                             In the

    United States Court of Appeals
               For the Seventh Circuit
                   ____________________
No. 14-2179
MOHAMED BOURAS,
                                                       Petitioner,

                               v.

ERIC H. HOLDER, JR.,
Attorney General of the United States,
                                                      Respondent.
                   ____________________

              On Petition for Review of an Order of
               the Board of Immigration Appeals
                        No. A089 601 787
                   ____________________

   ARGUED JANUARY 27, 2015 — DECIDED MARCH 4, 2015
   AMENDED DISSENTING OPINION ISSUED MARCH 13, 2015
                ____________________

   Before POSNER, SYKES, and HAMILTON, Circuit Judges.
    HAMILTON, Circuit Judge. Petitioner Mohamed Bouras, a
citizen of Algeria, was granted status as a conditional per-
manent resident based on his marriage to a U.S. citizen. That
marriage ended by divorce before Bouras had obtained un-
conditional permanent residency. He was later placed in re-
moval proceedings after he failed to convince the United
2                                                 No. 14-2179

States Citizenship and Immigration Services that he had en-
tered the marriage in good faith.
    In immigration court, Bouras sought a discretionary
waiver available to aliens who can show that they entered in
good faith a failed marriage with a U.S. citizen. Bouras testi-
fied at the final removal hearing, but neither his ex-wife nor
any other witness appeared at the hearing to testify about
the marriage. At the end of the hearing, Bouras sought a con-
tinuance so that his ex-wife could testify as well. The immi-
gration judge denied that request, saying that no “extenuat-
ing circumstances” justified a continuance. The judge then
found that Bouras was not eligible for the discretionary
waiver because he had not established the marriage had
been in good faith. The Board of Immigration Appeals up-
held that decision, including the denial of a continuance. The
Board endorsed the judge’s explanation and added its own
reasons for concluding that Bouras’s request for a continu-
ance was properly denied. Bouras has petitioned for review.
He does not challenge the judge’s and the Board’s finding
that he failed to prove his case. He argues only that he
should have been granted a continuance so that his ex-wife
could testify on his behalf. We deny the petition. The denial
of Bouras’s last-minute request for a continuance was not an
abuse of discretion.
I. Factual and Procedural Background
    Bouras entered the United States in 1997 as a non-
immigrant visitor for business. See 8 U.S.C. § 1101(a)(15)(B);
22 C.F.R. § 41.31(a). He overstayed his visa and thus was,
like so many others, living in this country illegally. In Sep-
tember 2006, while Bouras was living in Chicago, he married
Jennifer Schreiner, a U.S. citizen who lived in Ohio. A year
No. 14-2179                                                   3

after marrying he became a conditional permanent resident
based on that marriage. See 8 U.S.C. § 1186a(a)(1); 8 C.F.R.
§216.1.
    To gain unconditional status, a conditional permanent
resident must establish that he or she entered into the mar-
riage in good faith. This showing is made most often by fil-
ing a joint petition with the citizen spouse and appearing
with the spouse for a personal interview. 8 U.S.C. § 1186a(c),
(d); 8 C.F.R. § 216.4(a)(1), (b). The necessary “Petition to Re-
move Conditions on Residence” (also called a Form I-751)
can be filed only within the 90-day period before the second
anniversary of obtaining conditional permanent residency.
8 U.S.C. § 1186a(d)(2); 8 C.F.R. § 216.4(a)(1).
    If the marriage ends before the alien has satisfied these
requirements, the alien can still obtain unconditional status
by filing the Form I-751 without the spouse and requesting a
discretionary waiver. To receive the discretionary waiver—
and with it, the removal of the conditions on residence—the
alien must demonstrate that the marriage was entered in
good faith even though it later failed. 8 U.S.C.
§ 1186a(c)(4)(B); 8 C.F.R. § 216.5(a)(1)(ii).
    In early 2009, Bouras and Schreiner divorced. For most of
their two-and-a-half year marriage, Bouras had continued
working in Chicago while Schreiner remained in Ohio. For
at least six months of their marriage, Bouras had returned to
Algeria alone to visit his family. After the divorce, Bouras
submitted a Form I-751 to United States Citizenship and
Immigration Services requesting a discretionary waiver of
the joint-filing requirement. As evidence that his marriage to
Schreiner was in good faith, Bouras submitted an affidavit
from Schreiner, as well as letters and affidavits from several
4                                                  No. 14-2179

friends and family members, utility bills, photographs of
him with Schreiner, copies of unsigned joint income tax re-
turns saying that Bouras had been unemployed and earned
nothing during their marriage, an e-mail from Southwest
Airlines confirming Schreiner’s purchase of a ticket from
Ohio to Chicago in December 2006, Bouras’s Ohio driver’s
license and car title, an undated letter showing that Schrein-
er had opened a joint checking account with Fifth Third
Bank, and two bank statements from Fifth Third showing
minimal activity in that account.
    In her brief affidavit, Schreiner said that she had lived in
Columbus during the marriage while Bouras lived in
Chicago. She explained that he did so only because he could
not find a job in Ohio, and that every month he took a couple
of weeks off from his job driving a cab in Chicago to live
with her in Columbus. Schreiner said that she and Bouras
had divorced because he wanted children and she did not
(she had two young children from a previous marriage). She
said that she had changed the electric service for her home
into Bouras’s name to make him feel like he “belong[ed] in
[their] home” and that they had a joint checking account
with Fifth Third Bank that “was not utilized often.” Schrein-
er also said there were not many pictures of the couple be-
cause usually one of them was taking the pictures, mostly of
her children. In the other affidavits and letters submitted by
Bouras, family and friends described interactions with the
couple.
    In early 2010, USCIS denied Bouras’s request for a waiv-
er, finding that he had failed to show by a preponderance of
the evidence that he and Schreiner married in good faith.
The agency noted, among other things, that the couple had
No. 14-2179                                                    5

