Manuela D. Malave v. ERIC H. HOLDER, JR., Attorney General of the United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3578
MANUELA D. MALAVE,
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.
ARGUED SEPTEMBER 22, 2009—DECIDED JUNE 29, 2010
Before EASTERBROOK, Chief Judge, and BAUER and
ROVNER, Circuit Judges.
EASTERBROOK, Chief Judge. Manuela Malave, a citizen
of Nicaragua, was ordered removed from the United
States after an immigration judge concluded that she
had paid $1,000 to her ex-husband to enter into a sham
marriage for the purpose of securing an immigration
benefit. Malave applied for cancellation of removal under
§202 of the Nicaraguan Adjustment and Central American
Relief Act, 111 Stat. 2193, as amended by 111 Stat. 2644

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2 No. 08-3578
(1997). Section 202 of NACARA is reproduced as a note
following 8 U.S.C. §1255. But the IJ’s finding of a sham
marriage made her inadmissible under §212(a)(6)(C)(i)
of the Immigration and Nationality Act, 8 U.S.C.
§1182(a)(6)(C)(i), so §202(a)(1)(B) of NACARA precluded
relief. The Board of Immigration Appeals dismissed
her appeal in a brief order.
Section 202(f) of NACARA forbids judicial review of
a decision denying a motion for adjustment of status,
and the Attorney General asks us to dismiss Malave’s
petition. The parties have debated the interesting ques-
tion whether 8 U.S.C. §1252(a)(2)(D), part of the Real ID
Act, permits review of legal questions notwithstanding
§202(f) of NACARA, but this is not a subject we need
explore. For what §202(f) says is: “A determination by the
Attorney General as to whether the status of any
alien should be adjusted under this section is final and
shall not be subject to review by any court.” This
does not bar review of the order of removal itself, as
some sections of the Immigration and Nationality Act do.
See, e.g., 8 U.S.C. §1252(a)(2)(C) (“no court shall have
jurisdiction to review any final order of removal against
an alien who is removable by reason of having committed
a criminal offense covered in section 1182(a)(2) or
1227(a)(2)(A)(iii), (B), (C), or (D) of this title”).
Malave contends that the order of removal is defective
because the IJ did not hold a hearing that complies with
8 U.S.C. §1229a(b)(4)(B), which directs the agency to
afford each alien “a reasonable opportunity to examine
the evidence against the alien, to present evidence on the

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No. 08-3578 3
alien’s own behalf, and to cross-examine witnesses pre-
sented by the Government”. Section 202(e)(2) of
NACARA requires the Attorney General to follow
§1229a. A need to give every alien one complete hearing
does not impinge on the Attorney General’s plenary
authority to decide whether, on a properly compiled
record, the alien is entitled to adjustment of status. To
the extent there is any ambiguity about the way in
which §202(f) of NACARA interacts with the general
grant of jurisdiction in §1252(a), we resolve it by “the
presumption favoring judicial review of administrative
action”. Kucana v. Holder, 130 S. Ct. 827, 839 (2010).
Manuela Gaula married Jose Antonio Malave Cruz on
August 8, 1996, and took his family name. Four months
later, Jose filed an I-130 petition on her behalf, asking
immigration officials to adjust her status to that of perma-
nent resident on the basis of her marriage to a citizen.
Manuela filed a corresponding I-485 petition. Afzal v.
Holder, 559 F.3d 677 (7th Cir. 2009), discusses how this
process works. In September 1997 Manuela and Jose
were interviewed, both jointly and separately, by im-
migration officials. During the separate portion of this
interview, Jose signed a statement that he had been paid
$1,000 to marry Manuela. He withdrew his I-130 petition.
The interview with Jose was not recorded, and Manuela
did not see a copy of Jose’s statement until 2002, when
she obtained her immigration file under the Freedom
of Information Act.
Manuela was taken into custody immediately after the
interview with Jose ended but was released that evening.

