by the Board interpreted the standard is continuance, party seeking As on the facts ways depending “in different the burden of showing good Bouras bore presented.” Matter and circumstances of 1003.29; § cause. See 8 C.F.R. Mazarie (BIA 785, 24 I. & N. Dec. 788 Hashmi (1st Holder, gos-Paiz v. 66 2009). sought a continuance is When Cir.2013); Gonzales, Ramchandani v. 434 additional evi purpose presenting (5th Cir.2005). F.3d 338 To show that dence, the re granting the standard for a continuance was an denying abuse minimum, high. Id. At a quest discretion, very Bouras must show at the significantly must show that favor party testimony least Schreiner’s currently available able evidence is not significantly have been favorable to him present effort to it. despite good-faith good-faith that he madе a effort to Holder, 762 672- Adame v. F.3d See has appearance. obtain her He not shown (7th Cir.2014); Dec. I. & N. Hashmi point. either Sibrun, 788; 18 I. & N. Dec. at Matter of 1983). (BIA 354, 356-57 First, Bouras never established that contention is that the principal testimony sig- would have been Schreiner’s immigration judge improperly denied nificantly to him. The evi- favorable completion continuance based “case dence we have of what she would have said He that the “state- goals.” asserts That affidavit does not is her affidavit. show that as a rule he will ments judge’s findings undermine the requests consider continuance when assets, pur- that their couple had no in the of an case is set for trial absence suspect, tax returns were and that ported denied, continuance was emergency.” spent Bouras had most of the insists, not because he lacked in Chicago from either apart Schreiner solely the case was set cause but “because that Schreiner Algeria. Bouras asserts already.” for trial questions “could have answered about the *7 But statement tax returns.” Schreiner’s
We find no abuse discretion. in her affidavit that Bouras had worked as First, the record refutes Bouras’s asser directly in Chicago a cab driver contradicts judge an applied tion that the reported she tax returns which improper legal judge standard. The said unemployed. that he was Bouras does scheduled, hearing is he that once a final explain could this tell us how Schreiner continuances when there is “an grants judge’s to the discrepancy. challenge His extenuating emergency situation” or “some fails because he denial of the continuance significant gap circumstance.” see no We prejudiced by has not shown approach regula and the between Holder, Wang See v. 759 the decision. by requirement applied tion’s cause (7th Cir.2014); Calma, Adame, 663 F.3d 675 by Board and this court. See seeking at contin- F.3d at 878. (petitioner 762 F.3d 673 672
Second, if it responds even we assume Schrein- Bouras that would not have helpful, have been testimony er’s mattered how far in advance Schreiner not shown he made Bouras has the hearing learned of date because she presence. her good-faith effort to ensure would have been unavailablе due to the out, yet Bouras has pointed As the Board staffing shortage. The assertion does not by explain why judge he blind-sided us that persuade the denial was abuse until waiting day hearing—in- might of discretion. Whether Schreiner deed, until hearing—to the end of the re- have appear, person been able either quest a continuance when he knew five otherwise, question is a fact. days hearing before the that his ex-wife said, say, Schreiner did not and has never would not be available. That failure dis- that even with sufficient advance notice tinguishes this case from those in which we adjust she would not have been able to her immigration judge have concluded that an work schedule to accommodate Bouras’s by denying peti- erred a continuance to a testimony. need for her And as the Board seeking tioner to submit additional evi- out, pointed immigration pro- witnesses See, Gonzales, e.g., Gjeci dence. v. 451 ceedings may testify by telephone. See 8 (7th Cir.2006) F.3d 419-24 (concluding 1229a(b)(2); § U.S.C. C.F.R. judge granted should have continu- 1003.25(c). § If Schreiner had been noti- pro petitioner ance to se when his requested fied earlier—or if Bouras had unexpectedly shortly withdrew before mer- hearing—per- accommodations before the hearing kept its documents critical to haps arrangements could have been made case); Gonzales, Boyanivskyy v. (7th Cir.2006) testify by telephone for her to before or (granting F.3d 291-94 petition where—despite for review after work or a break.2 peti- And while tioner’s best efforts to make witnesses perhaps another might available—judge arbitrarily scheduled suggested that option, even at the hearing merits judge date when knew hearing, end of the we see no basis for none of the testify). witnesses could finding that it was an abuse of discretion noted, suggestion not to make the
As the Board Schreiner said in just her fax that she had himself. been told about the date of a scheduled six months Finally, argues Bouras that all of these earlier. That statement undermined denying reasons for his motion for con claim that diligently sought Bouras her tinuance are irrelevant they were
