                                    United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 92–4157

                                          Summary Calendar.

                                    Dele R. OLABANJI, Petitioner,

                                                    v.

                IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

                                              Oct. 1, 1992.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before REAVLEY, and DeMOSS, Circuit Judges.**

          AVLEY, Circuit Judge:

          An immigration judge (IJ) ordered Dele R. Olabanji deported after agreeing with the

Immigration and Naturalization Service (INS) that Olabanji married a United States citizen to gain

permanent resident immigration status. The Board of Immigration Appeals (BIA) affirmed the IJ's

order after ruling that the evidence established that Olabanji did not timely file a proper petition to

remove conditional permanent resident status as required by 8 U.S.C.A. § 1186a(c) (West

Supp.1992). We grant Olabanji's petition for review, vacate the deportation order against him, and

remand this case to afford Olabanji his statutory right to cross-examine INS' witnesses.



                                          I. BACKGROUND

          Olabanji is a Nigerian citizen. He entered the United States in 1983 as a nonimmigrant visitor

and married Karen D. Raines, a United States citizen, in September 1986. In accord with a July 1988

petition that Raines filed on Olabanji's behalf, INS changed Olabanji's immigration status to

"conditional permanent resident" as mandated by 8 U.S.C.A. § 1186a(a)(1) (West Supp.1992).



          Congress enacted section 1186a in 1986 to deter people from entering into fraudulent

   *
       This case is being decided by a quorum. 28 U.S.C. § 46(d).
marriages to gain residency in the United States. See H.R.Rep. No. 906, 99th Cong., 2d Sess. 6

(1986), reprinted in 1986 U.S.C.C.A.N. 5978. Section 1186a facilitates the detection of fraudulent

marriages by withholding permanent resident status from immigrants who marry United States

citizens unless these couples meet two conditions. First, within the 90 days that precede the second

anniversary of the date that the immigrant spouse receives conditional permanent resident status, the

couple must file a petition to remove the conditional character of the immigrant spouse's permanent

resident status. 8 U.S.C.A. § 1186a(c)(1)(A) (West Supp.1992). This petition must be timely filed,

signed by both spouses, and state the following: 1) the couple entered into the marriage in accord

with the law of the place of marriage; 2) no judge has annulled or terminated the marriage; 3) the

couple did not marry to procure immigration benefits; 4) each spouse's address during the two-year

period of conditional permanent residence; and 5) each spouse's place of employment during this

period. 8 U.S.C.A. § 1186a(c)(1)(A), (d) (West Supp.1992); 8 C.F.R. § 216.4(a)(1). INS collects

this information in its form I–751.



       As the second condition imposed by section 1186a, each couple must appear for an interview

with an INS official after they file their petition. 8 U.S.C.A. § 1186a(c)(1)(B) (West Supp.1992).

The INS official interviews the couple to determine the veracity of the statements that they made in

their petition. If the official determines that the statements are t rue, INS changes the immigrant

spouse's status from "conditional permanent resident" to "permanent resident." If the official

determines that the statements are false, INS terminates the immigrant spouse's conditional permanent

resident status; the immigrant spouse may challenge this determination in deportation proceedings.

8 U.S.C.A. § 1186a(c)(3) (West Supp.1992).



       Olabanji timely filed a completed form I–751 in June 1990 that bore his signature and

purportedly that of his wife, Raines. The two then timely appeared for their interview with INS

officer Linda Seeber on October 2, 1990. At the conclusion of this interview, Seeber terminated

Olabanji's conditional permanent resident status and prepared an order for Olabanji to show cause
why he should not be deported.



       At Olabanji's deportation hearing in August 1991, Seeber testified that she spoke with Raines

outside the presence of anyone else on October 2, 1990. Seeber testified that she drafted an affidavit

in Raines' name, based on Raines' statements during this interview, and had Raines review and sign

the affidavit. The IJ admitted Raines' affidavit over Olabanji's hearsay objection. The affidavit states

that Raines never signed the I–751 form that Olabanji submitted to the INS, that Raines only lived

with Olabanji for two months out of their four years of marriage, that she had lived in a separate state

from Olabanji for seventeen months and did not hear from him for sixteen of those months, and that

Olabanji promised her a divorce if she would come to the interview and answer questions as he

suggested.



       Seeber testified that she sent either the original or a copy of Olabanji's I–751 form and two

of Raines' signature standards to INS' forensic document laboratory. INS offered into evidence a

letter from forensic document analyst Claude E. Eaton, dated approximately two weeks before the

deportation hearing, stating that the person who signed Raines' name to the I–751 form was not the

same person who signed the signature standards. The letter recites Eaton's willingness to testify to

this finding at Olabanji's hearing, but INS made no effort to secure Eaton's testimony.