not lived together during the marriage. (Everyone recogniz-
es that married couples may sometimes need to live apart for
a host of reasons. See, e.g., Surganova v. Holder, 612 F.3d 901,
905 (7th Cir. 2010). Still, an undocumented alien’s brief mar-
riage to a U.S. citizen, during which the couple spent little or
no time together and kept their property and finances sepa-
rate, raises obvious warning signs for immigration authori-
ties. See 8 C.F.R. § 1216.5(e)(2) (stating that evidence relevant
to “whether an alien entered into a qualifying marriage in
good faith … may include … [d]ocumentation relating to the
degree to which the financial assets and liabilities of the par-
ties were combined” and “[d]ocumentation concerning the
length of time during which the parties cohabited after the
marriage and after the alien obtained permanent resi-
dence”).) Bouras’s status as a conditional permanent resident
was terminated, and the agency issued a Notice to Appear
charging       him      with       removability.     See 8 U.S.C.
§ 1227(a)(1)(D)(i).
    At a February 2011 appearance before the immigration
judge, Bouras conceded removability but renewed his re-
quest for a discretionary waiver of the joint filing require-
ment. A year later, in February 2012, the immigration judge
scheduled the final removal hearing for August 2012. Notice
of that hearing was sent to Bouras’s lawyer. About three
weeks before the hearing date, Bouras tendered as evidence
essentially the same materials he had tendered in support of
his Form I-751. He also submitted a witness list naming both
himself and his ex-wife, Schreiner.
    At the beginning of the final removal hearing, Bouras’s
lawyer announced that Schreiner had sent him a fax earlier
in the week saying she would be unable to attend. In the fax,
6                                                 No. 14-2179

dated five days before the hearing, Schreiner said that she
had been “just notified” of the hearing date and was unable
to take time off work for the next six to eight weeks because
she was needed to train a new hire. Bouras’s lawyer did not
request a continuance at that time but went forward with the
hearing, calling Bouras to testify.
    Bouras testified that he first met Schreiner while visiting
Columbus, Ohio, in 2005 and married her a year later. He
had worked as a cab driver in Chicago during the marriage,
Bouras said, because he needed the money and his efforts to
find work in Columbus (by running a hotdog stand and ob-
taining a chauffeur’s license) were unsuccessful. According
to Bouras, he routinely worked in Chicago for two or three
weeks and then joined Schreiner in Columbus for two
weeks. During the marriage, he also had spent a total of six
months visiting Algeria, though never with Schreiner.
Bouras testified that he and Schreiner split up because he
wanted children but she did not.
    When asked about the joint tax returns he had submitted,
Bouras said that Schreiner sent them to use as evidence in
the removal proceedings but that he had never seen them
before. He acknowledged that his income was not reported
on the returns. He said that he and Schreiner did not jointly
own any property, but said he had contributed half of the
mortgage payments on Schreiner’s house during the mar-
riage. When asked about the couple’s seldom-used joint
checking account, Bouras said he did not have records show-
ing how often the account had been used. He said that he
had withdrawn money from the account to buy equipment
for his hotdog stand but no longer had records of those pur-
chases.
No. 14-2179                                                             7

    After Bouras finished his testimony, his counsel for the
first time requested a continuance so that Schreiner could
testify. The immigration judge denied the request, explain-
ing that he does not “continue the cases once they’re sched-
uled for a final hearing unless there’s an emergency situa-
tion” or “unless there’s some extenuating circumstance.”
    The judge then gave his oral decision denying Bouras’s
petition for a discretionary waiver and ordering him re-
moved to Algeria. The judge found not credible Bouras’s tes-
timony that he lived apart from Schreiner because he could
not find work in Columbus. Because no witnesses were
available for cross-examination, the judge gave little weight
to the affidavits that Bouras had submitted. The affidavits
were further undermined, the judge reasoned, by the facts
that the couple did not have joint assets and that Bouras was
unfamiliar with his own purported tax returns. Finally, the
judge noted that Bouras had made several long trips to Alge-
ria during the brief marriage, always without Schreiner. The
judge did not find that the marriage was a sham, but he
found that Bouras had failed to meet his burden of proving
that he entered into the marriage in good faith. 1


    1 There was no inherent inconsistency in the immigration judge’s
finding that Bouras had failed to meet his burden of proof without mak-
ing an affirmative finding of a fraudulent marriage. To obtain the discre-
tionary waiver, Bouras had the burden of proving good faith. 8 U.S.C.
§ 1186a(c)(4)(B); 8 C.F.R. § 216.5(a)(1)(ii). The government has not taken
the further step of trying to prove by clear and convincing evidence that
the marriage was in fact fraudulent. See 8 U.S.C. §§ 1227(a)(1)(A),
1182(a)(6)(C)(i); Surganova v. Holder, 612 F.3d 901, 904 (7th Cir. 2010).
Such a finding could result in Bouras being barred for life from attaining
immigration benefits through a citizen spouse or other relative. See 8
U.S.C. § 1154(c); Ogbolumani v. Napolitano, 557 F.3d 729 (7th Cir. 2009)
8                                                            No. 14-2179

     The Board upheld the immigration judge’s denials of the
discretionary waiver and the request for a continuance. The
Board agreed with the judge that Bouras had failed to prove
by a preponderance of the evidence that his marriage to
Schreiner was in good faith. The Board also concluded that
the judge had correctly denied Bouras’s request for a contin-
uance because, the Board explained, Bouras had not demon-
strated good cause as required by regulation. See 8 C.F.R.
§ 1003.29. The judge’s refusal to grant a continuance was jus-
tified, the Board reasoned, because Bouras (1) had waited
until the day of the final hearing to request the continuance,
(2) had not “explained why his ex-wife was apparently not
provided notice until a few days before the hearing,” and
(3) had not clarified whether his ex-wife “could provide tes-
timony by phone or in-person on a date that would not con-
flict with her work schedule.”
II. Analysis
    Bouras’s petition for review does not challenge the im-
migration judge’s conclusion, affirmed by the Board, that he
failed to meet his burden of proving that he married


(affirming denial of visa to alien based on good-faith second marriage
where government found that his first marriage had been fraudulent).
Nor, quite sensibly, has the government tried to take the still further step
of criminal prosecution, which is also possible. See 8 U.S.C. § 1325(c);
United States v. Darif, 446 F.3d 701 (7th Cir. 2006). We recognize that
Bouras has offered evidence of a good-faith marriage that could have
supported a discretionary finding in his favor. There is no evidence that
he paid Schreiner to marry him, which is the typical hallmark of a sham
marriage. Since the immigration system is certainly overburdened, it’s
no surprise in this close case that the government has not tried to meet
these higher burdens to impose punitive sanctions on Bouras in addition
to his removal.
No. 14-2179                                                   9

