                                 In the

     United States Court of Appeals
                   For the Seventh Circuit
No. 12-1665

MARIA EMILOVA POUHOVA,
                                                             Petitioner,

                                   v.


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

                     Petition for Review of an Order
                 of the Board of Immigration Appeals.
                            No. A078-859-072


    ARGUED DECEMBER 4, 2012 — DECIDED AUGUST 13, 2013


   Before BAUER and HAMILTON, Circuit Judges, and THARP,
District Judge.*
    HAMILTON, Circuit Judge. Petitioner Maria Pouhova, a
citizen of Bulgaria, has been ordered removed from the United
States. She argues she was deprived of her procedural rights


*
  Hon. John J. Tharp Jr. of the Northern District of Illinois, sitting by
designation.
2                                                             No. 12-1665

when an immigration judge admitted and based his decision
on two hearsay documents: a statement taken from a woman
who attempted to enter the United States using Pouhova’s
Bulgarian passport, and a Department of Homeland Security
inspector’s report of his conversation with the woman pre-
pared seven years after it occurred. Pouhova petitions for
review of the Board of Immigration Appeals’ decision affirm-
ing the immigration judge’s removal order. Although the
Federal Rules of Evidence do not apply in removal hearings,
there are several substantial reasons why both documents are
not reliable and should not have been used without Pouhova’s
having an opportunity to cross-examine the declarant or
author. We therefore agree with Pouhova that use of both
documents violated her procedural rights. The order of
removal must be vacated and her case remanded for a new
hearing.
I. Factual and Procedural Background
    Maria Pouhova is a Bulgarian citizen who entered the
United States on a student visa in 1999. She overstayed her visa
but married a U.S. citizen and applied for an adjustment of
status. Pouhova received a Notice to Appear for removal
proceedings in October 2007. It alleged three grounds for
removal, but the only one of consequence at this point is a
smuggling charge for assisting an alien trying to enter the
United States illegally. See 8 U.S.C. § 1227(a)(1)(E)(i).1


1
  The other two grounds are no longer at issue. Pouhova conceded that she
was inadmissible for failing to maintain non-immigrant status after her
student visa expired, see 8 U.S.C. § 1227(a)(1)(C)(i), but her marriage to a
                                                               (continued...)
No. 12-1665                                                               3

    At her removal hearing, the government presented two
documents as its only evidence to support the smuggling
charge. The first is a written statement from the woman who
attempted to use Pouhova’s Bulgarian passport to enter the
United States back in 2000. The woman, who gave the name
Boriana Dimova, arrived at O’Hare Airport on June 21, 2000
and gave a statement to an immigration official, Inspector
Bryan Weiler. The statement consists of 30 questions by Weiler
and Dimova’s responses. The document states that it was taken
in English but without an interpreter due to lack of funding.
Dimova’s responses indicated that she presented a passport
with Pouhova’s information on it and that the information and
passport did not belong to her. For our purposes, the key
questions and answers were:
      Q21: Did anyone assist you in obtaining your pass-
      port?
      A21: Nataliy. She lives in the U.S.
      Q22: What is the name of the person who sold you
      this passport?
      A22: Nataliy sent me it.
      Q23: How much did you pay for this passport?
      A23: I didn’t pay anything yet.



1
  (...continued)
U.S. citizen would permit a waiver of that problem. The immigration judge
found that the government failed to prove that Pouhova falsely held herself
out as a U.S. citizen in a mortgage loan application, see 8 U.S.C.
§ 1227(a)(3)(D)(i), and the government did not contest that finding further.
4                                                  No. 12-1665

     Q24: Do you still owe money to the people who
     arranged for you to travel to the United States
     today?
     A24: I will pay Maria Puohova (sic) $1500 later, after
     I begin working in U.S.
     …
     Q28: Who are your intended contacts in the United
     States?
     A28: Nataliy and Maria Puohova (sic).
    The second document is a Department of Homeland
Security record, Form I-213, which is a “record of deportable
alien.” Like the Dimova statement, it was also prepared by
Inspector Weiler, but more than seven years later, on
October 25, 2007. It includes Weiler’s account of the grounds
for Pouhova’s removability and reports on his 2000 interview
with Dimova:
     On June 21, 2000, Boriana DIMOVA, the subject’s
     relative, was issued an Order of Expedited Removal
     upon arrival at Chicago, IL attempting to enter the
     U.S. with POUHOVA’s Bulgarian passport and non-
     immigrant student visa. DIMOVA stated under oath
     that POUHOVA mailed her the passport.
     POUHOVA arranged for DIMOVA’s travel as an
     impostor to her passport and was to be paid $1500
     U.S. dollars by DIMOVA … . POUHOVA lost her
     Bulgarian passport in January 2002, but this contra-
     dicts the fact that DIMOVA had it in her possession
     when apprehended on June 21, 2000. Based on birth
No. 12-1665                                                              5