testimony. suggests Schneider’s articulated the Board rather than the phrase “just notified” is cryptic. It’s not noted, however, judge. As precise, but it’s not consistent with a dili- the Board’s properly reasons are consid gent effort Bouras to make sure that where, here, ered agrees the Board hearing. she could attend the Bouras has provides with the decision and its not claimed that he had told about the supplementary own reasoning. See Bar hearing long removal enough before she ma, 751; Pawlowska, 640 F.3d at sent the fax planned for her to have attend. at 1141. *8 Although. may "Emergency Appear
2. have Telephonical- been unaware Motion to testify telephonically, that witnesses could ly.’' granted by That motion was the immi- record shows his was familiar gration judge appeared and counsel at the option. with this Prior to the Master Calen- telephone. via Hearing February dar in he filed an
673 solved, petition party for review because neither could have Accordingly, entered into a same-sex marriage. Nei- DENIED. is party punished
ther was for the fraud. POSNER, Judge, dissenting. Circuit They lucky marry England were to in and States, not in the if may judge United one immigration judge, the Board The displayed by from the attitude authori- my colleaguеs and Immigration Appeals, ties in this case. a failed mar- panel this have confused on majority a fraudulent one. The riage with Bouras, Algerian, working who is was [immigration] that “the opinion declares (he a in in Chicago taxicab driver marriage find that the was a judge did not country entered in a visitor’s visa sham, Bouras had failed but he found that here) right and so had no to still be proving to meet his burden of when, Columbus, on a visit to a friend in in marriage good into the faith.” entered Ohio, he met a divorced woman named sham, it marriage But if the wasn’t a must She near Jennifer Schreiner. lived Co- good have been in For what would faith. manager lumbus and worked as an account marriage that was not a sham Inc., bad-faith at CompManagement, and later as my colleagues be? The Board and lost-time claims examiner for Frank Gates procedural ratified a error also Company. Service Both are Columbus , seriously preju- firms that in the are business of adminis- immigrant. tering compensation diced workers’ insurance September contracts. The two married in immigrant An otherwise unauthorized to old, years 2006. She was 31 he 36. рath in the States has a to remain United citizenship by marrying marriage an American citi- There is no evidence zen, provided marriage job is not was in fraudulent. Jennifer’s Colum- is, job that at the time of the bus more than as a paid fraudulent—that had intended to es- in marriage parties Chicago, taxicab driver and she owned (Bouras together simply tablish a life and were not her home at the time shared a man), marrying purpose obtaining apartment for the U.S. rented with another citizenship immigrant. job young Often had two children. Given situation, spouse paid. family such a case the citizen and her there was no U.S. here; moving Chicago. of that to So suggestion question But there is no of her remotely plausible possibility nor is it a instead Bouras tried to find work Co- lottery the financial of the immi- to obtain a given situation lumbus. He entered there, hotdog stand grant spouse. operate license license, and obtained a but it turned out Often, true, entering it is the motive for He tried to make a be a bad location. marriage a fraudulent is selfless. A fa- go of it but was unable to do so and after involving example, thоugh mous British gave up months and returned to several citizenship, rather than U.S. is W.H. Au- job Chicago. in Co- his taxicab While Mann, marriage to Erika den’s wife, after lumbus he lived with his daughter eldest of Thomas Mann. The sole failure of returning after the purpose was to enable her hotdog venture would return Colum- a Brit- Germany to leave Nazi and become so and live with her every bus month or ish citizen. Both husband and wife were or so. her house for two weeks together. homosexual and never lived “as evi- majority opinion states that was for a cause but never- dence that his to Schreiner theless was fraudulent. It was never dis- *9 faith, couple separated August in in Bouras submitted an affida- good Schreiner, well as letters and from as apparently because Bouras wanted to have vit. family affidavits from several friends and children, Jennifer, having while two chil- members, bills, photographs of him utility previous marriage living dren from her Schreiner, unsigned joint copies with of her, They quar- with did not. also had saying income tax returns Bouras had dog. following year reled over her unemployed nothing been and earned dur- they divorced. ing marriage, their an e-mail from South- I expect marriage wouldn’t a between confirming pur- Airlines Schreiner’s