       Olabanji testified that his wife signed the I–751, that the information in the I–751 is true, and

that he and Raines were trying to resolve their marital difficulties. The IJ found Seeber a credible

witness and relied on her testimony, Raines' affidavit, and the forensic lab report to hold that INS

"met its burden of proving by a preponderance of the evidence that the marriage was entered into for

purpose of procuring [Olabanji's] entry as an immigrant and that he must be deported as a result."

The BIA considered no new evidence on appeal and affirmed the IJ's deportation order on an

alternative ground: "the preponderance of the evidence demonstrates that [Olabanji's] wife did not

sign the form I–751."
                                          II. DISCUSSION

        Olabanji argues that the IJ erred in admitting the statements of his wife and INS' forensic

document analyst as evidence against him without affording him an opportunity to cross-examine

them. The rules of evidence, including those that exclude hearsay, do not govern deportation

proceedings. Bustos–Torres v. I.N.S., 898 F.2d 1053, 1055 (5th Cir.1990). But immigration judges

must conduct deportation hearings in accord with due process standards of fundamental fairness. Id.

(citing Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 1452–53, 89 L.Ed. 2103 (1945)).

"Congress has set by statute certain standards a fair hearing must include...." Drobny v. I.N.S., 947

F.2d 241, 244 (7th Cir.1991) (emphasis added). Among these requirements is that people in

deportation proceedings "shall have a reasonable opportunity ... to cross-examine witnesses presented

by the Government." 8 U.S.C.A. § 1252(b)(3) (West Supp.1992); see also Gonzales v. Zurbrick,

45 F.2d 934, 937 (6th Cir.1930) ("The right to cross-examine even in deportation proceedings is a

constitutional one.").



        This court squarely holds that "the use of affidavits from persons who are not available for

cross-examination does not satisfy the constitutional test of fundamental fairness unless the INS first

establishes that despite reasonable efforts it was unable to secure the presence of the witness at the

hearing." Hernandez–Garza v. I.N.S., 882 F.2d 945, 948, (5th Cir.1989) (citations omitted).1 The

   1
     We recognize one other exception to the cross-examination right in section 1252(b)(3):
people may not assert a cross-examination right to prevent the government from establishing
uncontested facts. In Bustos–Torres, this court affirmed the BIA's deportation order when the
only evidence offered at the deportation hearing was a recorded recollection of an INS official's
interview of Bustos–Torres on an INS form which stated that Bustos–Torres is a citizen of
Mexico who entered the United States without inspection. 898 F.2d at 1055–56. This court
reasoned that where "Bustos does not contest that the [recorded recollection] reflects the [INS]
officer's examination, nor did he attempt to impeach the information on the form," and he pleaded
the Fifth Amendment rather than answer the IJ's questions concerning the information on the
form, the hearsay nature of the form is irrelevant to its admissibility in deportation proceedings.
Id. at 1056. The court refused to permit Bustos–Torres to assert a cross-examination right when
the record contained no indication that this right would have been of any use. Id.; see also
Calderon–Ontiveros v. I.N.S., 809 F.2d 1050, 1053 (5th Cir.1986) (IJ fundamentally fair in
admitting hearsay report that is cumulative of Calderon–Ontiveros' testimony when
Calderon–Ontiveros produced no evidence to refute anything in report). Through his own
testimony and his documentary evidence, Olabanji contested both the findings in INS' forensic
document analysis and the assertions in the Raines affidavit, so Bustos–Torres et al. does not
Ninth and Seventh circuits both follow this rule, and no court has ever disavowed it. See Cunanan

v. I.N.S., 856 F.2d 1373, 1375 (9th Cir.1988); Dallo v. I.N.S., 765 F.2d 581, 586 (6th Cir.1985);

Baliza v. I.N.S., 709 F.2d 1231, 1234 (9th Cir.1983) ("The purpose of [the cross-examination]

guarantee cannot be fulfilled ... if the government's choice whether to produce a witness or to use a

hearsay statement is wholly unfettered.").



        INS offered no explanation for why it did not present its forensic document analyst for

cross-examination at Olabanji's hearing, even though the analyst had offered to testify. Nor does the

record reflect any effort on INS' part to afford Olabanji an opportunity to cross-examine Raines.

Thus, the IJ ordered Olabanji deported after a fundamentally unfair hearing.