      certificate data, POUHOVA and DIMOVA appear to
      be cousins.
    Pouhova challenged the admission of the Dimova state-
ment and the Form I-213 as unreliable because Dimova was
apparently not fluent in English and no interpreter was
available, and as too prejudicial to be admitted without the
opportunity to cross-examine Dimova. The government
offered to present Weiler as a witness to testify about the
circumstances surrounding the interview.
    At the first hearing, the judge declined to admit or take any
action on the documents or the objection and continued the
hearing to give the government time to arrange for Weiler to
appear and to make reasonable efforts to locate Dimova, who
had been removed to Bulgaria. At the second hearing, the
government did not produce either Dimova or Inspector
Weiler. Nevertheless, the immigration judge admitted and
considered both the I-213 form and the recorded Dimova
statement. IJ Decision at 7, 9; App. 17, 19.2
   Pouhova testified on her own behalf. She denied giving her
passport to anyone. Instead, she testified that she lost it but did
not discover it was missing until late 2001 or early 2002, after
she had married a U.S. citizen and looked for her passport to
apply for adjustment of status. She explained that she had been
advised to store her passport and other important documents

2
   The immigration judge’s decision (“IJ Decision”), the Board’s 2010
decision (“BIA 2010”), and the Board’s 2012 decision (“BIA 2012”) can be
found in the Appellant’s appendix. The appendix is not clearly paginated,
so we cite both the pages of each decision and the pages in the appendix as
a whole.
6                                                             No. 12-1665

in a special folder in her home. She had not looked in the folder
since 1999 because she had other forms of identification and
did not use her passport. She also denied knowing of any
Boriana Dimova and had no relative with that name. She also
testified that she had not heard of the use of her Bulgarian
passport until 2004 when U.S. authorities denied her applica-
tion for adjustment of status. On these points the government’s
cross-examination of Pouhova was perfunctory and did not
undermine her credibility.
    The immigration judge ultimately decided to credit both of
the government’s documents and found that Pouhova’s
contrary testimony was not credible. The judge found that the
government showed by clear and convincing evidence that
Pouhova assisted in smuggling an alien into the United States.
This finding rendered Pouhova inadmissible and removable.
See 8 U.S.C § 1182(a)(6)(E)(i); § 1227(a)(1)(E)(i).3 It also ren-
dered Pouhova ineligible for discretionary relief from removal
in the form of adjustment of status, which would otherwise
have been available to her because of her marriage to a U.S.
citizen.4 In the alternative, the immigration judge found that


3
   Inadmissibility and removability are distinct designations under the
immigration laws. An alien is “inadmissible” if the government may
prevent her from entering or reentering the United States or if she is present
in the United States without having been lawfully admitted. See 8 U.S.C.
§ 1182(a) (grounds for inadmissibility). An alien is “removable” if she has
violated the immigration laws, even if she had been lawfully admitted. See
8 U.S.C. § 1227(a) (grounds for removability).

4
    Although Pouhova conceded inadmissibility for not maintaining her
                                                        (continued...)
No. 12-1665                                                                7

even if she were not inadmissible for smuggling, she would not
merit a favorable exercise of discretion and he would deny her
adjustment of status.
     Pouhova appealed to the Board of Immigration Appeals. In
the course of two opinions, the Board affirmed the decision of
the immigration judge.5 The Board’s modified decision held:
(a) that the immigration judge’s adverse credibility determina-
tion about Pouhova’s testimony was not clearly erroneous, (b)
that the admission of the I-213 and the Dimova statement did
not violate Pouhova’s procedural rights, (c) that the govern-
ment met its burden of showing that Pouhova was inadmissi-
ble and removable for smuggling, and (d) that Pouhova did
not merit a favorable exercise of discretion. Pouhova petitioned
for review in this court, arguing that the admission of the two

4
  (...continued)
student visa, adjustment of status would still be available to her because of
her marriage to a U.S. citizen, so long as the judge found that she merited
a favorable exercise of discretion. See 8 U.S.C. § 1255(c)(2) (adjustment of
status not available to those who work without authorization or who are in
unlawful immigration status, unless the alien is an immediate relative
under 8 U.S.C. § 1151(b) (which includes spouse) of a U.S. citizen); 8 U.S.C.
§ 1229a(c)(4)(A).