Schreiner in good faith. Nor does Bouras challenge on any
other ground the denial of his application for the discretion-
ary good-faith marriage waiver. Most challenges to the deni-
al of such a waiver would be foreclosed by 8 U.S.C.
§ 1252(a)(2)(B)(ii), which restricts our review of decisions of
the Attorney General or the Secretary of Homeland Security
that are made discretionary by statute. See 8 U.S.C.
§ 1186a(c)(4) (providing that grant of good-faith marriage
waiver is within discretion of Secretary of Homeland
Security); Boadi v. Holder, 706 F.3d 854, 857 (7th Cir. 2013);
Fynn v. U.S. Attorney General, 752 F.3d 1250, 1252 (11th Cir.
2014); Johns v. Holder, 678 F.3d 404, 405–06 (6th Cir. 2012).
Although 8 U.S.C. § 1252(a)(2)(D) could provide jurisdiction
to review colorable legal and constitutional claims, Bouras
has not raised any such claims.
    The only decision that Bouras challenges in this court is
the denial of his request for a continuance. We have jurisdic-
tion to review that denial. Although we lack jurisdiction to
review the discretionary denial of the good-faith marriage
waiver, review of a related procedural motion (such as a mo-
tion for a continuance) is foreclosed “only if the agency’s ra-
tionale for denying the procedural request also establishes
the petitioner’s inability to prevail on the merits of his un-
derlying claim.” Calma v. Holder, 663 F.3d 868, 876 (7th Cir.
2011); see Zambrano-Reyes v. Holder, 725 F.3d 744, 749 & n.2
(7th Cir. 2013); Moral-Salazar v. Holder, 708 F.3d 957, 960 (7th
Cir. 2013); Cruz-Mayaho v. Holder, 698 F.3d 574, 576–77 (7th
Cir. 2012). Here, the agency’s rationale for denying Bouras’s
motion for a continuance—that he failed to establish good
cause—does not affect whether he is entitled to or eligible
for the discretionary waiver, so we have jurisdiction over his
petition.
10                                                  No. 14-2179

    The scope of our review, however, is narrow. We review
the denial of a motion for a continuance only for an abuse of
discretion. See Calma, 663 F.3d at 878; Jonaitiene v. Holder, 660
F.3d 267, 272 (7th Cir. 2011). Under this standard, we will
uphold the denial of a continuance “unless it was made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis such
as invidious discrimination against a particular race or
group.” Calma, 663 F.3d at 878 (citations and internal quota-
tion marks omitted). When, as here, the Board agrees with
the immigration judge and supplements the judge’s decision
with its own explanation, we review the judge’s decision as
supplemented by the Board’s reasoning. See Barma v. Holder,
640 F.3d 749, 751 (7th Cir. 2011); Pawlowska v. Holder, 623
F.3d 1138, 1141 (7th Cir. 2010).
    By regulation, a party seeking a continuance must show
“good cause.” 8 C.F.R. § 1003.29; Mozdzen v. Holder, 622 F.3d
680, 684 (7th Cir. 2010). “Good cause” is not defined by the
regulations, so the standard is interpreted by the Board “in
different ways depending on the facts and circumstances
presented.” Matter of Hashmi, 24 I. & N. Dec. 785, 788 (BIA
2009). When a continuance is sought for the purpose of pre-
senting additional evidence, the standard for granting the
request is high. Id. At a minimum, the party must show that
significantly favorable evidence is not currently available
despite a good-faith effort to present it. See Adame v. Holder,
762 F.3d 667, 672–73 (7th Cir. 2014); Hashmi, 24 I. & N. Dec.
at 788; Matter of Sibrun, 18 I. & N. Dec. 354, 356–57 (BIA
1983).
   Bouras’s principal contention is that the immigration
judge improperly denied the continuance based on “case
No. 14-2179                                                   11

completion goals.” He asserts that the judge’s “statements
show that as a rule he will not consider continuance requests
when the case is set for trial in the absence of an emergen-
cy.” The continuance was denied, Bouras insists, not because
he lacked good cause but solely “because the case was set for
trial already.”
    We find no abuse of discretion. First, the record refutes
Bouras’s assertion that the immigration judge applied an
improper legal standard. The judge said that once a final
hearing is scheduled, he grants continuances only when
there is “an emergency situation” or “some extenuating cir-
cumstance.” We see no significant gap between that ap-
proach and the regulation’s good cause requirement applied
by the Board and by this court. See Adame, 762 F.3d at 673
(petitioner seeking continuance must show, among other
things, that he was “unable to procure the necessary evi-
dence despite a diligent effort”); Sibrun, 18 I. & N. Dec. at 356
(petitioner seeking continuance “at least must make a rea-
sonable showing that the lack of preparation occurred de-
spite a diligent good faith effort to be ready to proceed”).
   As the party seeking a continuance, Bouras bore the bur-
den of showing good cause. See 8 C.F.R. § 1003.29;
Mazariegos-Paiz v. Holder, 734 F.3d 57, 66 (1st Cir. 2013);
Ramchandani v. Gonzales, 434 F.3d 337, 338 (5th Cir. 2005). To
show that denying a continuance was an abuse of discretion,
Bouras must show at the very least that Schreiner’s testimo-
ny would have been significantly favorable to him and that
he made a good-faith effort to obtain her appearance. He has
not shown either point.
  First, Bouras never established that Schreiner’s testimony
would have been significantly favorable to him. The only ev-
12                                                No. 14-2179

idence we have of what she would have said is her affidavit.
That affidavit does not undermine the judge’s findings that
the couple had no joint assets, that their purported tax re-
turns were suspect, and that Bouras had spent most of the
marriage apart from Schreiner either in Chicago or Algeria.
Bouras asserts that Schreiner “could have answered ques-
tions about the tax returns.” But Schreiner’s statement in her
affidavit that Bouras had worked as a cab driver in Chicago
directly contradicts the joint tax returns in which she report-
ed that he was unemployed. Bouras does not tell us how
Schreiner could explain this discrepancy. His challenge to
the judge’s denial of the continuance fails because he has not
shown that he was prejudiced by the decision. See Wang v.
Holder, 759 F.3d 670, 675 (7th Cir. 2014); Calma, 663 F.3d at
878.
    Second, even if we assume that Schreiner’s testimony
would have been helpful, Bouras has not shown that he
made a good-faith effort to ensure her presence. As the
Board pointed out, Bouras has yet to explain why he blind-
sided the judge by waiting until the day of the hearing—
indeed, until the end of the hearing—to request a continu-
ance when he knew five days before the hearing that his
ex-wife would not be available. That failure distinguishes
this case from those in which we have concluded that an
immigration judge erred by denying a continuance to a peti-
tioner seeking to submit additional evidence. See, e.g., Gjeci
v. Gonzales, 451 F.3d 416, 419–24 (7th Cir. 2006) (concluding
that judge should have granted continuance to pro se peti-
tioner when his lawyer unexpectedly withdrew shortly be-
fore merits hearing and kept documents critical to the case);
Boyanivskyy v. Gonzales, 450 F.3d 286, 291–94 (7th Cir. 2006)
(granting petition for review where—despite petitioner’s
No. 14-2179                                                         13

