                             In the

    United States Court of Appeals
               For the Seventh Circuit
No. 15-2198

MOHSEN KARROUMEH,
                                                      Petitioner,

                               v.


LORETTA E. LYNCH, Attorney General
of the United States,
                                                     Respondent.

                Petition for Review of an Order of
               the Board of Immigration Appeals.
                           A076-296-363


    ARGUED JANUARY 20, 2016 — DECIDED APRIL 29, 2016


   Before WOOD, Chief Judge, and MANION and ROVNER, Circuit
Judges.

    ROVNER, Circuit Judge. Mohsen Karroumeh petitions for
review of a final order of removal issued by the Board of
Immigration Appeals (“BIA” or “Board”). The Board deter-
mined that Karroumeh was removable because he entered into
a sham marriage for immigration purposes. We conclude that
2                                                   No. 15-2198

Karroumeh is entitled to a new hearing before an immigration
judge (“IJ”) because he was prejudiced by his inability to cross-
examine a key government witness whose evidence was
presented through a written statement. We grant the petition
and remand for a new hearing.
                                 I.
    Karroumeh is a native and citizen of Jordan who was
admitted to the United States as a visitor on May 2, 1996. At
that time, he was married to a Jordanian woman with whom
he had two children. In October 1996, he obtained a proxy
divorce from his wife, and in February 1997, he married Terri
Wright, a United States citizen who also had two children. A
few months later, Wright filed a Form I-130, Petition for Alien
Relative (“Petition”), on Karroumeh’s behalf, in conjunction
with a Form I-485, Application to Register Permanent Resi-
dence or Adjust Status (“Application”). The Petition and
Application were conditionally granted in June 1998. See
8 U.S.C. § 1186a. In July 2000, Karroumeh and Wright timely
filed a Form I-751, a joint petition to remove the conditions
from Karroumeh’s lawful permanent resident status. See
8 U.S.C. § 1186a(c)(1)(A). United States Citizenship & Immigra-
tion Services (“USCIS”) granted the joint petition in January
2001, and the conditions were removed from Karroumeh’s
lawful permanent resident status. See 8 U.S.C. § 1186a(c)(3)(B).
    Several months later, in May 2001, Karroumeh filed his first
application for naturalization. During a February 2002 natural-
ization interview with USCIS, when questioned about the
absence of his U.S. citizen wife, Karroumeh revealed that he
and Wright were in the process of obtaining a divorce. A week
No. 15-2198                                                  3

later, Karroumeh withdrew his application. In March 2002, his
divorce was finalized. In April 2003 and September 2006,
Karroumeh filed two more applications for naturalization. In
2008, USCIS began to investigate Karroumeh for immigration
fraud.
    In the course of that investigation, USCIS officer Leslie
Alfred obtained a sworn statement from Wright in December
2008, more than six years after her divorce from Karroumeh.
Although Alfred questioned Wright extensively about her
living situation during and after the marriage, her ambiguous
and sometimes contradictory responses raised as many
questions as they answered. In the interview, Wright revealed
that she had moved to Columbia, Mississippi in November
1997, approximately nine months after she married
Karroumeh, when her mother was jailed. But she also admitted
that she registered her car in Mississippi in August 1997, and
later said that she left for Mississippi in May 1997, which
would have been only three months after she married
Karroumeh. She said that she stayed in Mississippi for a year,
paying the rent at the Columbia address until her mother was
released from jail. She said both that she returned to the
Chicago area in November 1998, and also that she moved to
Hinsdale, Illinois in 2000, after moving back from Mississippi.
She said that she separated from Karroumeh and began living
apart from him in late 2000, and also that they “never lived
together.” R. at 516. She later said that they “spent time
together as a family, but we never lived together as a husband
and wife.” R. at 517.
    At the time of the December 2008 interview, Wright was
living on South Springfield in Chicago, and had been living
4                                                        No. 15-2198