5
  The Board issued an opinion on November 26, 2010, but after Pouhova
sought judicial review the government moved this court to remand the case
to the Board for further clarification of whether the proceedings violated
Pouhova’s process rights. We granted the motion and remanded to the
Board. Pouhova v. Holder, Order, No. 10-3864 (7th Cir. May 13, 2010). On
remand the Board affirmed its prior decision and supplemented it in a
modified opinion issued on February 27, 2012. This procedural history is
not relevant to the present issues. We consider the ultimate determinations
of the Board as expressed in both opinions.
8                                                   No. 12-1665

documents violated her procedural rights in removal proceed-
ings.
II. Analysis
    Aliens in removal proceedings are entitled to due process
of law under the Fifth Amendment. Reno v. Flores, 507 U.S. 292,
306 (1993). Statutory provisions also impose procedural
requirements on removal proceedings. See 8 U.S.C.
§ 1229a(b)(4). Any proceeding that meets the requirements of
the statute also satisfies constitutional due process. Rehman v.
Gonzales, 441 F.3d 506, 508 (7th Cir. 2006). Because Pouhova
does not challenge the constitutional adequacy of the statutory
rights, we focus our analysis on those statutory rights. See
Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010) (focus should
be on statutes and relevant regulations).
    Under section 1229a(b)(4)(B), an alien in removal proceed-
ings “shall have a reasonable opportunity to examine the
evidence against the alien, to present evidence on the alien’s
own behalf, and to cross-examine witnesses presented by the
Government.” An alien who challenges a removal order by
claiming a violation of these rights must show both that the
proceeding did not meet these requirements and that she was
prejudiced. Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th
Cir. 2007).
     Evidence in removal proceedings need not conform strictly
to the Federal Rules of Evidence, but it must be probative and
its admission must be “fundamentally fair.” Barradas v. Holder,
582 F.3d 754, 762 (7th Cir. 2009). The fairness of a piece of
evidence depends in part on its reliability. Duad v. United
States, 556 F.3d 592, 596 (7th Cir. 2009) (despite flexibility of
No. 12-1665                                                      9

evidentiary rules in removal proceedings, “evidence must, in
the final analysis, be reliable”); see also Aslam v. Mukasey,
537 F.3d 110, 114 (2d Cir. 2008) (fairness in the context of
evidence is “closely related to the reliability and trustworthi-
ness of the evidence”) (internal quotations omitted); Anim v.
Mukasey, 535 F.3d 243, 256 (4th Cir. 2008) (same).
    Because the Board ultimately agreed with the immigration
judge’s decision and supplemented that opinion with its own
observations, we review both the immigration judge’s and the
Board’s decisions. See Sirbu v. Holder, 718 F.3d 655, 658 (7th Cir.
2013). We have jurisdiction to review final orders of removal
under 8 U.S.C. § 1252(a). To the extent Pouhova challenges the
denial of discretionary relief, we retain jurisdiction to review
the constitutional and legal claims she raises in her petition for
review. 8 U.S.C. § 1252(a)(2)(D). We review de novo the legal
question whether the admission of each document violated
Pouhova’s procedural rights in a removal proceeding and, if
so, whether those admissions prejudiced her. Gutierrez-
Berdin v. Holder, 618 F.3d 647, 651 (7th Cir. 2010).
    We conclude that both documents violated Pouhova’s
statutory procedural rights. As hearsay, neither document was
reliable enough to be fairly admitted without the opportunity
for Pouhova to cross-examine either the declarant or the
questioner/scribe. The Dimova statement was taken in English
without an interpreter, and Pouhova had no opportunity to
question either Dimova or Inspector Weiler about Dimova’s
English language abilities. The I-213 was written seven years
after the conversation it reports on took place, it is inconsistent
with the Dimova statement in significant ways, and its sources
10                                                  No. 12-1665