best efforts to make witnesses available—judge arbitrarily
scheduled merits hearing for date when judge knew none of
the witnesses could testify).
    As the Board noted, Schreiner said in her fax that she had
just been told about the date of a hearing scheduled
six months earlier. That statement undermined any claim
that Bouras diligently sought her testimony. Bouras suggests
Schneider’s phrase “just notified” is cryptic. It’s not precise,
but it’s not consistent with a diligent effort by Bouras to
make sure that she could attend the hearing. Bouras has not
claimed that he had told her about the removal hearing long
enough before she sent the fax for her to have planned to at-
tend.
     Bouras responds that it would not have mattered how far
in advance Schreiner learned of the hearing date because she
would have been unavailable due to the staffing shortage.
The assertion does not persuade us that the denial was an
abuse of discretion. Whether Schreiner might have been able
to appear, either in person or otherwise, is a question of fact.
Schreiner did not say, and has never said, that even with suf-
ficient advance notice she would not have been able to adjust
her work schedule to accommodate Bouras’s need for her
testimony. And as the Board pointed out, witnesses in im-
migration proceedings may testify by telephone. See 8 U.S.C.
§ 1229a(b)(2); 8 C.F.R. § 1003.25(c). If Schreiner had been no-
tified earlier—or if Bouras had requested accommodations
before the hearing—perhaps arrangements could have been
made for her to testify by telephone before or after work or
during a break. 2 And while perhaps another immigration

   2   Although Bouras may have been unaware that witnesses could tes-
tify telephonically, the record shows that his lawyer was familiar with
14                                                      No. 14-2179

judge might have suggested that option, even at the end of
the hearing, we see no basis for finding that it was an abuse
of discretion for the judge not to make the suggestion him-
self.
   Finally, Bouras argues that all of these reasons for deny-
ing his motion for a continuance are irrelevant because they
were articulated by the Board rather than the immigration
judge. As noted, however, the Board’s reasons are properly
considered where, as here, the Board agrees with the judge’s
decision and provides its own supplementary reasoning.
See Barma, 640 F.3d at 751; Pawlowska, 623 F.3d at 1141.
     Accordingly, Bouras’s petition for review is DENIED.




this option. Prior to the Master Calendar Hearing in February 2011, he
filed an “Emergency Motion to Appear Telephonically.” That motion
was granted by the immigration judge and counsel appeared at the hear-
ing via telephone.
No. 14-2179                                                15


    POSNER, Circuit Judge, dissenting. The immigration
judge, the Board of Immigration Appeals, and my colleagues
on this panel have confused a failed marriage with a fraudu-
lent one. The majority opinion declares that “the [immigra-
tion] judge did not find that the marriage was a sham, but he
found that Bouras had failed to meet his burden of proving
that he entered into the marriage in good faith.” But if the
marriage wasn’t a sham, it must have been in good faith. For
what would a bad-faith marriage that was not a sham be?
The Board and my colleagues have also ratified a procedural
error by the immigration judge that seriously prejudiced the
immigrant.
     An immigrant otherwise unauthorized to remain in the
United States has a path to citizenship by marrying an
American citizen, provided that the marriage is not fraudu-
lent—that is, that at the time of the marriage the parties had
intended to establish a life together and were not simply
marrying for the purpose of obtaining U.S. citizenship for
the immigrant. Often in such a case the U.S. citizen spouse is
paid. But there is no suggestion of that here; nor is it a re-
motely plausible possibility given the financial situation of
the immigrant spouse.
     Often, it is true, the motive for entering a fraudulent
marriage is selfless. A famous example, though involving
British rather than U.S. citizenship, is W. H. Auden’s 1935
marriage to Erika Mann, the eldest daughter of Thomas
Mann. The sole purpose of the marriage was to enable her to
leave Nazi Germany and become a British citizen. Both hus-
band and wife were homosexual and never lived together.
The marriage was for a good cause but nevertheless was
fraudulent. It was never dissolved, because neither party
16                                                No. 14-2179


could have entered into a same-sex marriage. Neither party
was punished for the fraud. They were lucky to marry in
England and not in the United States, if one may judge from
the attitude displayed by the authorities in this case.
     Bouras, who is Algerian, was working as a taxicab driver
in Chicago in 2005 (he had entered the country on a visitor’s
visa in 1997, and so had no right to still be here) when, on a
visit to a friend in Columbus, Ohio, he met a divorced wom-
an named Jennifer Schreiner. She lived near Columbus and
worked as an account manager at CompManagement, Inc.,
and later as a lost-time claims examiner for Frank Gates Ser-
vice Company. Both are Columbus firms that are in the
business of administering workers’ compensation insurance
contracts. The two married in September 2006. She was 31
years old, he 36.
     There is no evidence that the marriage was fraudulent.
Jennifer’s job in Columbus paid more than Bouras’s job as a
taxicab driver in Chicago, and she owned her home (Bouras
at the time shared a rented apartment with another man),
and had two young children. Given her job and her family
situation, there was no question of her moving to Chicago.
So instead Bouras tried to find work in Columbus. He en-
tered a lottery to obtain a license to operate a hotdog stand
there, and obtained a license, but it turned out to be in a bad
location. He tried to make a go of it but was unable to do so
and after several months gave up and returned to his taxicab
job in Chicago. While in Columbus he lived with his wife,
and after returning to Chicago after the failure of his hotdog
venture would return to Columbus every month or so and
live with her in her house for two weeks or so.
No. 14-2179                                                17