        INS argues that Olabanji was not prejudiced by the IJ's admission of Raines' affidavit and the

forensic report because Olabanji cross-examined Seeber. We disagree. Seeber had no independent

knowledge of the facts alleged in Raines' affidavit and the forensic report. At most she could have

testified as to the authenticity of these documents and what happened at the interview on October 2,

1990. Olabanji argues that Raines cannot write and did not understand her affidavit, that Seeber

procured her affidavit through coercion, that Raines lied to Seeber, or that some combination of these

three resulted in her contradictions of his testimony.2 Olabanji was only able to cross-examine Seeber

as to coercion, and he could have done this more effectively had he been allowed to compare her


undermine his cross-examination right.
   2
    Of course, in this case as in Baliza, the fact that, absent extremely severe coercion, a man's
wife would execute an affidavit that could well cause him to be deported indicates serious
problems in their relationship. But the law does not condition permanent resident status on a
harmonious marriage to a United States citizen. The marriage simply must 1) accord with the law
of the state where it took place, 2) continue in legal force through the time that immigrant spouse
asks for removal of the conditions from his permanent resident status, and 3) not have been
entered into for the purpose of immigration. 8 U.S.C.A. § 1186a(d)(1)(A) (West Supp.1992).
Nothing in the record suggests that Olabanji's marriage is illegal, null, or terminated. INS only
contends that Raines did not sign the I–751 and that Olabanji and Raines married for immigration
purposes. Olabanji admits that he and Raines presently have a strained relationship, but claims
that she signed the I–751 and that they married for love. The present animosity between Raines
and Olabanji does not render Olabanji's claim impossible, and it explains his need to cross-examine
Raines.
version of what transpired in the October 2, 1990 interview with Raines' explanation.



        This court considered a virtually identical set of facts in Hernandez–Garza. There, INS

offered the testimony of two of its officials to corroborate the affidavit of an absent witness and the

affidavit itself to establish an element of its case. After holding that INS expended inadequate effort

to secure the presence of the affiant, and thus compromised the hearing's fundamental fairness, the

court stated: "Without [the] affidavit the evidence of record falls far short of the required clear and

convincing level of proof." 882 F.2d at 948; see also Baliza, 709 F.2d at 1234 (admission of absent

wife's affidavit at deportation hearing requires vacation of deportation order where INS did little to

secure wife's presence at hearing "[e]ven if" officer who took affidavit would have testified).



        INS next argues that Olabanji knew of his wife's affidavit over a year before the hearing and

could have secured her presence at the hearing if he wanted to cross-examine her.                  But

Hernandez–Garza squarely places the burden of producing such witnesses on INS when it submits

affidavit testimony: "INS [must] first establish[ ] that despite reasonable efforts it was unable to

secure the presence of the witness at the hearing." 882 F.2d at 948; see also Cunanan, 856 F.2d at

1375 ("the controlling principle in this case [is that] the government must make a reasonable effort

in INS proceedings to afford the alien a reasonable opportunity to confront the witnesses against him

or her") (emphasis added). INS alone decides what evidence it will present to establish deportability,

and in doing so it alone must account for its ability to accommodate the cross-examination rights of

those whom it seeks to deport. Otherwise, INS' opponents, who, like Olabanji, often appear pro se

without language skills or experience in American conflict resolution, would be forced to appear

prepared to meet any possible evidence that INS decides to present. This requirement is not an

unreasonable obstacle when considered in light of the simple means courts have allowed INS to

satisfy its burden.3

   3
    Compare Dallo, 765 F.2d at 583, 586 (INS service of subpoenas on ex-wife sufficient effort
to support admissibility of ex-wife's affidavit) and Bachelier v. I.N.S., 625 F.2d 902, 904 (9th
Cir.1980) (sufficient effort where INS offered to move hearing to city where affiant lived, and IJ
                                       III. CONCLUSION

       We GRANT Olabanji's petition for review, VACATE the BIA's decision and order, and

REMAND this case to the BIA for further proceedings consistent with this opinion.




offered to permit petitioner's attorney to go depose affiant or send written interrogatories) with
Hernandez–Garza, 882 F.2d at 948 (INS testimony that it sent affiant residing abroad a letter
requesting presence at hearing, without production of a copy of the letter, insufficient evidence of
effort to provide cross-examination opportunity) and Baliza, 709 F.2d at 1234 (investigator's note
saying he went to affiant's last address and no one knew of affiant's whereabouts, without
investigator's testimony, insufficient evidence of effort when INS should have been aware for a
year that it needed to call affiant).