west Algerian immigrant an a who drives cab Chicago chase of a ticket from Ohio to in (Jen- Chicago in and an American woman li- December Bouras’s Ohio driver’s pho- nifer’s maiden name is “Jones” and title, cense and car an undated letter show- her, children, tographs of and her ing opened joint that Schreiner had a sister—who submitted an affidavit on Bank, checking account with Fifth Third plain they bank Fifth Bouras’s behalf—make two statements from Third showing activity minimal in that European, account.” are northern not north Afri- can, ethnicity) corporate job who has a in Schreiner in submitted affidavit another brightest pros- state have the proceeding, administrative which the ma- pects for success. though And commut- jority opinion summarizes as follows: ing marriages fairly have become com- in “Schreiner said that she had lived Co- mon, marriage such a can place great lumbus while Bouras strain a relationship. The combination Chicago. explained lived in She persons of a between in differ- job did so because he could not find ent socio-economic Ohio, classes and of differ- every in and that month he took a couple job off ent nationalities with the fact that driving weeks from his one Chicago cab in previous to live with her in Colum- has children marriage and bus. Schreiner said that she and Bouras the other does not and that it’s a com- had divorced because he wanted children muting marriage augur doesn’t well for (she young and she did not had two chil- stability. percent marital Ten of second dren from a previous marriage). said She marriages (marriage to Bouras was Jen- changed she had the electric service marriage) nifer’s second end within one for her home into Bouras’s name to make Awo, year. Divorce,” “Marriage and him ‘belonged] feel like he home’ [their] www.avvo.com/legal-guides/ugc/marriage- they and that had a checking account (visited 1, 2015, divorce-statistics Mar. with Fifth Third Bank that “was not uti- in my opin- were other websites cited lized often.’ Schreiner also said there ion). to Jennifer en- were not many pictures couple be- (treating separation dured their as its usually cause one of taking them was termination) for 23 months. pictures, mostly of her children.” The In deciding deport Bouras the immi- only fishy is, element this account as the gration judge Immigra- and the Board of out, majority opinion points that “Schrein- Appeals downright silly tion made some er’s statement her affidavit that Bouras remarks, noting example that Bouras had worked as a cab driver in explain why had failed to Jennifer had not directly joint tax contradicts the returns Chicago. which moved with She had reported she that he was unem- children, family, ployed.” young But there isn’t other a house that doubt owned, Ohio, Chicago. job Bouras worked as a driver in cab she and a *10 was pros- immigration judge The troubled no information on what there is marriage Bouras the fact that job Chicago a in com- obtaining for pects long trips Algeria, made several to to visit job have to her parable Columbus there, family take Jennifer his and didn’t in living is lower Also the cost been. (He able to leave and re- with him. NUMBEO, Chicago. than in Columbus he turn to the United States because had Living Comparison between Chi- “Cоst of permanent become a conditional resident Columbus, OH,” www. cago, IL and marriage.) on the basis of his But there is numbeo.com/cost-of-living/compare_cities. spared that she could have no evidence States&cityl= + jsp?countryl=United job, or from her still- time either from her + Chicago' IL&country2=United + children, As for young trips. to take such + OH. Another States&city2=Columbus' got money plane for the where not couple was that the had silly remark wife, tickets, might it from his have been Not all married “commingled” its assets. family, or even out of his Algerian from his it is doubtful that Bouras couples do—and today one can pocket, own because even assets. any significant has ever had buy round-trip Chicago a ticket between immigration judge couldn’t under- Algiers price and for less than $800. why, hotdog having stand stand may lower when he made the have been the re- through, marriage, fallen he had waited their which ended trips during Anyway years ago. trips amount of time and then started some how the quired by the were financed was not considered in He had ob- driving cab Columbus. judge or the Board of Immi- an license on Febru- tained Ohio driver’s gration Appeals. 16, 2007, waiting peri- the six-month ary so use it as a taxicab od before he could no evidence that had a There is Jennifer in of that August would have ended driver Bouras or marrying financial motive hotdog His stand failed June year. any money from that she ever obtained 17, 2007, an July re-applied he for (her his, higher him income was than but therefore Illinois driver’s license and was expenses that she had child and household to and did surrender his Ohio required didn’t), motive for her he and so a financial (one (and only allowed to have one marry license thus smooth agreeing to time, to way citizenship) driver’s license at a so to eventual U.S. can be state’s his of a up excluded. There is also no evidence give license he had to obtain the Ohio one). phony marriage, for a selfless motive go Illinois Once he decided his ap- Does an marriage. the Auden-Mann money to make some driv- back middle-class Midwest- parently successful July cab in 2007 he could not return ing a marry illegal Algerian immigrant an erner commercial driv- try to obtain Ohio (and non- who drives a taxi another fact license as well. The er’s sorry she feels adjoining) state because open hotdog a license to stand obtained citizen? Not being him for not U.S. it, and