     The majority opinion states that “as evidence that his
marriage to Schreiner was in good faith, Bouras submitted
an affidavit from Schreiner, as well as letters and affidavits
from several friends and family members, utility bills, pho-
tographs of him with Schreiner, copies of unsigned joint in-
come tax returns saying that Bouras had been unemployed
and earned nothing during their marriage, an e-mail from
Southwest Airlines confirming Schreiner’s purchase of a
ticket from Ohio to Chicago in December 2006, Bouras’s
Ohio driver’s license and car title, an undated letter showing
that Schreiner had opened a joint checking account with
Fifth Third Bank, and two bank statements from Fifth Third
showing minimal activity in that account.”
    Schreiner submitted an affidavit in the administrative
proceeding, which the majority opinion summarizes as fol-
lows: “Schreiner said that she had lived in Columbus during
the marriage while Bouras lived in Chicago. She explained
that he did so only because he could not find a job in Ohio,
and that every month he took a couple of weeks off from his
job driving a cab in Chicago to live with her in Columbus.
Schreiner said that she and Bouras had divorced because he
wanted children and she did not (she had two young chil-
dren from a previous marriage). She said that she had
changed the electric service for her home into Bouras’s name
to make him feel like he ‘belong[ed] in [their] home’ and that
they had a joint checking account with Fifth Third Bank that
‘was not utilized often.’ Schreiner also said there were not
many pictures of the couple because usually one of them
was taking the pictures, mostly of her children.” The only
fishy element in this account is, as the majority opinion
points out, that “Schreiner’s statement in her affidavit that
Bouras had worked as a cab driver in Chicago directly con-
18                                                No. 14-2179


tradicts the joint tax returns in which she reported that he
was unemployed.” But there isn’t any doubt that Bouras
worked as a cab driver in Chicago.
    The couple separated in August 2008, apparently be-
cause Bouras wanted to have children, while Jennifer, hav-
ing two children from her previous marriage living with her,
did not. They also had quarreled over her dog. The follow-
ing year they divorced.
     I wouldn’t expect a marriage between an Algerian im-
migrant who drives a cab in Chicago and an American
woman (Jennifer’s maiden name is “Jones” and photographs
of her, her children, and her sister—who submitted an affi-
davit on Bouras’s behalf—make plain that they are of north-
ern European, not north African, ethnicity) who has a corpo-
rate job in another state to have the brightest prospects for
success. And though commuting marriages have become
fairly common, such a marriage can place a great strain on a
relationship. The combination of a marriage between per-
sons in different socio-economic classes and of different na-
tionalities with the fact that one has children by a previous
marriage and the other does not and that it’s a commuting
marriage doesn’t augur well for marital stability. Ten per-
cent of second marriages (marriage to Bouras was Jennifer’s
second marriage) end within one year. Avvo, “Marriage and
Divorce,” www.avvo.com/legal-guides/ugc/marriage-divorc
e-statistics (visited Mar. 1, 2015, as were the other websites
cited in my opinion). Bouras’s marriage to Jennifer endured
(treating their separation as its termination) for 23 months.
     In deciding to deport Bouras the immigration judge and
the Board of Immigration Appeals made some downright
silly remarks, noting for example that Bouras had failed to
No. 14-2179                                                 19


explain why Jennifer had not moved with him to Chicago.
She had young children, other family, a house that she
owned, and a good job in Ohio, and there is no information
on what her prospects for obtaining a job in Chicago compa-
rable to her Columbus job would have been. Also the cost of
living is lower in Columbus than in Chicago. NUMBEO,
“Cost of Living Comparison between Chicago, IL and Co-
lumbus, OH,” www.numbeo.com/cost-of-living/compare_
cities.jsp?country1=United+States&city1=Chicago%2C+IL&c
ountry2=United+States&city2=Columbus%2C+OH. Another
silly remark was that the couple had not “commingled” its
assets. Not all married couples do—and it is doubtful that
Bouras has ever had any significant assets.
     The immigration judge couldn’t understand why, Bour-
as’s hotdog stand having fallen through, he had not waited
the required amount of time and then started driving a cab
in Columbus. He had obtained an Ohio driver’s license on
February 16, 2007, so the six-month waiting period before he
could use it as a taxicab driver would have ended in August
of that year. His hotdog stand failed in June and on July 17,
2007, he re-applied for an Illinois driver’s license and was
therefore required to and did surrender his Ohio license (one
is allowed to have only one state’s driver’s license at a time,
so to obtain the Ohio license he had to give up his Illinois
one). Once he decided to go back to Chicago to make some
money driving a cab in July 2007 he could not return and try
to obtain an Ohio commercial driver’s license as well. The
fact that he obtained a license to open a hotdog stand in
Ohio and operated it, and obtained an Ohio driver’s license
as well, is evidence that he intended to live with his wife. So
far as appears, he returned to Illinois only because his em-
ployment prospects in Ohio turned out to be poor. We have
20                                                No. 14-2179


no information on openings or income in cab driving in Co-
lumbus in 2007.
      The immigration judge was troubled by the fact that
during the marriage Bouras made several long trips to Alge-
ria, to visit his family there, and didn’t take Jennifer with
him. (He was able to leave and return to the United States
because he had become a conditional permanent resident on
the basis of his marriage.) But there is no evidence that she
could have spared the time either from her job, or from her
still-young children, to take such trips. As for where Bouras
got the money for the plane tickets, it might have been from
his wife, from his Algerian family, or even out of his own
pocket, because even today one can buy a round-trip ticket
between Chicago and Algiers for less than $800. The price
may have been lower when he made the trips during their
marriage, which ended some years ago. Anyway how the
trips were financed was not considered by the immigration
judge or the Board of Immigration Appeals.
     There is no evidence that Jennifer had a financial motive
in marrying Bouras or that she ever obtained any money
from him (her income was higher than his, but she had child
and household expenses that he didn’t), and so a financial
motive for her agreeing to marry him (and thus smooth his
way to eventual U.S. citizenship) can be excluded. There is
also no evidence of a selfless motive for a phony marriage, as
in the Auden-Mann marriage. Does an apparently successful
middle-class Midwesterner marry an illegal Algerian immi-
grant who drives a taxi in another (and non-adjoining) state
because she feels sorry for him for not being a U.S. citizen?
Not likely—and there’s no evidence of such an Audenesque
No. 14-2179                                                       21