there nearly two years. Prior to that, she resided on West
Cortez in Chicago for three years. When asked about register-
ing her car during her marriage at addresses on Racine in
Chicago, and on Clarendon Hills Road in Willowbrook, she
replied that she only used the apartment in Clarendon Hills.1
When asked directly if she and her children ever lived with
Karroumeh, she replied that, when she was living in Hinsdale,
“for 3 or 4 days out of the week he would come over. We were
never on each other’s lease.” R. at 514. She also said that she
“stayed with him a few nights at Worth,” a suburb of Chicago
where Karroumeh leased an apartment. R. at 514. When told
that records showed she never lived at Karroumeh’s Worth
address, Wright cryptically replied, “You are correct lease
wise.” R. at 515. When Alfred asked why her signature
appeared on two of Karroumeh’s Worth leases, she replied,
“This is because he gave them to me. He already signed the
leases, I just signed it. I knew he was doing some bull crap, so
I just got my own place.” R. at 515.
    Alfred also asked Wright if she ever thought that
Karroumeh married her just to get his green card, and she
replied, “I felt he didn’t want to live with me.” R. at 517. She
recalled signing a lease with Karroumeh before she left for
Mississippi in May 1997, and said that he told her they could
move into a two bedroom apartment, but that he never
followed through in getting the larger apartment, causing her
to feel that he did not wish to live with her. She filed one joint
tax return with him, in 1999, and received a $2000 refund. She


1
 Clarendon Hills is both the name of a road in Willowbrook, a suburb of
Chicago, and the name of a separate suburb, just north of Willowbrook.
No. 15-2198                                                   5

did not know why her name and social security number were
on Karroumeh’s taxes for 1998 and 2000. Over the course of the
marriage, Karroumeh gave Wright a little more than $4000,
including $200 on their wedding day, $500 for clothing for her
children, and the tax refund. As a result of the investigation,
USCIS denied Karroumeh’s 2006 application for naturalization.
    In June 2012, Karroumeh filed a “Petition for a Hearing on
Naturalization Application” in the district court in the North-
ern District of Illinois. In October 2012, the Department of
Homeland Security (“DHS”) commenced removal proceed-
ings, serving Karroumeh with a Notice to Appear alleging that
he had procured his lawful permanent resident status through
fraud. See 8 U.S.C. § 1227(a)(1)(A). In particular, DHS asserted
that he had married a United States citizen solely to obtain an
immigration benefit. Because Karroumeh had filed an action in
the district court, DHS sought expedited proceedings in the
parallel removal action. Karroumeh denied the charges at his
first appearance before the IJ on February 13, 2013. The IJ
ordered DHS to file its evidence supporting the charge by May
13, 2013, and set a merits hearing for August 6, 2013. In April
2013, for reasons not apparent from the record, the IJ resched-
uled the merits hearing to September 5, 2013. DHS submitted
its evidence in support of the charge and indicated that it
intended to present five witnesses at the hearing: Wright, her
two children, Karroumeh’s property manager Lance Olson,
and Leslie Alfred, the USCIS investigator who had taken the
sworn statement from Wright. DHS also filed a motion with
the IJ requesting issuance of a subpoena requiring Wright and
her children to appear at the September 5, 2013 hearing. The IJ
6                                                   No. 15-2198

granted the motion for a subpoena but there is no evidence in
the record that the subpoena was served on Wright.
    The IJ moved the merits hearing one last time, to January
10, 2014. But no new subpoena was issued for Wright requiring
her appearance on the new date. And she did not in fact
appear on that date. On the day of the hearing, when the IJ
asked government counsel whether Wright was available to
testify, counsel replied, “None of those that have been subpoe-
naed have appeared for today’s hearing, Your Honor.” R. at
101. DHS then presented the testimony of Leslie Alfred. Alfred
authenticated sworn statements from Wright and from Lance
Olson, and then testified regarding his investigation into the
legitimacy of the marriage. In particular, Alfred cited as
suspicious the short amount of time between Karroumeh’s
divorce from his Jordanian wife and his marriage to Wright,
Wright’s statements that the couple never lived together, the
money that Karroumeh gave Wright during the marriage,
discrepancies regarding the filing of joint tax returns, Wright’s
hesitation when asked if she and Karroumeh had consum-
mated the marriage, and differences between Wright’s testi-
mony regarding the date of separation and the date noted on
the divorce decree, among other things. Karroumeh testified
both as an adverse witness in the DHS case-in-chief and on his
own behalf.
   Although Karroumeh objected to the admission of Wright’s
sworn statement, the IJ concluded during the hearing that the
document was admissible:
     Now the Government is contending that your wife’s
     statement supports their conclusion that your
No. 15-2198                                                   7

