                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       MAY 14 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MARIA RITA CASTILLO, AKA Maria                  No.    18-70861
Rita Moreno Velasquez,
                                                Agency No. A075-647-037
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                               Submitted May 5, 2020**
                                 Pasadena, California

Before: GOULD and CHRISTEN, Circuit Judges, and HELLERSTEIN,*** District
Judge.

      Maria Rita Castillo petitions for review of the decision of the Board of

Immigration Appeals (“BIA”) dismissing her appeal from the Immigration Judge’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
(“IJ”) removal order. We have jurisdiction under 8 U.S.C. § 1252. We review due

process claims de novo. Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014).

We review factual findings for substantial evidence. Nakamoto v. Ashcroft,

363 F.3d 874, 881 (9th Cir. 2004). Under the substantial evidence standard, factual

findings are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary. Id. at 881–82. The government has the burden of proof

to establish removability by clear and convincing evidence. 8 U.S.C.

§ 1229a(c)(3)(A). Combining these standards, we consider whether substantial

evidence supports a finding by clear and convincing evidence that Castillo entered

into a fraudulent marriage in order to obtain her status as a permanent resident.

Nakamoto, 363 F.3d at 882. We deny the petition for review.

      Castillo is a native and citizen of Mexico. She married Ruben Castillo

(“Ruben”), an American citizen, and adjusted to Legal Permanent Resident status

based upon the marriage. Almost 12 years after their ceremony of marriage,

Castillo and Ruben divorced. Around the time of the divorce, Ruben called a

Department of Homeland Security (“DHS”) tip line and reported that the marriage

was a fraud entered into for immigration purposes. DHS Officer Elias Valdez

investigated the tip and interviewed both Castillo and Ruben. According to Officer

Valdez’s Summary of Findings, Castillo admitted to marriage fraud and admitted

to being in a relationship with Sophie Durant, Ruben’s aunt. Ruben alleged that


                                          2
Durant offered him $5,000 to marry Castillo. Based on this information, DHS

filed a Notice to Appear charging Castillo with removability under 8 U.S.C.

§ 1227(a)(1)(A).

      Castillo’s due process rights were potentially violated when the IJ admitted

Ruben’s affidavit without any effort from the government to secure his in-person

testimony. An alien facing removal is entitled to “a full and fair hearing of [her]

claims and a reasonable opportunity to present evidence on [her] behalf.”

Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir. 2009) (alteration in original)

(quoting Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)). Although the rules

of evidence do not apply in immigration proceedings, “the government’s choice

whether to produce a witness or to use a hearsay statement [is not] wholly

unfettered.” Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 681 (9th Cir.

2005) (quoting Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir. 1997)). The

government may not use an affidavit from an absent witness without making

“reasonable efforts . . . to secure the presence of the witness at the hearing.” Id.

(quoting Ocasio v. Ashcroft, 375 F.3d 105, 107 (1st Cir. 2004)). In this case,

because the government made no effort whatsoever to secure Ruben’s in-person

testimony, the admission of Ruben’s affidavit was fundamentally unfair and, if

there had been prejudice, Castillo would have suffered a due process violation. See




                                           3
id. (explaining that the test for proper admission of a hearsay affidavit is whether

the statement is probative and the admission is fundamentally fair).

      Although Castillo’s due process rights were potentially violated, her due

process claim fails because she did not show the necessary prejudice. See

Zolotukhin v. Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005) (requiring a showing

of prejudice to grant a petition for review on due process grounds). There was no

prejudice because even if Ruben had testified in person, the outcome of the

proceedings would not have been different. Id. Castillo introduced—and the IJ

considered—extensive evidence impeaching Ruben’s credibility, including

testimony about his drug use and reputation for lying, and records of his criminal

convictions. Despite this evidence, the IJ credited Ruben’s version of the

marriage, which confirmed Castillo’s admission to Officer Valdez. Furthermore,

even without Ruben’s affidavit, there was substantial evidence of marriage fraud.

Officer Valdez testified that he had an independent recollection of an interview

with Castillo in which she admitted to marriage fraud. Because the outcome of the

proceedings would not have been different absent the due process violation,

Castillo cannot show prejudice and her due process claim fails.

      Substantial evidence supports a finding that the government proved

removability by clear and convincing evidence because both Castillo and Ruben




                                          4
admitted to marriage fraud. The IJ and the BIA credited these admissions, and the

record does not compel a contrary conclusion. See Nakamoto, 363 F.3d at 881–82.

      PETITION DENIED.




                                        5