motive. I cannot locate the factual basis for supposing the
marriage to have been fraudulent.
     In all likelihood what did in Bouras was the immigration
judge’s refusal to grant a continuance to enable Jennifer to
testify at Bouras’s hearing. When the hearing began, his
lawyer told the immigration judge that Jennifer couldn’t ap-
pear because of a severe staffing shortage in her office in Co-
lumbus that would keep her tied up there for six to eight
weeks. It’s not as if Chicago and Columbus were next door,
so that she could have taken a few hours off work to attend
the hearing. The two cities are 356 miles apart by road, and it
takes six hours to drive from one to the other. Flying is faster
of course, but given the frequent delays in current American
air travel plus the added travel time from origin to airport at
one end of the trip and from airport to destination at the
other end, overall travel time is unlikely to be significantly
shorter by air than by road.
    Bouras’s lawyer had received a fax from Jennifer five
days before the hearing, informing him that she could not
attend it on the scheduled date. He should have notified the
immigration judge promptly, but failed to do so. But that de-
lay was not a factor in the immigration judge’s refusal to
grant a continuance, concerning which he said only:
    I don’t continue cases once they’re scheduled for a final
    hearing unless there’s an emergency situation. If the re-
    spondent’s wife could not come to court because of her
    work, then she’s not able to come to court. That’s the bot-
    tom line. I don’t continue cases after a case is scheduled
    for trial unless there’s some extenuating circumstance.
   This means that even if Bouras had talked to Jennifer five
months rather than five days earlier and promptly notified
22                                                  No. 14-2179


the immigration judge that she would not be able to appear
for a hearing on August 7, 2012, the judge still would not
have changed the date of the hearing; for he had scheduled
the hearing for that date more than six months earlier. It was
not the delay in conveying the information that she couldn’t
make the hearing that mattered to the judge, but that the
hearing had already been scheduled—whenever. He did not
refer this arbitrary policy to a rule or statute, and as far as I
know there’s no basis for it—it appears just to be his person-
al rule, his display of arbitrary bureaucratic power (“Oh, it is
excellent / To have a giant’s strength; but it is tyrannous / To
use it like a giant.”) Not only is his self-made rule irrational,
but he managed to compound the irrationality by overlook-
ing the fact that there was an extenuating circumstance—the
staffing shortage in Jennifer’s place of work. All he said
about that was that if she “could not come to court because
of her work, then she’s not able to come to court. That’s the
bottom line.” In other words, tough luck—and that same fa-
talism might well have led him to say, faced with proof that
Jennifer had had a serious illness that precluded her attend-
ance at the hearing, that if she “could not come to court be-
cause of an illness, then she’s not able to come to court.
That’s the bottom line.”
     I am disturbed by a number of things in the majority
opinion, including the statement that “Bouras has yet to ex-
plain why he blindsided the judge by waiting until the day
of the hearing—indeed, until the end of the hearing—to re-
quest a continuance when he knew five days before the hear-
ing that his ex‐wife would not be available.” Bouras is a taxi
driver, not a lawyer. He was represented by a lawyer who
specializes in immigration law. It was counsel’s responsibil-
ity to notify the immigration judge promptly of Jennifer’s
No. 14-2179                                                23


inability to attend the hearing. Unfortunately Bouras’s law-
yer, although as I said he specializes in immigration law, did
not represent his client competently.
     The majority opinion points out that “Schreiner did not
say, and has never said, that even with sufficient advance
notice she would not have been able to adjust her work
schedule to accommodate Bouras’s need for her testimony.”
But when was she supposed to have said that? As far as ap-
pears, she was never asked whether she could adjust her
work schedule to accommodate Bouras’s need for her testi-
mony. Certainly the immigration judge didn’t ask her, or ask
Bouras’s lawyer to ask her. She was kept in Ohio because her
office was down to two staff members and it would take her
six to eight weeks to train a new hire to fill the third slot.
There is no basis for supposing that she had foreseen this
emergency and could therefore have notified Bouras’s law-
yer of her future unavailability before the immigration judge
scheduled the hearing. (Remember that she’d had to have
foreseen it six months earlier and immediately notified the
immigration judge, in order to have a prayer that he’d grant
a continuance, given his “rule.”) Though he says that his
”rule” does not apply if there is an emergency or some (oth-
er) extenuating circumstance, there was an extenuating cir-
cumstance; it’s difficult to understand how the immigration
judge managed to overlook that.
    The length of the delay sought by Bouras’s lawyer, and
the age of the case, may explain the immigration judge’s im-
patience and inattention, along with the fact that like most
immigration judges he doubtless is overworked. But there
was a simple, economical alternative to granting a multi-
week continuance, and that was to arrange for Jennifer to
24                                                No. 14-2179


testify telephonically. She could have done that if need be
after work, since Chicago’s time is an hour behind Colum-
bus’s. The immigration judge should have considered that
option, as is obvious from the fact that in reviewing his deci-
sion the Board of Immigration Appeals chided Bouras for
not having thought to arrange for various persons who
submitted affidavits concerning the bona fides of the mar-
riage to testify in person or telephonically. We have heard
cases in which the immigration judge had obtained evidence
from an expert witness telephonically. See, e.g., Niam v. Ash-
croft, 354 F.3d 652, 659 (7th Cir. 2004). And with Skype or
some equivalent video-type linkup, a telephonic interview is
almost indistinguishable from an interview in person; it is
face to face, albeit mediated electronically.
     The majority opinion notes the complaint of the Board of
Immigration Appeals that Bouras “had not clarified whether
his ex-wife ‘could provide testimony by phone or in-person
on a date that would not conflict with her work schedule.’”
It is possible that neither Bouras nor his lawyer were aware
that witnesses can testify in an immigration hearing by tele-
phone, though Bouras’s lawyer had made an appearance in
the case by telephone. In any event the immigration judge
didn’t mention the telephonic option; the Board mentioned
it, but that of course was too late. Chapter 4 of the Immigra-
tion Court Practice Manual, www.justice.gov/eoir/vll/
OCIJPracManual/Practice_Manual_review.pdf#page=67, sets
forth a (needlessly) complicated procedure for telephonic
testimony. One might expect an immigration judge to have
reminded Bouras’s lawyer of the procedure, but of course he
did not. Or he could just have asked for her phone number
and called her. Immigration hearings are informal.
No. 14-2179                                                  25