obtained an operated in Ohio and there’s no evidence of such an likely—and well, license as is evidence Ohio driver’s I cannot locate the Audenesque motive. to live with his wife. So that he intended marriage to supposing factual basis he returned to Illinois appears, far as fraudulent. been employment prospects his Ohio no infor- poor. turned out to be We have In what did in Bouras was all likelihood grant immigration judge’s or income in cab driv- refusal openings mation on at continuance to enable Jennifer ing in in 2007. Columbus hearing. hearing When the be- she couldn’t make that mat- gan, lawyer- judge, told the tered to the but that the hearing appear couldn’t because of a already Jennifer been scheduled—whenever. *11 in in staffing shortage arbitrary severe her office He did not refer this policy to a statute, keep up Columbus that would her tied rule or I and as far as know eight there for six to weeks. It’s not if аppears just as there’s no basis for it—it to door, rule, and Columbus were next personal display so be his of arbi- (“Oh, that trary she could have taken a few hours off power bureaucratic it is excel- hearing. work to attend the giant’s strength; The two cities lent To have a it but / by road, are apart tyrannous 356 miles and it giant.”) takes To use it like a Not / irrational, six hours to drive from one to the other. is his self-made rule but he course, Flying is faster of given managed compound but to irrationality by frequent delays in current overlooking American air fact there was an plus travel extenuating added travel time from staffing circumstance—the origin airport to at one end trip shortage of the place Jennifer’s of work. All from airport to destination at the other he said about was that if she “could end, overall travel unlikely work, time is to be not come to court because of her significantly by by shorter air than road. then she’s not able to come to court. words, That’s the bottom line.” In other lawyer had received a fax from tough luck—and that might same fatalism days Jennifer five before the in- hearing, say, well have led him to proof faced with forming that she could not attend it on that Jennifer had had a serious illness that the scheduled date. He should have noti- precluded her attendance at the hearing, fied the judge promptly, but that if she “could not come to court be- failed to do so. But delay was not a illness, cause of an then she’s not able to immigration judge’s factor refusal to come to court. That’s the bottom fine.” continuance, grant a concerning which he only: said I am disturbed things number of I the majority opinion, including don’t continue they’re cases once the state- scheduled ment that hearing yet explain why final “Bouras has to unless emergency there’s an he blindsided the judge waiting situation. If until day respondent’s hearing—indeed, wife could not come to until the work, hearing—to court because of her end of the request then she’s a continu- days not able to come to ance when he knew court. That’s the five before the hearing that bottom line. I don’t his ex-wifewould continue cases after not be avail- driver, able.” case is scheduled for trial Bourаs is a taxi not unless a law- yer. represented there’s He was extenuating by lawyer some circumstance. who specializes in immigration law. It was This means that if even Bouras had counsel’s responsibility notify the immi- talked to Jennifer months rather than five gration judge promptly of Jennifer’s inabil- days five promptly earlier and notified the ity to attend hearing. Unfortunately immigration judge that she would not be lawyer, although I said he appear hearing able to for a on August specializes in immigration law, rep- did not judge still would not have resent his client competently. changed hearing; the date of the for he scheduled the for that majority opinion date points out more than six months earlier. It say, said, “Schreiner did not and has never delay in conveying the information that that even with sufficient advance notice cally. adjust been able her We have heard cases which the she would not have schedule to accommodate Bouras’s had obtained work evidence But testimony.” need her when was expert from an witness telephonically. said that? As far as Ashcroft, supposed See, she to have Niam v. e.g., (7th appears, Cir.2004). was never asked whether she she Skype And with or work schedule to accom- adjust could equivalent video-type linkup, some a tele- testimony. for her modate Bouras’s need phonic indistinguish- is almost interview didn’t ask Certainly the from an it is person; able interview face her, her. ask Bouras’s ask face, electronically. albeit mediated kept in Ohio because her office She was notes the majority opinion com- staff it was down to two members and *12 of plaint Immigration the Board of Ap- eight would take her six to weeks to train peals that “had not clarified Bouras wheth- a new hire to fill the third slot. There is provide testimony er his ex-wife by ‘could no that she fore- supposing basis for in-person or a date that phone would and could emergency seen this therefore ” not conflict with her work schedule.’ It lawyer have of notified Bouras’s her future possible is Bouras nor that neither his unavailability immigration before lawyer were can aware that witnesses tes- (Remember judge hearing. scheduled the tify by in an immigration hearing tele- that had to have foreseen it six she’d phone, though lawyer had made immediately months earlier and notified appearance by telephone. an in the case judge, in order to have a immigration In event the didn’t continuance, prayer grant a given that he’d mention the telephonic option; the Board “rule.”) says that Though his he his “rule” it, mentioned that of course was but too if an apply emergency does not there is or Chapter Immigration late. Court of (other) circumstance, extenuating some Manual, www.justice.gov/eoir/vll/ Practice circumstance; extenuating there an was OCIJPracManual/Practice_Manual_review. it’s difficult to understand how the immi- pdf#page=67, forth a (needlessly) sets gration judge managed to that. overlook complicated procedure telephonic for testi- delay sought The length by of the Bour- mony. might expect immigration One an case, lawyer, age may as’s and the judge lawyer to have reminded explain immigration impatience procedure, course he did but of not. inattention, along with the fact that just phone Or he сould have asked for her immigration judges like he most doubtless Immigration number and her. called is But there was simple, overworked. hearings are informal. granting economical alternative to a multi- argued It could be that had Bouras continuance, arrange week and that was to lawyer testify, wanted to his Jennifer testify telephonically. Jennifer to She judge to issue would have asked the work, could done that if need be after subpoena, and not. But when could he did since Chicago’s time is hour behind days he have done that? Until five before judge Columbus’s. he and his the scheduled option, should have considered that as is voluntarily. expected her When appear to the fact that in reviewing obvious from his appear she said she couldn’t Immigration Appeals decision the Board of work, lawyer sought continuance. having chided Bouras for not thought to denied, late it was too arrange various who When was persons submitted at all clear subpoena the bona her. Nor is it affidavits fides of the concerning testify would have person telephoni- issued For subpoena. remember fatalistic was a perpetrated fraud respondent’s declaration that “If the wife order to obtain citizenship. U.S. could court not come to because of her now, Wouldn’t she have known that work, then she’s not able to come to were it true? Wouldn’t the fact that the court.” closed. Case government trying is expel Bouras from the United States for contracting a fraudu- may
He have believed that Bouras’s law- marriage get lent her thinking? Yet she yer had failed to ask that Jennifer be has willing remained subpoenaed because he feared that she genuine, a proposition sup- testify against would him. But ported by her "sister’s affidavit—-and no hardly likely, as it would contradict her suggested has that the sister had a .one party sworn affidavit and also make her a motive to lie. to a marriage, might fraudulent which in- prosecution. vite criminal I am perplexed by the statement in the Incidentally, the only affiants include not majority opinion that “Bouras never estab- Jennifer but also her sister—the sister’s lished that testimony Schreiner’s particularly affidavit is moving, and as it is have been significantly favоrable to him. better written than the briefs of Bouras’s evidence we have of what she *13 I lawyer persuaded am that it was indeed would have said is her affidavit. That written her and reflects her true be- affidavit does not undermine the liefs. There is no suspect reason to that findings that couple the no as- either she or Jennifer would have sets, that purported their tax returns were perjure incentive to themselves in order to suspect, and that spent Bouras had most citizenship obtain for Bouras. What bene- marriage apart of the from Schreiner ei- they possibly fit could testify- derive from ther in Algeria.” or This contra- ing in favor of an illegal immigrant with dicts the earlier opinion the statement they’ve whom had no relationship for “everyone recognizes that married years? Bouras and his wife had separated couples may sometimes need to apart live in August hearing and the was not Still, for a host of reasons. an undocu- August until of 2012. Since we know that marriage mented alien’s brief to a U.S. Bouras could not have bribed Jennifer to citizen, during spent which the couple little marry him, she danger wаs no of giving or no time together kept their proper- testimony that expose being her to ty and separate, finances raises obvious prosecuted for being party to a fraudulent warning, signs immigration authorities” marriage illegal with an immigrant. (citation omitted). I get Why don’t it. Jennifer key would have been a witness. would such a marriage be inconsistent with Because the case that marriage awas acknowledgment couples that “married flimsy with, sham was so begin her may sometimes need to apart live for a testimony put theory could have to host of reasons”—in this case the hus- rest. She had told inability band’s employment, obtain testify wanted to she her ex-husband’s comparable Chicago job, to his in the state behalf, and had she opportunity had an to in which his job wife was tied down her testify and the judge believed Also, and her children? suggestion testimony Bouras would be en route to passage just quoted I couple that the becoming an American citizen. no time may spent together is mani- willingness testify