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4 No. 08-3578
She relates that an agent of the FBI told her that he had
investigated, concluded that the marriage had been
genuine, and informed immigration officials so. Despite
releasing her, the agency commenced removal pro-
ceedings and denied her petition for adjustment of status
as a citizen’s spouse. Manuela says that she has been
unable to locate Jose since the day of the interviews.
The removal proceeding was closed later in 1997 after
Congress enacted NACARA, which provides for adjust-
ment of status for citizens of Nicaragua who entered
the United States before December 1, 1995, have been in
this nation continuously since, and are not statutorily
ineligible for admission. Manuela applied for the
statute’s benefits. She next heard from the agency in
2005, when it denied her application on the ground that
a fraudulent marriage made her ineligible for admission
and derivatively ineligible under NACARA. The agency
then reinstituted removal proceedings.
A hearing began in December 2006 and was conducted
in stages. During the first, the agency’s lawyers offered
two versions of Jose’s statement. Both were in English, a
language that Manuela says Jose does not understand.
(She tells us that he was born and raised in Puerto Rico.
Many U.S. citizens from that commonwealth under-
stand only Spanish.) The first is handwritten, by a
different hand than the signature, and reads:
Manuela Gaula gave me $1,000 to marry her so
she could get her green card. I never lived with her
& never slept or had sex with her. I don’t even
know her address but I do know the street name,
Delaware.

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No. 08-3578 5
The second, which is typed, reads:
[Manuela] offered me $1,000. She never told me it
was illegal and I did not realize it was wrong until
after we were married, on August 8, 1996 in Lake
County at the courthouse in Waukegan. The[] day
we married she paid me the $1,000 cash. There
was no other person involved in our arrange-
ment and there were no witnesses at the marriage.
We never dated or had any romantic involve-
ment. I think she lives with a man she is not mar-
ried to and I think their address is 1928 Delaware,
Waukegan. We came to the Immigration office
today for our interview and the officer who inter-
viewed us . . . said that it could be prejudicial to me
if I didn’t tell the truth about our marriage; so
I said I would rather cancel my application for
Manuela Gaula, and tell the truth.
Manuela’s lawyer objected to the receipt of these state-
ments in evidence, contending that they had not been
authenticated or disclosed before the hearing. Manuela
also maintained that the details of the statements (such
as whether she had lived with and had sexual relations
with Jose), could be refuted by admissible evidence. The
IJ then recessed the hearing.
When it was resumed in mid-January 2007, Manuela not
only presented some evidence to contradict Jose’s pur-
ported statements but also asked the IJ to issue a
subpoena, so that Jose could be compelled to attend and
be subjected to cross-examination. The IJ refused, stating
that if Manuela had not found Jose during the decade

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6 No. 08-3578
since the 1997 interview, she was never going to find
him. The IJ did not consider asking federal agents to
enforce the subpoena (nor did the BIA discuss that pos-
sibility on appeal). After admitting the two statements
into evidence, the IJ again recessed the hearing. The final
stage of the hearing came on March 12, 2007, when
Manuela testified that she did not pay Jose, that the
marriage had been consummated, and that the couple
lived together for approximately ten months until she
threw him out after finding him in bed with another
man. The IJ then rendered an oral opinion stating that
he believed the statements attributed to Jose. This led
to the finding of fraud, the denial of relief under
NACARA, and the order of removal.
Part of Manuela’s brief is devoted to the proposition that
the IJ violated the due process clause of the fifth amend-
ment by admitting and relying on hearsay evidence. (Jose’s
statements are hearsay because they are out-of-court
declarations used for the truth of the matter stated.) This
line of argument is unnecessary. If as Manuela contends
the hearsay statements are unreliable, then the agency’s
decision is not supported by substantial evidence and
may be set aside under standard principles of administra-
tive law without any need for constitutional theorizing.
No one doubts that aliens are entitled to due process
of law in removal hearings, and that administrative
decisions must stand on a better footing than speculation.
See Bridges v. Wixon, 326 U.S. 135, 156 (1945). But statutes
such as 8 U.S.C. §1229a(b)(4)(B), and regulations such as
8 C.F.R. §1240.1(c), guarantee to aliens notice and an
opportunity for a fair hearing. Appeals to “due process”