     marriage was a sham. Mr. Adkinson [Karroumeh’s
     lawyer] has argued that that’s not true and that I
     should not even consider your wife’s statement.
     However, the Government has made an attempt to
     have your wife come to court. They subpoenaed her
     to come to court and she has not appeared. They
     could not locate her and she could not come to
     court. A third-party affidavit submitted by an out-
     of-court declarant is admissible in evidence where
     the Government has made an attempt to have that
     witness present. You also said that you didn’t even
     know where your wife was and you were not able to
     have her come to court. So the Government does
     have the right to use your wife’s statement against
     you.
R. at 201–02. The IJ again ruled that Wright’s sworn statement
was admissible in the final oral ruling:
     The respondent’s attorney objected to the Court’s
     reliance on the affidavit of Terri Wright taken by the
     DHS [sic] Officer Leslie Alfred. It is true that evi-
     dence is only admissible if it is relevant and funda-
     mentally fair to both sides. Here, however, I find
     that the admission of Terri Wright’s affidavit in the
     course of USCIS’ investigation was not fundamen-
     tally unfair to the respondent. The Government
     attorney made every effort to locate and bring Terri
     Wright to court to testify. They had asked the
     respondent for her address and asked for help in
     locating her. They asked the Court for the issuance
     of a subpoena, which was granted. Where the
8                                                     No. 15-2198

     Government has made every effort to present an
     adverse witness, the admission of a third party’s
     statement is not fundamentally unfair.
R. at 81–82.
    The IJ ultimately concluded that the government met its
burden of demonstrating that Karroumeh’s marriage to Wright
was not bona fide. In both his oral and written rulings, the IJ
emphasized the importance of Wright’s sworn statement in
reaching that conclusion. In the final oral decision, the IJ relied
on Wright’s statement to demonstrate (1) that there was no
period of time where Wright and Karroumeh lived together at
the same address; (2) that Wright was living in Mississippi
when she obtained an Illinois driver’s license; (3) that Wright
never lived at Karroumeh’s Worth apartment; (4) that Wright
never signed a lease with Karroumeh but that Karroumeh had
manufactured evidence by having her sign leases after the fact;
(5) that the date of separation in the divorce decree was false;
and (6) that Karroumeh gave Wright money on multiple
occasions, including in exchange for filing a joint tax return, as
payments for entering into the marriage. In determining what
weight should be accorded the Government’s evidence and
whether the government had met its burden of proving by
clear and convincing evidence that the marriage was a sham,
the IJ stated:
     First, the statement of Terri Wright is extremely
     damaging to the respondent. While she did not
     admit that she was paid money solely to enter into
     the marriage, everything about the statement sug-
     gests that the respondent fabricated evidence to
No. 15-2198                                                   9

     contend that his marriage was a true marriage and
     that he was residing together with his spouse. The
     statement from Terri Wright supports the conclusion
     that the marriage was not entered into in good faith.
R. at 82. The IJ also cited the testimony of Alfred, which, of
course, was based in part on his interview with Wright. In
summing up the evidence, the IJ cited the quick succession of
Karroumeh’s arrival in the United States, proxy divorce and
marriage to Wright; the evidence that the couple never lived
together; and Karroumeh’s manufacture of evidence such as
Wright’s Illinois driver’s license, the leases, and the 1999 tax
return. The IJ ordered that Karroumeh’s lawful permanent
resident status be terminated and that he be granted voluntary
departure.
    On appeal, the BIA affirmed the IJ’s determination that
Karroumeh was removable because he entered into a sham
marriage for immigration purposes. Addressing Karroumeh’s
argument that the IJ failed to properly enforce the subpoena
issued to Wright, the BIA found that only the party seeking the
subpoena could claim the benefits of the enforcement provi-
sion found at 8 C.F.R. § 1003.35(b)(6). The BIA also rejected
Karroumeh’s claim that Wright’s sworn statement should not
have been allowed as evidence because Wright was not present
at the hearing for cross-examination. Because the government
made reasonable efforts to procure Wright’s presence and
because Karroumeh had an opportunity to cross-examine
Alfred, the agent who took Wright’s statement, the BIA
concluded that the statement was properly admitted as
evidence. The BIA found that the government adequately
established removability, and ordered Karroumeh’s removal
10                                                    No. 15-2198