Her festly on his behalf they spend false. Nor did “little” further undermines the together. inference that the time Nor is it unusual for a couple property joint- married not to own The Immigration Board of Appeals did ly—and anyway there is no basis for think- discuss the judge’s denial of continuance, ing brought any saying that Bouras assets to the that “there is no explanation as to why marriage. [Bouras] waited un- day til the of his scheduled individual hear- I also don’t understand statement ing to advise that his ex-wife was not majority opinion that “there no available to in person,” “why inconsistency inherent in the immigration apparently ex-wife was provided notice judge’s finding that Bouras had failed to until a days before it few proof making meet his burden of without occur,” was scheduled to or “whether she finding affirmative of a fraudulent mar- provide could testimony by in- phone or waiver, To riage. discretionary obtain the person on a date that would not conflict proving good had the burden of schedule,” with her work and further that government faith. The has not taken the “the record does not reflect that the Immi- step trying prove by further clear gration Judge denied requested contin- convincing evidence that solely uаnce out of concern for case com- (citations omitted). was in fact fraudulent” pletion goals----Rather, Immigration faith, But if the in good wasn’t Judge correctly requested denied the con- can have meant that it was fraud- tinuance good for a lack of cause.” And fraudulent, ulent. If it was not it must finally: Bouras “has not explained how his (And have been in faith. odd it how testimony ex-wife’s helped would have place is to the burden of proof on the meet his proving burden of that he entered fraud, person accused of rather than on their good faith.” the accuser. if I person It’s as could sue a opinion garble. Board’s is a fraud, present fraud, no yet evidence of potential comment about the value or lack *14 it persuade would be his burden to testimony thereof of Jennifer’s makes no fraud.) or jury guilty that he was not prepared testify sense. She was to behalf, they’re and since divorced immigration judge The should have ex- impecunious, and he she presumably would plored possibility of a telephonic sub- abe truthful witness and posi- one well continuance, stitute for а but his failure to tioned post why to understand at least ex do so isn’t critical. What is critical is his he had married her. Her answer to one unexplained recognize failure to the exis- question that the might circumstance, tence of an extenuating expected put have been to to her—“would though it staring was him in the face. you still married him if you be to two had Had he might noticed it he have found agreed having getting about children and some basis for deeming insufficiently it dog?”—might rid of the have resolved the extenuating, or decided that he should way case one or the other. earlier, have been told days about it five when Bouras’s learned it. about opinion quoted Earlier this I the pas- Impatient unsympathetic, and might he sage in majority which the states that think it apt punishment for lawyer’s “Bouras never established that Schreiner’s mistake to lawyer’s order the client de- testimony significantly would have been ported. give He failed to minimally even a only favorable to him. The evidence we reasoned basis denying requested for have of what she would have said is her continuance, and overlоoked the possibility That affidavit. affidavit does not under- telephonic of a alternative. judge’s findings couple mine the that the deny a continuance assets, policy that his is purported that their
had no for after he has scheduled that Bouras asked suspect, and tax returns were (even six months earli- if it was scheduled marriage apart from most of the spent er), emergency or an unless there is an Algeria.” Schreiner either certain- circumstances—there extenuating have under- testimony might well Her latter, com- but, ignored which he important ly was the more points, those mined rationality? determinative), (as pletely. it Where was not points those are testimony them if her would have offset Holder, in Barma v. approach its Unlike persuaded have (7th Cir.2011), expected, and Bouras had judge that she that it suggest in this case didn’t Board tried, together. to make a life and ground deny- for substituting was its own immigration judge’s testify, ing relief for give her a chance He didn’t approving it ground; rather arbitrary no-continuance because of his states that majority opinion rule, thought ground. her a critical thоugh even he properly are consid- witness, critical factor in all “the Board’s reasons saying: “the where, here, agrees the Board case, I, I, I ered troubling, find this what obtained, its judge’s provides an with the decision and [having] not respondent’s reasoning.” But I supplementary own ex-spouse, [also from his but affidavit father, reasoning ex- stating supplementary don’t