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No. 08-3578 7
often come at the expense of arguments based on these
concrete procedural entitlements. That’s one reason why
we have advised aliens and their lawyers to omit due-
process contentions unless they believe that the statutes
and regulations that govern removal hearings are
constitutionally deficient. See, e.g., Rehman v. Gonzales,
441 F.3d 506, 508–09 (7th Cir. 2006).
Perhaps Manuela’s lawyers believe that they must
make a due-process argument because neither the
statute nor any regulation forbids the use of hearsay. But
then neither does the due process clause. Hearsay is
regularly used in administrative adjudication, and for
that matter criminal sentencing. In Richardson v. Perales,
402 U.S. 389 (1971), the Justices roundly rejected the
argument that the due process clause creates for admin-
istrative adjudication the same constitutional require-
ment of live testimony that the confrontation clause
establishes for criminal trials. The Court added that
hearsay could supply substantial evidence for an ad-
ministrative decision. See also, e.g., Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229–30 (1938); Duad v. Holder,
556 F.3d 592, 595–96 (7th Cir. 2009).
Perales has a proviso of consequence here. The Court
wrote that hearsay “may constitute substantial evidence
supportive of a finding by the hearing examiner adverse
to the claimant, when the claimant has not exercised
his right to subpoena the [declarant] and thereby
provide himself with the opportunity for cross-examina-
tion”. 402 U.S. at 402. Manuela tried to take advantage
of that proviso, but the IJ refused to issue a subpoena
for Jose. And that’s a big problem, not only under the

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8 No. 08-3578
proviso in Perales but also under §1229a(b)(4)(B), which
entitles aliens to cross-examine adverse witnesses. The
bureaucracy can’t nullify that right by presenting
written declarations rather than live testimony. A
declarant is a “witness” when testimony comes in on
paper, no less than when it is offered in person. Cf.
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).
Several 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 (which the alien may
lack the resources to do). See Ocasio v. Ashcroft, 375
F.3d 105, 107 (1st Cir. 2004); Olabanji v. INS, 973 F.2d 1232,
1234 (5th Cir. 1992); Dallo v. INS, 765 F.2d 581, 586 (6th
Cir. 1985); Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir.
1997). We need not decide when assistance with enforce-
ment is required—or what kind of assistance is neces-
sary—because here the IJ refused to issue a subpoena in
the first place.
The IJ did not find the request untimely. The hearing
was just about to recess for two months, so a subpoena
would not have occasioned any additional delay. Nor did
the IJ rely on 8 C.F.R. §1003.35(b)(2), which requires an
alien to make a “diligent effort” to locate the witness be-
fore requesting a subpoena. (The Attorney General’s brief
in this court likewise does not mention §1003.35(b)(2).)
Instead the IJ stated that a subpoena would be futile,
because if Manuela had not found Jose in the last ten years,
she never would. That’s not a good reason. Manuela was
not looking for most of that time. Until 2005, when the
agency renewed its request for her removal, she had no

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No. 08-3578 9
reason to. And Manuela is not a professional skip tracer.
She does not know how to locate people who don’t want
to be found. That expertise exists in both the govern-
ment and the private market, however, and a subpoena
could have been turned over to a professional with experi-
ence in finding people who did not leave forwarding
addresses.
A prediction that a person can’t be found, or that cross-
examination won’t be fruitful, is a poor reason to deny
a litigant the statutory entitlement to cross-examine
adverse witnesses. The best way to find out whether a
subpoena will work is to issue one. Jose Malave may be
dead or untraceable, and if so the hearing would have
proceeded as it did; no harm would have been done (and
no delay would have ensued). But he might have
turned up.
None of this is to say that Jose’s statements are so
outré that an agency is forbidden to rely on them. Bogus
marriages designed to obtain immigration benefits are
regrettably common, and the agents who interview the
applicants have every reason to separate the real
marriages from the spurious ones. They don’t get a
bonus for imputing immigration fraud to honest people.
Section 202(f) of NACARA insulates from judicial
review the decision whether to believe particular
evidence of immigration fraud. But before exercising
this unreviewable power, the IJ, as the Attorney Gen-
eral’s delegate, must furnish the alien with compulsory
process to seek the adverse witness’s presence, so that
the truth of the writings may be tested.

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10 No. 08-3578
The petition for review is granted, and the matter is
remanded to the agency for further proceedings con-
sistent with this opinion.
6-29-10

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