     It could be argued that had Bouras wanted Jennifer to
testify, his lawyer would have asked the judge to issue a
subpoena, and he did not. But when could he have done
that? Until five days before the scheduled hearing he and his
lawyer expected her to appear voluntarily. When she said
she couldn’t appear because of her work, the lawyer sought
a continuance. When that was denied, it was too late to sub-
poena her. Nor is it at all clear that the immigration judge
would have issued a subpoena. For remember his fatalistic
declaration that “If the respondent’s wife could not come to
court because of her work, then she’s not able to come to
court.” Case closed.
     He may have believed that Bouras’s lawyer had failed to
ask his lawyer to ask that Jennifer be subpoenaed because he
feared that she would testify against him. But that is hardly
likely, as it would contradict her sworn affidavit and also
make her a party to a fraudulent marriage, which might in-
vite criminal prosecution.
    Incidentally, the affiants include not only Jennifer but al-
so her sister—the sister’s affidavit is particularly moving,
and as it is better written than the briefs of Bouras’s lawyer I
am persuaded that it was indeed written by her and reflects
her true beliefs. There is no reason to suspect that either she
or Jennifer would have any incentive to perjure themselves
in order to obtain citizenship for Bouras. What benefit could
they possibly derive from testifying in favor of an illegal
immigrant with whom they’ve had no relationship for
years? Bouras and his wife had separated in August 2008,
and the hearing was not until August of 2012. Since we
know that Bouras could not have bribed Jennifer to marry
him, she was in no danger of giving testimony that would
26                                                No. 14-2179


expose her to being prosecuted for being party to a fraudu-
lent marriage with an illegal immigrant.
     Jennifer would have been a key witness. Because the
case that the marriage was a sham was so flimsy to begin
with, her testimony could have put that theory to rest. She
had told Bouras’s lawyer that she wanted to testify on her
ex-husband’s behalf, and had she had an opportunity to tes-
tify and the immigration judge believed her testimony Bour-
as would be en route to becoming an American citizen.
     Her willingness to testify on his behalf further under-
mines the inference that the marriage was a fraud perpetrat-
ed by Bouras in order to obtain U.S. citizenship. Wouldn’t
she have known that by now, were it true? Wouldn’t the fact
that the government is trying to expel Bouras from the Unit-
ed States for contracting a fraudulent marriage get her think-
ing? Yet she has remained willing to testify that the marriage
was genuine, a proposition supported by her sister’s affida-
vit—and no one has suggested that the sister had a motive to
lie.
     I am perplexed by the statement in the majority opinion
that “Bouras never established that Schreiner’s testimony
would have been significantly favorable to him. The only
evidence we have of what she would have said is her affida-
vit. That affidavit does not undermine the judge’s findings
that the couple had no joint assets, that their purported tax
returns were suspect, and that Bouras had spent most of the
marriage apart from Schreiner either in Chicago or Algeria.”
This contradicts the earlier statement in the opinion that
“everyone recognizes that married couples may sometimes
need to live apart for a host of reasons. Still, an undocu-
mented alien’s brief marriage to a U.S. citizen, during which
No. 14-2179                                                  27


the couple spent little or no time together and kept their
property and finances separate, raises obvious warning signs
for immigration authorities” (citation omitted). I don’t get it.
Why would such a marriage be inconsistent with the ac-
knowledgment that “married couples may sometimes need
to live apart for a host of reasons”—in this case the hus-
band’s inability to obtain employment, comparable to his
Chicago job, in the state in which his wife was tied down by
her job and her children? Also, the suggestion in the passage
I just quoted that the couple may have spent no time togeth-
er is manifestly false. Nor did they spend “little” time to-
gether. Nor is it unusual for a married couple not to own
property jointly—and anyway there is no basis for thinking
that Bouras brought any assets to the marriage.
     I also don’t understand the statement in the majority
opinion that “there was no inherent inconsistency in the
immigration judge’s finding that Bouras had failed to meet
his burden of proof without making an affirmative finding
of a fraudulent marriage. To obtain the discretionary waiver,
Bouras had the burden of proving good faith. The govern-
ment has not taken the further step of trying to prove by
clear and convincing evidence that the marriage was in fact
fraudulent” (citations omitted). But if the marriage wasn’t in
good faith, that can only have meant that it was fraudulent.
If it was not fraudulent, it must have been in good faith.
(And how odd it is to place the burden of proof on the per-
son accused of fraud, rather than on the accuser. It’s as if I
could sue a person for fraud, present no evidence of fraud,
yet it would be his burden to persuade judge or jury that he
was not guilty of fraud.)
28                                                No. 14-2179


     The immigration judge should have explored the possi-
bility of a telephonic substitute for a continuance, but his
failure to do so isn’t critical. What is critical is his unex-
plained failure to recognize the existence of an extenuating
circumstance, though it was staring him in the face. Had he
noticed it he might have found some basis for deeming it in-
sufficiently extenuating, or decided that he should have been
told about it five days earlier, when Bouras’s lawyer learned
about it. Impatient and unsympathetic, he might think it apt
punishment for the lawyer’s mistake to order the lawyer’s
client deported. He failed to give even a minimally reasoned
basis for denying the requested continuance, and overlooked
the possibility of a telephonic alternative.
    The Board of Immigration Appeals did discuss the im-
migration judge’s denial of the continuance, saying that
“there is no explanation as to why [Bouras] waited until the
day of his scheduled individual hearing to advise that his ex-
wife was not available to testify in person,” or “why his ex-
wife was apparently not provided notice of the hearing until
a few days before it was scheduled to occur,” or “whether
she could provide testimony by phone or in-person on a date
that would not conflict with her work schedule,” and further
that “the record does not reflect that the Immigration Judge
denied the requested continuance solely out of concern for
case completion goals … . Rather, the Immigration Judge
correctly denied the requested continuance for a lack of
good cause.” And finally: Bouras “has not explained how his
ex-wife’s testimony would have helped him meet his burden
of proving that he entered their marriage in good faith.”
    The Board’s opinion is a garble. The comment about the
potential value or lack thereof of Jennifer’s testimony makes
No. 14-2179                                                  29


no sense. She was prepared to testify on Bouras’s behalf, and
since they’re divorced and he impecunious, she presumably
would be a truthful witness and one well positioned to un-
derstand at least ex post why he had married her. Her an-
swer to one question that the immigration judge might have
been expected to put to her—“would you still be married to
him if you two had agreed about having children and get-
ting rid of the dog?”—might have resolved the case one way
or the other.
    Earlier in this opinion I quoted the passage in which the
majority states that “Bouras never established that Schrein-
er’s testimony would have been significantly favorable to
him. The only evidence we have of what she would have
said is her affidavit. That affidavit does not undermine the
judge’s findings that the couple had no joint assets, that their
purported tax returns were suspect, and that Bouras had
spent most of the marriage apart from Schreiner either in
Chicago or Algeria.” Her testimony might well have under-
mined those points, but, more important (as those points are
not determinative), it would have offset them if her testimo-
ny would have persuaded the immigration judge that she
and Bouras had expected, and tried, to make a life together.
     He didn’t give her a chance to testify, because of his ar-
bitrary no-continuance rule, even though he thought her a
critical witness, saying: “the critical factor in all this case,
and what I, I, I find troubling, is respondent’s [having] ob-
tained, not only an affidavit from his ex-spouse, but [also
from] her sister and her father, stating that the respondent
was married to his daughter and that he visited them to-
gether and he saw them. He knew that his daughter was
married to the respondent. Plus, an affidavit from a friend.
30                                                  No. 14-2179


