Aslam v. Mukasey (2d Cir. 08/08/08, Docket no. 05-1044-ag)

Pooler, Hall, Trager

The 2d Cir denied this petition for review of the IJ's decision finding petitioner removable and ineligible to adjust based on petitioner's inadmissibility due to previous marriage fraud.  At his merits, petitioner's ex-wife testified via videoconferencing regarding her fraudulent marriage to petitioner.  While agreeing that the admission of VTC testimony of witnesses must comply with due process, the court rejected petitioner's arguments that his due process rights were violated as the admission of the evidence was clearly probative and there was no evidence in the record that its use was not fundamentally fair.  Moreover, petitioner was not prejudiced through the VTC testimony.  The court next found that the IJ did not err in finding petitioner removable and ineligible for adjustment based on inadmissibility due to the marriage visa fraud.  Finally, the court found that the BIA had not abused its discretion in summarily affirming without opinion the IJ's decision.

(more details below)

Read opinion here:  

Pro se petitioner EWI'd and then sought to adjust status in 1997 and 2000 based on two different marriages to USCs. The first application was denied as abandoned and the second was denied for fraud. Petitioner was placed in removal proceedings in February 2002 and in November 2002 he applied to adjust status based on an employment visa. His NTA was then amended to charge him with removability based on fraudulently attempting to procure a marriage through his 2 prior marriage petitions.   The gvt sought to introduce VTC testimony of its key witnesses, petitioner's ex-wives, to prove the fraud.  The IJ granted the gvt's motion but told petitioner's lawyer that he would consider a motion to transfer venue so that the witnesses could appear in person.  Petitioner's attorney did not file such a motion, and at the merits, petitioner's first ex-wife testified as to the marriage fraud.  The IJ ordered petitioner removed and the BIA affirmed w/o an opinion.

Petitioner argued to the 2d Cir. (1) that use of VTC for a key witness violated his due process rights (2) that the gvt had failed to meet its burden of proof that petitioner had engaged in a fraudulent marriage, and (3) that the BIA had abused its discretionary powers by affirming the IJ's order w/o opinion. The court rejected all three arguments.

First, the court held that, since the IJ has the authority to conduct entire proceedings via videoconferencing, the IJ also has the authority to allow witnesses to testify via VTC.  However, admission of VTC evidence must comply with the due process clause.  See Rusu v. INS, 296 F.3d 316 (4th Cir. 2002); Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2002). Going through a due process analysis, however, the court found that petitioner's due process rights were not violated:

"In this case, it was not petitioner that was being interviewed via videoconference, but rather a key witness: his ex-wife who testified that she engaged in a fraudulent marriage with the petitioner. The admission of such evidence was clearly probative, and there is no evidence in the record that its use was not fundamentally fair. See Zhen Nan Lin, 459 F.3d at 268. Significantly, the IJ presented the petitioner with the opportunity to file a motion to transfer venue in light of the fact that key witnesses were located in Ohio and would have to testify via videoconference; the petitioner, however, declined this opportunity. Then, at the hearing, the petitioner had a full opportunity to confront and cross-examine the witness, his ex-wife, and to draw attention to any credibility
issues or inconsistencies in her testimony. And, finally, petitioner fails to persuasively argue that he was prejudiced through the videoconference testimony; while he highlights potential contradictions in the witness’ testimony, such credibility determinations were for the IJ to make, and there is no evidence in the record to suggest that the IJ’s factual determinations were flawed."

The court then held that the gvt had met its proof in showing that petitioner was removable based on his fraudulent marriage, and that petitioner had not met his burden in showing that he was eligible to adjust since he is inadmissible under INA 212(a)(6)(C) (for having by fraud or willfully misrepresenting a material fact seeking to procure a visa).  Therefore, the IJ did not err in concluding that the gvt had met its burden aand that petitioner could not demonstrate eligibility to adjust.

Finally, the court found that the Board did not abuse its discretion in summarily affirming the IJ's opinion since the IJ's decision contained sufficient reasoning to permit judicial review.  

Petition for review denied.

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Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.