are unreliable. Because the two unreliable documents were the
government’s only evidence of the smuggling charge, their
admission without any opportunity for cross-examination of
Dimova or Weiler prejudiced Pouhova. We must remand for
a new removal hearing.
     A. Unreliable Hearsay
        1. The Dimova Statement
    Both the immigration judge and the Board deemed the
Dimova statement properly admissible in Pouhova’s removal
proceedings. We disagree. The interview was conducted in
English without an interpreter. There was no evidence about
Dimova’s English language skills, and Pouhova did not have
the opportunity to cross-examine either Dimova or the
interviewing officer about Dimova’s ability to participate in the
interview.
    The Fifth Circuit addressed a similar situation in Hernandez-
Garza v. I.N.S., 882 F.2d 945 (5th Cir. 1989), when it considered
an ex parte affidavit by a witness who could not read or speak
English. The immigration judge did not permit the petitioner
to question the agents who took the affidavit about their
Spanish skills. The Fifth Circuit held that this denied the
petitioner a fair hearing, noting that “the probative value of
statements written in a language that the witness can neither
read nor speak, absent corroboration, is questionable at best.”
Id. at 948 (internal quotations omitted), citing Guzman-
Guzman v. I.N.S., 559 F.2d 1149, 1150 (9th Cir. 1977) (written
witness statements by “authors who neither spoke nor read the
language in which they were written,” which the authors
disclaimed at the live hearing, were unfairly admitted in
No. 12-1665                                                     11

removal hearing, but testimony of agents provided sufficient
corroboration). Other courts have found that the reliability of
a statement decreases when it reports on a conversation
hindered by language barriers. See Gonzalez-Gomez v. I.N.S.,
450 F.2d 103, 105 (9th Cir. 1971) (document unreliable where
alien could not speak or read English and could not read
Spanish, and interviewer’s Spanish skills were unknown).
    In the asylum context, we have said that airport interviews
“are useful only if they are reliable.” Jamal-Daoud v. Gonzales,
403 F.3d 918, 923 (7th Cir. 2005). An interview may not be
reliable where significant language barriers exist, even when a
translator is used. Balogun v. Ashcroft, 374 F.3d 492, 504–05 (7th
Cir. 2004) (reliability concerns the applicant’s “ability to answer
the interviewer’s questions,” for example, “if there are lan-
guage barriers”), citing Ramsameachire v. Ashcroft, 357 F.3d 169,
180 (2d Cir. 2004) (listing factors for considering reliability of
airport interviews, including “if the alien’s answers to the
questions posed suggest that the alien did not understand
English or the translations provided by the interpreter, the
alien’s statements should be considered less reliable”).
    The government argues that the statement is sufficiently
reliable as hearsay because it was against Dimova’s penal
interest. See Matter of Devera, 16 I. & N. Dec. 266, 270 (BIA 1977)
(ex parte affidavit admissible where it included statement
against penal interest as it would have been admissible under
the Federal Rules of Evidence). That argument is not persua-
sive here for two reasons. First, it is circular. Whether the
answers recorded by Inspector Weiler were against Dimova’s
penal interest or not says nothing about whether she under-
12                                                          No. 12-1665

stood the questions and he understood her answers as she
intended them. Second, it is not clear what additional penalties
Dimova’s statements implicating Pouhova exposed her to
beyond immediate removal, which she already faced.6 She had
already been caught attempting to use the passport and visa of
another person. Her further claim that she planned to pay
Pouhova $1,500 served to implicate only Pouhova, not
Dimova. Cf. Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674,
682 (9th Cir. 2005) (witness “was herself at risk of a felony
prosecution under 8 U.S.C. § 1326 because she had previously
been deported and had reentered the country illegally. Thus
she was not, by any means, a disinterested witness.”). In any
event, the uncertainty and lack of testimony about Dimova’s
English skills without an interpreter render the report unreli-
able, whether against penal interest or not. It was not funda-
mentally fair to admit the statement without an opportunity
for Pouhova to question Dimova or Weiler about Dimova’s
ability to participate in the interview.
        2. Form I-213
    The immigration judge gave “full weight” to the I-213, IJ
Decision at 9; App. 19, and the Board affirmed, finding that the
I-213 was “probative and its use fundamentally fair.” BIA 2012
at 3; App. 4. We disagree with both the Board and the immigra-
tion judge.