But they're not, they're not, they're not here to testify and ba-
sically, you know, I have to give the affidavits less weight
because anyone could feel sorry for the respondent and
write an affidavit. The motive to submit an affidavit on
someone’s behalf may be to help him out because he needs
the help for immigration purposes. But I really am forced to
decide the issue of whether or not the respondent has sub-
mitted sufficient evidence that he intended to make a life to-
gether with his spouse when they married. And the only real
evidence I see is the affidavit.”
    So less weight—fine. But he gave the affidavits no
weight, despite the weakness of the government’s evidence.
The majority opinion states that the denial of a continuance
must be upheld “‘unless it was made without a rational ex-
planation.’” The immigration judge’s denial was made with-
out a rational explanation. He said that his policy is to deny
a continuance asked for after he has scheduled a hearing
(even if it was scheduled six months earlier), unless there is
an emergency or an extenuating circumstances—there cer-
tainly was the latter, which he ignored completely. Where
was the rationality?
    Unlike its approach in Barma v. Holder, 640 F.3d 749, 751
(7th Cir. 2011), the Board in this case didn’t suggest that it
was substituting its own ground for denying relief for the
immigration judge’s ground; rather it was approving his
ground. The majority opinion states that “the Board’s rea-
sons are properly considered where, as here, the Board
agrees with the judge’s decision and provides its own sup-
plementary reasoning.” But I don’t see any supplementary
reasoning except for the comment that I called—justly, I
think—senseless (that Bouras “has not explained how his ex-
No. 14-2179                                                 31


wife’s testimony would have helped him meet his burden of
proving that he entered their marriage in good faith”). The
immigration judge’s sole ground for denying relief was that
Bouras’s hearing having been scheduled, a continuance to
allow his ex-wife to testify would not be granted in the ab-
sence of an extenuating circumstance. By basing denial of
relief on that ground, the immigration judge implied that
there was no extenuating circumstance in this case, but he
did not say so, and Jennifer’s inability to travel to Chicago
for several weeks was an extenuating circumstance that
could easily have been accommodated by asking her to testi-
fy telephonically. The immigration judge articulated no
“good cause,” as the Board erroneously thought he had, for
terminating the case without hearing from Jennifer. And the
Board produced no rational supplementation to the immi-
gration judge’s defective reasoning.
     What is true, and has turned out to be fatal for Bouras—
though it should not have been—is that his lawyer was lack-
luster. He didn’t notify the immigration judge promptly that
Jennifer would not appear. He did not suggest a telephonic
alternative to her appearing at the hearing in person. He did
not try to subpoena her. There are some first-rate immigra-
tion lawyers, especially at law schools that have clinical pro-
grams in immigration law, but on the whole the bar that de-
fends immigrants in deportation proceedings (the bar to
which Bouras’s lawyer in the proceeding in the Immigration
Court belongs, see “DiFranco Law—Practice Areas of Fo-
cus,” www.difrancolaw.com), is weak—inevitably, because
most such immigrants are impecunious and there is no gov-
ernment funding for their lawyers. This will not trouble
judges so enamored of the adversary system in its pristine
purity that they do not blanch when an imbalance in the
32                                                     No. 14-2179


skills of the adversaries’ lawyers produces an unjust result.
It’s not as if Bouras, deported to Algeria, will be in a position
to sue his American lawyer for malpractice.
     Judges are not just umpires. Nor are the judicial officers
of the Immigration Court and the Board of Immigration Ap-
peals. Judicial activism is deplored but there is such a thing
as excessive judicial passivity, which has been present at all
levels of adjudication of Bouras’s case.
    Bouras’s marriage to Jennifer Schreiner failed, but so far
as the record shows was bona fide. We should be heeding
the analysis of failed versus fraudulent marriage in Bark v.
INS, 511 F.2d 1200, 1201–02 (9th Cir. 1975) (citations omit-
ted):
     The concept of establishing a life as marital partners con-
     tains no federal dictate about the kind of life that the
     partners may choose to lead. Any attempt to regulate
     their life styles, such as prescribing the amount of time
     they must spend together, or designating the manner in
     which either partner elects to spend his or her time, in the
     guise of specifying the requirements of a bona fide mar-
     riage would raise serious constitutional questions. Aliens
     cannot be required to have more conventional or more
     successful marriages than citizens. Conduct of the parties
     after marriage is relevant only to the extent that it bears
     upon their subjective state of mind at the time they were
     married. Evidence that the parties separated after their
     wedding is relevant in ascertaining whether they intend-
     ed to establish a life together when they exchanged mar-
     riage vows. But evidence of separation, standing alone,
     cannot support a finding that a marriage was not bona
     fide when it was entered. … Couples separate, temporari-
     ly and permanently, for all kinds of reasons that have
     nothing to do with any preconceived intent not to share
No. 14-2179                                                       33


    their lives, such as calls to military service, educational
    needs, employment opportunities, illness, poverty, and
    domestic difficulties.
     We should grant the petition and vacate the removal or-
der. To refuse to do so is to ratify a prime example of admin-
istrative incompetence not limited to the immigration judge
and the Board of Immigration Appeals, for I cannot under-
stand the eagerness of the Department of Homeland Security
to challenge the legitimacy of Bouras’s marriage on such
flimsy evidence—an immigrant who has been in the United
States for almost 20 years, illegally to be sure (together with
millions of other immigrants), yet without engaging in other
unlawful activity or failing to earn a modest living by honest
labor.