see her sister and her from] called—justly, I cept for the comment that respondent was married to his (that “has not together I think—senseless daughter and that he visited them testimony how his ex-wife’s explained them. He knew that his and he saw his burden of respondent. helped would have meet daughter was married to the Plus, But that he entered their proving an affidavit from a friend. faith”). not, not, they’re they’re they’re here to know, ground denying I relief was testify basically, you sole scheduled, a any- hearing having been weight the affidavits less give to allow his ex-wife to sorry respondent feel for the continuance one could in the absence of an granted The motive to sub- would not be and write affidavit. may extenuating By basing circumstance. de- mit an affidavit оn someone’s behalf immigra- ground, nial of relief on that help him out because he needs the be there was no ex- judge implied But I tion help immigration purposes. *15 case, in this but he tenuating the issue of circumstance really am forced to decide so, inability to respondent say has submit- did not and Jennifer’s whether or not the an Chicago for several weeks was that he intended to travel to ted sufficient evidence easily extenuating circumstance that could together spouse a life with his when make by asking her to have been accommodated they married. And the real evidence immigration testify telephonically. I see is the affidavit.” cause,” as the judge “good articulated no gave But he the weight—fine. So less had, for erroneously thought he Board weight, despite affidavits no the weakness from terminating hearing the case without majori- government’s of the evidence. The ra- produced the Board no Jennifer. And ty opinion states that the denial of con- “ to the supplementation tional upheld tinuance must be ‘unless it was ” reasoning. judge’s defective explanation.’ made without a rational true, has turned out to be made is immigration judge’s denial was What Bouras—though it should not fatal for explanation. a rational He said without lawyer have been—is that his was lacklus- ner in which partner either elects to notify time, ter. He didn’t spend his or her in the guise of judge promptly that specifying Jennifer requirements of a bona appear. He did not suggest telephonic fide marriage would raise serious consti- alternative to her at appearing tutional questions. Aliens cannot be re- person. try subpoena He did not to quired to have more conventional or her. There immigra- are some first-rate more successful marriages than citizens. lawyers, especially tion at law schools that Conduct of parties after marriage is programs law, have clinical in immigration relevant only to the- extent that it bears but on the whole the bar that defends upon subjective their state of mind at immigrants in deportation proceedings they the time were married. Evidence (the bar to which lawyer Bouras’s in the parties separated after their proceeding in the Immigration Court be- wedding is relevant in ascertaining longs, see “DiFranco Law—Practice they Areas whether intended to establish a life Focus,” www.difrancolaw.com), of together is they when exchanged marriage weak—inevitably, because most such immi- vows. But evidence separation, grants are impecunious and there standing alone, is no cannot support a finding government funding lawyers. for their that a marriage was not bona fide when This will not judges trouble so enamored it was entered.... Couples separate, adversary system in its pristine temporarily and permanently, for all purity they do not blanch when an kinds of reasons that have nothing to do imbalance the skills of the adversaries’ with preconceived intent not to lawyers produces unjust lives, result. It’s share their military such as calls to Bouras, not as if deported Algeria, service, needs, to will employment educational position be in a illness, sue his American opportunities, poverty, and do- malpractice. mestic difficulties. Judges just are not umpires. Nor are grant petition We shоuld and vacate judicial Immigration officers of the the removal order. To refuse to do so and the Immigration Court Board of Ap- ratify a prime example of administrative peals. Judicial deplored activism is but incompetence not immigra- limited judicial there is such a thing as excessive tion and the of Immigration Board passivity, which has present been at all Appeals, for I cannot understand the ea- adjudication levels of of Bouras’s ease. gerness of Department of Homeland Security to challenge legitimacy to Jennifer Schreiner on such flimsy evi- failed, but so far as the record shows was dence—an immigrant who has been in the bona fide. should heeding We be the anal- years, United States for illegally almost 20 ysis of failed versus fraudulent (together be sure with millions of other INS, (9th Bark v. 1201-02 immigrants), yet engaging without in other Cir.1975) (citations omitted): *16 activity unlawful failing or to earn a mod- concept of establishing a life as living by est honest labor. partners marital contains no federal dic- tate about the part- kind of life that the may Any
ners choose to attempt lead. regulate styles, their life pre- such as
scribing they the amount of time must
spend together, designating the man-