6
  Dimova was subject to expedited removal proceedings and was removed
the day after her interview. In the expedited removal process, an alien may
be charged with an additional ground of inadmissibility for misrepresenta-
tion, 8 C.F.R. § 235.3(b)(3), but that would not amount to an additional
punishment because she was already removable.
No. 12-1665                                                     13

     Form I-213, Record of Deportable Alien, is a DHS form that
is typically a record of an immigration inspector’s conversation
with an alien who will probably be subject to removal. See
Rosendo-Ramirez v. I.N.S., 32 F.3d 1085, 1088 (7th Cir. 1994). As
a general rule, a Form I-213 is treated as inherently trustworthy
and admissible even without the testimony of the officer who
prepared it. Barradas v. Holder, 582 F.3d 754, 763 (7th Cir. 2009),
citing In re Ponce-Hernandez, 22 I. & N. Dec. 784, 785 (BIA 1999).
    In a specific case though, a particular Form I-213 may not
be inherently reliable. For example, it may contain information
that is known to be incorrect, it may have been obtained by
coercion or duress, it may have been drafted carelessly or
maliciously, it may mischaracterize or misstate material
information or seem suspicious, or the evidence may have been
obtained from someone other than the alien who is the subject
of the form. See Barradas, 582 F.3d at 763–64 (listing reasons I-
213 may not be inherently reliable); Rosendo-Ramirez, 32 F.3d at
1088 (“Since the I-213 is supposed to be a record of a conversa-
tion with an alien, courts have evaluated its probative value by
considering whether there is evidence that the form is inaccu-
rate or that the information recorded in it was obtained by
someone other than the alien himself.”).
   The I-213 here exhibits several shortcomings that under-
mine the usual presumption of reliability, none of which were
addressed by the Board. First, the seven-year lapse between the
reported conversation and the preparation of the I-213 calls the
form’s “inherent reliability” into serious doubt. The govern-
ment argues that an I-213 is inherently reliable without its
author’s testimony because it is comparable to a record of a
regularly conducted activity under the hearsay exception in
14                                                    No. 12-1665

Federal Rule of Evidence 803(6). See Barradas, 582 F.3d at 763
(reasoning that where statement was recorded by DHS agent
in a public record, the absent agent “cannot be presumed to be
an unfriendly witness or other than an accurate recorder,” and
that the I-213 was intended to serve purely as an impartial
administrative record) (internal quotations omitted). Such a
record loses its credibility if it is prepared long after the events
or statements it purports to capture. See Fed. R. Evid. 803(6)(A)
(excepting from the general prohibition of hearsay evidence
records of a regularly conducted activity only if “the record
was made at or near the time by—or from information transmit-
ted by—someone with knowledge”) (emphasis added); see also
United States v. Lemire, 720 F.2d 1327, 1350 (D.C. Cir. 1983)
(“The lengthy interval between the time the memorandum was
written, and some of the events it describes (one year and ten
months) does not meet the exception’s ‘timeliness require-
ment,’ and therefore it is not admissible under Rule 803(6).”).
Although removal proceedings are not held strictly to the
standards of the Federal Rules of Evidence, of course, the
staleness of this I-213 undermines the presumption of reliabil-
ity. The delay rendered the report too susceptible to errors,
material omissions, and mistaken insertions.
   This I-213 in fact exhibited strong indications of such
inaccuracies: it differs from the Dimova statement in several
important respects. The I-213 states that Dimova said that
Pouhova mailed her the passport, but the Dimova statement
said that “Nataliy sent me it.” The I-213 claims that Pouhova
arranged for Dimova’s travel, but the Dimova statement does
not include a direct statement about who arranged for her
travel. Rather, the I-213 appears to have read a great deal into
No. 12-1665                                                      15

