                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-21-2005

Cruz v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2936




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 04-2936


                                   LEONOR CRUZ,
                                           Petitioner


                                           v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                         Respondent


                         On Petition for Review of a Decision
                         of the Board of Immigration Appeals
                                (BIA No. A75-847-885)


                      Submitted under Third Circuit LAR 34.1(a)
                                    June 2, 2005

          BEFORE: FUENTES, GREENBERG, and COWEN, Circuit Judges

                                   (Filed: June 21, 2005)




                              OPINION OF THE COURT


GREENBERG, Circuit Judge.

      This matter comes on before this court on a petition for review of a decision and

order of the Board of Immigration Appeals (hereinafter “BIA”) entered on June 10, 2004,
affirming a decision and order of an immigration judge of July 20, 2001, denying

petitioner Leonor Cruz (“Cruz”) an adjustment of her status because she sought to obtain

the adjustment by fraud or misrepresentation of a material fact in violation of section

212(a)(6)(c)(i) of the Immigration and Nationality Act (hereinafter “INA”), 8 U.S.C. §

1182(a)(6)(c)(i). The INS charged that Cruz committed fraud when she contended that

she was entitled to an adjustment of her status on the basis of a fraudulent marriage to

Edwin Cruz, a United States citizen, that she entered into on March 7, 1997. Cruz sought

the adjustment because she was in this country illegally as she had overstayed the period

her visitor’s visa authorized for her presence here. But if she was guilty of fraud in

seeking the adjustment then she is subject to removal and would not be entitled to the

adjustment. See INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A). The BIA had

jurisdiction under 8 C.F.R. § 1003.1(b)(3) and we have jurisdiction under INA §

242(a)(1), 8 U.S.C. § 1252(a)(1). Inasmuch as the BIA summarily affirmed the

immigration judge’s order, we, in fact, are reviewing the judge’s order. See Dia v.

Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc).

       In view of the circumstance that there is no doubt that Cruz married Edwin Cruz at

a time when there were no legal impediments barring their marriage so that, as far as

appears, in a formal sense their marriage was valid, the government had the burden of

proof to demonstrate that the marriage, in fact, was fraudulent, a burden it met. See

Matter of Tawfik, 20 I & N Dec. 166, 170 (BIA 1990). At this time we review the



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immigration judge’s decision and order to determine if it was supported by substantial

evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1., 112 S.Ct. 812, 815 & n.1

(1992); Rodriguez v. INS, 204 F.3d 25, 27 (1st Cir. 2000). Cruz challenges the decision

and order, contending that the government did not meet its burden of proof with

substantial and probative evidence that the marriage was fraudulent.

       Cruz raises a second issue, charging that the immigration judge relied on hearsay

in making his determination that the government had met its burden of proof to establish

that she had entered into her marriage fraudulently for the purpose of evading the

immigration laws. According to Cruz, this reliance denied her due process of law. She

explains her factual predicate for this argument as follows: “the Immigration Judge

primarily based his finding that Leonor Cruz’s marriage to Edwin Cruz was a fraud from

its inception on the hearsay testimony of [District Adjudication Officer Christina] Gurko

regarding verbal statements allegedly made in English by Edwin Cruz to her during his

February 2000 interrogation.” Petitioner’s br. at 8-9. The parties advise us that this

testimony recounted Edwin Cruz’s statement at the type of hearing or interview to which

Stokes v. INS, 393 F. Supp. 24 (S.D.N.Y. 1975), refers prior to the hearing before the

immigration judge. At this Stokes hearing Edwin Cruz indicated that he married Cruz for

the sole purpose of permitting her to receive a green card facilitating her stay in the

United States. The respondent concedes that we review this issue de novo.

       We consider the hearsay evidence question first. There is no doubt but that the



                                              3
Federal Rules of Evidence do not apply in immigration removal proceedings.

Nevertheless, evidence cannot be admitted unless it is probative and unless its use is

fundamentally fair so that its admission does not deprive the alien of due process of law.

Ezeagwuna v. Ashcroft, 325 F.3d 396, 405-06 (3d Cir. 2003). Of course, we have

recognized that hearsay generally is inadmissible because the statement is not trustworthy.

United States v. Reilly, 33 F.3d 1396, 1409 (3d Cir. 1994). Thus, in some cases the use

of hearsay could be fundamentally unfair.

       In this case, however, the hearsay evidence surely was probative as it went to the

heart of the case. Moreover, we see no reason to doubt its reliability. After all, Edwin

Cruz was admitting to wrongful conduct when he gave his statement challenging the bona

fides of his marriage and the circumstances surrounding the giving of the statement

suggest it was accurate. Furthermore, inasmuch as Edwin Cruz is a United States citizen

he was not and is not subject to removal and thus it could not be contended reasonably

that he gave his statement to seek favorable treatment from the INS. Moreover, he was

present at the hearing before the immigration judge and available to testify and he, in fact,

did so. Thus, the immigration judge could and did ascertain the legitimacy of his earlier

statements to Gurka. Clearly, there was nothing fundamentally unfair in the use of

Gurka’s evidence regarding Edwin Cruz’s statement.

       On the merits of the case we see no reason to disturb the determination of the

immigration judge. We do comment, however, on one point. In her brief, Cruz claims



                                             4
that “the Immigration judge effectively shifted the burden of proof from the government

onto Ms. Cruz.” Petitioner’s br. at 10. This statement is simply not correct. Rather, the

judge analyzed all of the evidence and concluded, quite reasonably, “that the Government

has met its burden.” App. at 16. At bottom, this is a classic fact-based fraudulent

marriage case which was adjudicated in a manner completely fair to Cruz and in which

we cannot under our standard of review disturb the result.

       The petition for review of the order and decision of the BIA entered June 10, 2004,

will be denied.




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