to Jordan. Karroumeh petitions this court for review of that
order.
                                  II.
     In his petition for review, Karroumeh contends that his
statutory and due process rights to cross-examine Wright were
violated when the IJ and BIA relied on Wright’s sworn state-
ment even though the government failed to make reasonable
efforts to procure her presence at the hearing. Karroumeh
asserts that he was prejudiced by this error because there was
little basis for finding that his marriage was a sham without
Wright’s sworn statement. The government responds that it
did in fact make reasonable efforts to bring Wright to the
hearing and that those efforts are sufficient under the statute
to allow the sworn statement to be used against Karroumeh.
The government also asserts that it met its burden of demon-
strating by clear and convincing evidence that Karroumeh
married Wright for the sole purpose of obtaining immigration
benefits.
    “When the Board agrees with the decision of the immigra-
tion judge, adopts that decision and supplements that decision
with its own reasoning, as it did here, we review the immigra-
tion judge's decision as supplemented by the Board.” Cece v.
Holder, 733 F.3d 662, 675 (7th Cir. 2013) (en banc). We review
the findings of fact for substantial evidence and reverse only if
the evidence compels a different result. Cece, 733 F.3d at
675–76. We review questions of law de novo, deferring to the
Board's reasonable interpretation set forth in precedential
opinions interpreting the statute. Chevron, U.S.A., Inc. v. Natural
No. 15-2198                                                   11

Resources Def. Council, Inc., 467 U.S. 837, 842–43 (1984); Cece,
733 F.3d at 668–69.
    In seeking to remove Karroumeh from the United States,
the government bore the burden of proving by clear and
convincing evidence that he was deportable, and that his
marriage to Wright was a sham, entered into for the purpose
of obtaining immigration benefits. See 8 U.S.C. § 1229a(c)(3)(A).
Aliens in removal proceedings are entitled to due process of
law under the Fifth Amendment. Pouhova v. Holder, 726 F.3d
1007, 1011 (7th Cir. 2013). The immigration statutes also
impose procedural requirements on removal proceedings, and
any proceeding that meets those requirements also satisfies
constitutional due process. See Pouhova, 726 F.3d at 1011. One
of the statutory procedural guarantees is the right to a reason-
able opportunity to cross-examine witnesses presented by the
government. 8 U.S.C. § 1229a(b)(4)(B); Pouhova, 726 F.3d at
1011; Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010). The
right to cross-examine adverse witnesses extends to those
whose statements are presented in written declarations as well
as those presented through live testimony. Malave, 610 F.3d at
487. “A declarant is a ‘witness’ when testimony comes in on
paper, no less than when it is offered in person.” Malave,
610 F.3d at 487. In challenging the BIA’s decision, Karroumeh
must demonstrate not only that this right was denied but also
that he was prejudiced by the denial. Pouhova, 726 F.3d at 1011.
We review de novo the legal question of whether the admission
of a document violated a petitioner’s procedural rights in a
removal proceeding and, if so, whether the admission was
prejudicial. Pouhova, 726 F.3d at 1011–12.
12                                                No. 15-2198

    The IJ found that the admission of Wright’s statement did
not violate Karroumeh’s procedural rights because the govern-
ment used reasonable efforts to procure Wright’s attendence at
the hearing. We have expressed doubt whether the use of
“reasonable efforts” to procure the presence of the witness is
adequate to ensure the fairness of admitting documents whose
declarants cannot be cross-examined. Pouhova, 726 F.3d at 1015;
Malave, 610 F.3d at 487–88. But as in Pouhova and Malave, we
need not resolve that question here because the record demon-
strates that the government failed to make reasonable efforts
to locate Wright and compel her presence at the hearing.
    The very limited record on this issue demonstrates that the
government asked the court to issue a subpoena compelling
Wright’s appearance at the September 5, 2013 hearing. There
is no evidence in the record that the subpoena was served on
Wright. But more importantly, when the IJ moved the date of
the hearing to January 10, 2014, the government did not
request a new subpoena for that date and the court did not
issue an updated subpoena. Other than seeking a subpoena for
the wrong hearing date, there is no evidence in the record
regarding the government’s efforts to secure Wright’s presence
at the hearing. Nor did the IJ follow through on the regulatory
requirement to seek the assistance of the United States Attor-
ney and the district court in enforcing the subpoena. Section
8 C.F.R. § 1003.35(b)(6) states that, if a subpoenaed witness
“neglects or refuses to appear and testify as directed … the
Immigration Judge issuing the subpoena shall request the
United States Attorney … to report such neglect or refusal to
the United States District Court and to request such court to
issue an order requiring the witness to appear and testify[.]”
No. 15-2198                                                    13