Dimova’s recorded response to the question “Do you still owe
money to the people who arranged for you to travel to the
United States today?” Dimova answered, “I will pay Maria
Puohova [sic] $1500 later … .” That non-responsive answer
does not indicate that Pouhova arranged for her travel; it
indicates only that Dimova planned to pay her. The I-213 also
asserts that Pouhova and Dimova were cousins, but there is no
support for that assertion in Dimova’s answers to questions
and no other apparent basis for it. (Pouhova testified that
Dimova is a common family name in Bulgaria.) All of these
discrepancies indicate at the very least that the form was
“drafted carelessly” and is not inherently reliable. See Barradas,
582 F.3d at 763.
    There is a final fault with the I-213’s reliability—its sources.
First, it appears to rely in relevant part on Dimova’s airport
statement, which we have already determined was unreliable
because it was taken without a translator and no one was
available to testify about Dimova’s ability to participate in the
interview. Second, most I-213s are records of conversations
with the alien who is the subject of the removal proceedings,
and they report the conversations as evidence of that alien’s
removability. This I-213 recorded a conversation not with
Pouhova, who was the subject of the form and the removal
proceedings, but with Dimova. This is a significant difference
because neither party to the conversation was present at
Pouhova’s removal proceedings. In a more typical case, the
subject herself will have some basis to contest the statements
in the document. She will have been present for the conversa-
tion that was reported.
16                                                    No. 12-1665

    We have not found, and the parties have not cited, any
examples of a court affirming the admission of an I-213 under
circumstances like these. Basing a removal decision on such a
document when neither the author nor the interviewee is
available for cross-examination seriously erodes the fairness of
the proceeding. Cf. Rosendo-Ramirez, 32 F.3d at 1088 (I-213
admissible despite petitioner’s objections that information it
contained was obtained from others in group interview where
petitioner could have made the statements himself and
presented no evidence that he did not, and where recording
officer was present for cross-examination at the hearing). This
I-213 therefore was not inherently reliable because it was
recorded seven years late, its critical information was obtained
from someone other than the subject of the form, and it
contradicts the other written account of its source.
     B. “Reasonable Efforts”
    Despite the unreliability of both documents, the govern-
ment argues that the Board correctly found that both were
fairly admitted because the government made “reasonable
efforts” to locate both witnesses. It argues that we should join
other circuits in finding that an absent witness’s statements
may be fairly admitted in a removal proceeding when the
government has made reasonable but unsuccessful efforts to
locate the witness. See, e.g., Ocasio v. Ashcroft, 375 F.3d 105, 107
(1st Cir. 2004) (“the INS may not use an affidavit from an
absent witness unless the INS first establishes that, despite
reasonable efforts, it was unable to secure the presence of the
witness at the hearing”) (internal quotations omitted); see also
Saidane v. I.N.S., 129 F.3d 1063, 1065 (9th Cir. 1997); Olabanji v.
I.N.S., 973 F.2d 1232, 1234 (5th Cir. 1992); Dallo v. I.N.S.,
No. 12-1665                                                    17

765 F.2d 581, 586 (6th Cir. 1985); Matter of Devera, 16 I. & N.
Dec. 266, 269 (BIA 1977). Our circuit has not formally adopted
this rule. See Malave v. Holder, 610 F.3d 483, 487 (7th Cir. 2010)
(recognizing that “[s]everal circuits have concluded that, when
an alien wants to cross-examine a witness, the agency not only
must issue a subpoena but also must use reasonable efforts to
enforce that subpoena,” but finding no need to decide whether
to adopt the standard because the government had not met it).
    We have serious doubts about this “reasonable efforts”
theory, at least as it might apply to this case, where the two
hearsay documents bear so many indicia of unreliability. We
do not see why making an unsuccessful effort to locate a
witness renders the unreliable hearsay evidence any more
reliable or its use any fairer than without such effort.
    But we need not resolve this question here. Even if we
assume that “reasonable efforts” to locate the witnesses would
suffice, the government failed to make such reasonable efforts
here. Cf. Malave, 610 F.3d at 487. With regard to Inspector
Weiler, the government admitted that it chose not to call him,
given circumstances that the government chose not to explain.
AR 220–21. “Choosing” not to call him does not amount to
“reasonable efforts” to secure his testimony, and any such
efforts do not redeem the admission of this I-213. Accord,
Saidane, 129 F.3d at 1065 (where “the INS made no effort to call
an admittedly available witness and relied instead on that
witness’s damaging hearsay affidavit,” admission of the
affidavit rendered hearing fundamentally unfair). With regard
to Dimova, the government checked various databases and
found no indication that she had returned to the United States.
Even if the government made reasonable efforts to locate her,
18                                                No. 12-1665