The BIA’s conclusion that only the party seeking the subpoena
could claim the benefits of the enforcement provision found at
8 C.F.R. § 1003.35(b)(6) may be correct but it is irrelevant here:
as the party seeking to use Wright’s sworn statement, the
government was required to use reasonable efforts to secure
Wright’s presence at the hearing, and yet the government
failed to employ this readily available tool. The government
has resources to locate persons who do not wish to be found.
Malave, 610 F.3d at 488. Indeed, the government found Wright
previously, when it wanted to interview her regarding her
marriage to Karroumeh. “A prediction that a person can’t be
found, or that cross-examination won’t be fruitful, is a poor
reason to deny a litigant the statutory entitlement to cross-
examine adverse witnesses.” Malave, 610 F.3d at 488. Although
the government repeatedly invokes the phrase “reasonable
efforts” in its brief, it has never set forth what those efforts
entailed. Left with a record that shows nothing more than a
single, unserved subpoena for the wrong date, we cannot
conclude that the government used reasonable efforts to secure
Wright’s presence at the hearing. Karroumeh has demon-
strated that his procedural right to cross-examination was
violated.
   We turn to the question of prejudice. Wright’s statement
was the primary piece of evidence cited by the IJ in supporting
the decision. The IJ described the statement as “extremely
damaging” to Karroumeh. In addition to Wright’s statement,
the evidence consisted of Wright’s car registrations and
driver’s license renewal; a few photographs of the couple; the
landlord’s letter and sworn statement; leases; the divorce
decree; and the time line of Karroumeh’s entry into the United
14                                                   No. 15-2198

States followed by his relatively quick proxy divorce and
marriage to a United States citizen. Without Wright’s state-
ment, the government could not demonstrate by “clear and
convincing” evidence that the marriage was a sham. Much of
the evidence was consistent with Karroumeh’s testimony that
he and Wright mostly lived apart because his apartment was
not large enough to accommodate her children, and because
she temporarily moved to Mississippi for a period due to a
family crisis. The photographs showed nothing more than
Wright and her children with Karroumeh at an amusement
park, and the wedding. The tax returns were jointly filed, and
the leases were in the names “Mohsen and Terri Karroumeh.”
Without Wright’s statement denying that she filed joint tax
returns for two of the three relevant years, and that she signed
the leases after the fact, the government presented little
evidence that the marriage was a sham.
    Evidence in removal proceedings need not strictly conform
to the Federal Rules of Evidence, but the admission of evidence
must be probative and fundamentally fair. Pouhova, 726 F.3d at
1011. Fairness, in turn, depends in part on the reliability of the
evidence. Id. Hearsay is generally admissible in administrative
proceedings, and may supply substantial evidence in support
of an administrative decision, so long as there has been an
opportunity for cross-examination. Malave, 610 F.3d at 487. As
we noted above, Karroumeh had no opportunity to cross-
examine Wright regarding her out-of-court statement.
   Wright’s statement is marked by contradictions and
inconsistencies that call its reliability into question. For
example, Wright gave three different dates for her move to
Mississippi and two different dates for her return to Illinois.
No. 15-2198                                                   15

She both denied signing leases with Karroumeh and also
admitted signing them. Some of her statements beg for an
explanation, such as her claim that she did not live with
Karroumeh at his Worth address “lease wise.” Wright gave the
statement more than six years after her divorce from
Karroumeh. In a response that could be interpreted as display-
ing bias , she said that she divorced Karroumeh because after
“constant lie after lie, he never followed through with his plans
like getting a house[.]” Karroumeh has been deprived of an
opportunity to ask clarifying questions or pursue areas left
unexplored by Leslie. In his appeal to the Board, Karroumeh
noted that Leslie never directly asked Wright if she was
engaged in a fraudulent marriage, never asked for the meaning
of the term “lease wise,” never inquired why Karroumeh gave
Wright money during the marriage, and never asked whether
Wright was prosecuted for marriage fraud. In light of the
contradictions and inconsistencies as well as Wright’s motive
to testify against her ex-husband, her hearsay statement was
unreliable and Karroumeh should have been allowed an
opportunity to test it with cross-examination. The admission of
her statement under these circumstances was not fundamen-
tally fair. And without this evidence, the government could not
meet its burden of demonstrating by clear and convincing
evidence that the marriage was a sham. Karroumeh has thus
established prejudice.
    As we noted in Pouhova, it is unclear whether the govern-
ment’s reasonable efforts to locate a witness could render
unreliable hearsay any more reliable or its use any more fair
than if the government made no effort to secure the presence
of the witness. 726 F.3d at 1015. Because the government did
16                                                  No. 15-2198

not make reasonable efforts to bring Wright to the hearing, we
reserve that question for a case where it would affect the
outcome. In this case, it is clear that Karroumeh’s procedural
right to cross-examine the main witness against him was
violated, and that this error was prejudicial. We therefore grant
his petition and remand for a hearing that provides Karroumeh
with all the procedural rights due to him.
                                        PETITION GRANTED.