though, that is not the relevant question. Rather, the govern-
ment needed to locate only a witness who could testify to her
language skills during the interview, which clearly included
Inspector Weiler. Its efforts to ensure that Dimova had not
reentered the United States were not sufficient where it also
failed to make reasonable efforts to have Weiler testify.
    In sum, it was not fundamentally fair to admit either the
Dimova statement or the I-213. Both were unreliable hearsay,
and Pouhova was denied a reasonable opportunity to cross-
examine both witnesses. Even if we agreed with the “reason-
able efforts” rule, the government failed to make reasonable
efforts to secure the presence of Inspector Weiler or of any
witness who could speak to Dimova’s ability to participate in
the interview.
     C. Prejudice
   These two unreliable hearsay documents were the govern-
ment’s only evidence supporting the smuggling charge and the
only basis for questioning Pouhova’s credibility. Their admis-
sion seriously prejudiced Pouhova’s ability to show she was
not removable for smuggling. Cf. Pronsivakulchai v. Gonzales,
461 F.3d 903, 908-09 (7th Cir. 2006) (denial of reasonable
opportunity to present evidence in removal proceedings
prejudiced petitioner because it affected the outcome of her
hearing). Pouhova was thus deprived of her statutory rights
under 8 U.S.C. § 1229a(b)(4)(B).
     D. Remaining Issues
   Because Pouhova was denied a “reasonable opportunity”
to cross-examine the witnesses against her in violation of
No. 12-1665                                                                19

8 U.S.C. § 1229a(b)(4)(B) and the evidence admitted against her
was fundamentally unfair, we must remand for a new hearing
that comports with her constitutional, statutory, and regula-
tory procedural rights. See Cinapian v. Holder, 567 F.3d 1067,
1074 (9th Cir. 2009) (“Remand is generally necessary when an
alien is prevented from reasonably presenting her case or when
an IJ’s actions prevent the introduction of significant testi-
mony.”).
     We also vacate the Board’s findings of Pouhova’s credibil-
ity, removability, inadmissibility, and ineligibility for discre-
tionary relief. All of those findings were based on the evidence
that was improperly admitted. The finding that she was
removable and inadmissible on account of the smuggling
charge cannot stand if the government’s evidence supporting
the charge was admitted unfairly. The finding that Pouhova
did not merit a favorable exercise of discretion must also be
vacated because the evidentiary errors made by the immigra-
tion judge affected the entire hearing process and outcome,
including the discretionary determination.7

7
  The government argues that we do not have jurisdiction to review the
determination that she was not eligible for discretionary relief. We do not
have jurisdiction to review a discretionary denial of adjustment of status,
see 8 U.S.C. § 1252(a)(2)(B), but “[o]ur jurisdiction is not so limited,
however, when it comes to ‘constitutional claims or questions of law’ that
are related to the denial of an application for adjustment of status.”
Wroblewska v. Holder, 656 F.3d 473, 477 (7th Cir. 2011), citing 8 U.S.C.
§ 1252(a)(2)(D). Pouhova’s proceedings violated her statutory procedural
rights. She raised that legal claim in her petition for review. Although the
immigration judge’s alternative holding that she would not merit a
favorable exercise of discretion was a discretionary decision, it was based
                                                                (continued...)
20                                                          No. 12-1665

III. Conclusion
    Pouhova’s petition for review is GRANTED and we
VACATE the Board’s orders affirming the immigration judge’s
findings that (1) Pouhova’s testimony was not credible, (2)
Pouhova was inadmissible for smuggling, (3) the government
showed by clear and convincing evidence that she was
removable for alien smuggling, and (4) Pouhova did not merit
a favorable exercise of discretion. The case is REMANDED to
the Board of Immigration Appeals for a new hearing consistent
with this opinion.




7
  (...continued)
on evidence that was admitted in legal error. We thus have jurisdiction to
review the discretionary determination to the extent that we must vacate it
for reconsideration upon remand for proceedings that conform to the
statutory requirements. See Tun v. Gonzales, 485 F.3d 1014, 1016 (8th Cir.
2007) (in case where court found evidentiary due process violations, “[w]e
need not address the parties’ arguments as to whether we have jurisdiction
to review the Board’s denial of voluntary departure. Our remand on the
other issues moots the Board’s ruling on voluntary departure and requires
a reopening of the record.”).
