Alimi, Sultana v. Gonzales, Alberto R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3199
SULTANA ALIMI,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A47-279-565
____________
ARGUED APRIL 10, 2007—DECIDED JUNE 6, 2007
____________
Before BAUER, POSNER and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Sultana Alimi, a lawful permanent
resident of the United States, was ordered removed by an
immigration judge (“IJ”) on June 8, 2005, on the ground
that she had engaged in alien smuggling. The Board of
Immigration Appeals (“BIA” or “Board”) adopted and
affirmed the decision of the IJ. Ms. Alimi timely petitioned
for review of the decision of the BIA. For the reasons set
forth in this opinion, we deny the petition for review and
affirm the decision of the BIA.
2 No. 06-3199
I
BACKGROUND
A.
Ms. Alimi is a fifty-year-old ethnic Albanian, a native and
citizen of Macedonia. She has been a lawful permanent
resident since 2000, a status she obtained through her
husband, a United States citizen. Ms. Alimi has one United
States citizen daughter, Fazile, and two permanent resident
sons. Ms. Alimi does not speak English and cannot read or
write in her native language.
In February 2001, Ms. Alimi traveled to Macedonia.
According to her testimony at the removal hearing, Ms.
Alimi took the United States passport belonging to her
daughter, Fazile, to Macedonia, for the purpose of assisting
Arejta Saliu (née Imeri), the new wife of her nephew, to
enter the United States by posing as Fazile. On the return
trip, immigration officials took Ms. Alimi and Saliu aside
and then separated them. When Saliu was questioned, she
apparently first claimed to be Fazile Alimi, but recanted
and admitted her identity. Ms. Alimi also was questioned.
An interpreter, located in another city, provided interpreta-
tion services by telephone. Ms. Alimi’s responses were
typed simultaneously by her interviewing officer. Accord-
ing to the record created by that officer, Ms. Alimi admit-
ted that the woman who had accompanied her on the
return trip was not her daughter but her nephew’s wife.
Ms. Alimi told the officer that her nephew had requested
her assistance in bringing his new wife to the United States.
She further admitted that she had brought Fazile’s passport
to Macedonia in order to facilitate Saliu’s entry. At her
immigration hearing, Ms. Alimi also testified that the
officer raised his voice to her and threatened that he would
handcuff her if she did not tell the truth.
No. 06-3199 3
Notably, it appears from the record that Saliu was subject
to expedited removal on the basis of fraud, but later
received a waiver permitting her to return to the United
States on the basis of her marriage and was granted
permanent residency in 2003. Because Ms. Alimi was a
permanent resident, she was placed in removal proceed-
ings; the relief granted to Saliu on her later, lawful reentry
to the United States was not available to Ms. Alimi in those
proceedings.1
B.
Based on the events at the airport in February 2001,
immigration authorities sought the removal of Ms. Alimi
by charging her with two grouds of removability: (1)
having engaged in fraud to procure an immigration benefit,
see 8 U.S.C. § 1182(a)(6)(C)(i) (“the fraud charge”);2 (2)
1
A discretionary waiver of inadmissibility for document fraud
may be available to the spouse of a United States citizen or
permanent resident, such as Saliu, when extreme hardship
would result to the United States citizen spouse if the alien were
not permitted to return; a more limited discretionary waiver is
available for aliens such as Ms. Alimi, who are found inadmissi-
ble on a smuggling charge, and that waiver is available only
when the smuggled alien is an immediate relative of the
smuggler. Compare 8 U.S.C. § 1182(i) (waiver of fraud) with
§ 1182(d)(11) (waiver of smuggling).
2
8 U.S.C. § 1182(a)(6)(C)(i) provides:
Any alien who, by fraud or willfully misrepresenting a
material fact, seeks to procure (or has sought to procure or
has procured) a visa, other documentation, or admission
(continued...)
4 No. 06-3199
having knowingly encouraged, induced, assisted, abetted
or aided another alien to try to enter the United States in
violation of law, see id. § 1182(a)(6)(E)(i) (“the smuggling
charge”).3 Ms. Alimi appeared in immigration court,
represented by counsel, for two preliminary hearings.4 The
case then was scheduled for a merits hearing on September
24, 2004.
At the first merits hearing, counsel for the Department of
Homeland Security (“DHS”) began examining Ms. Alimi
through a court-provided interpreter. After a few brief
questions, the interpreter noted that she and Ms. Alimi
were struggling to understand each other because they
spoke different Albanian dialects. The IJ conferred with the
parties, and, although neither counsel desired to continue
with the hearing under the circumstances, the IJ suggested
that they move forward for a brief period and then reassess
the extent of the misunderstanding between the interpreter
and Ms. Alimi. After a few more questions, the interpreter
herself interrupted and said, “[t]his is just too difficult for
2
(...continued)
into the United States or other benefit provided under this
chapter is inadmissible.
3
8 U.S.C. § 1182(a)(6)(E)(i) provides:
Any alien who at any time knowingly has encouraged,
induced, assisted, abetted, or aided any other alien to enter
or to try to enter the United States in violation of law is
inadmissible.
4
At the second of these preliminary hearings, counsel for Ms.
Alimi indicated that Ms. Alimi intended to “invoke her [] right
not to testify against herself.” A.R. at 64. She testified, however,
without objection at the two subsequent sessions.
No. 06-3199 5
me. . . . I don’t understand what, what she’s saying.” A.R.
at 106. The IJ, therefore, terminated the testimony.
Before closing the hearing, the IJ discussed several
remaining administrative matters with the parties. During
this exchange, the Government offered into evidence the
record of the questioning that took place during the airport
interview. Ms. Alimi’s attorney objected. He claimed that
the proffered statement was hearsay, and, given the lack of
a translator’s certification, potentially was tainted by
similar translation problems to those that had been encoun-
tered at the hearing. The attorney further claimed that Ms.
Alimi had a right to an attorney during the airport inter-
view and that the examining officers had an obligation to
advise her of that right, citing 8 C.F.R. § 287.3; in the
attorney’s view, the absence of this advice, alongside the
officer’s threat to handcuff Ms. Alimi, amounted to coer-
cion. The IJ reserved judgment, but informed the Govern-
ment that it would be a “good idea” if the officer who took
the statement were present at the next hearing. A.R. at 117.
If he were not available, continued the IJ, an explanation
for his absence ought to be provided to the court. The IJ
then closed and recalendared the hearing for July 27, 2005.
See A.R. at 254.
For reasons undisclosed by the record, the court moved
up the hearing date to June 8, 2005. On the day of the
hearing, the Government filed an emergency motion for a
continuance. In the motion, the Government claimed that
it had been prepared to proceed as originally scheduled on
July 27, 2005, and had secured the availability of the
inspecting officers to testify on that date. It had been
unable, however, to secure those witnesses for the resched-
uled June hearing: One of the witnesses was on detail in a
Detroit location and the other was unavailable because he
6 No. 06-3199
was on family-related personal leave. See A.R. at 129, 193-
94. The court denied the motion and proceeded with the
hearing without the officers, but again reserved judgment
on the admissibility of the airport statement.
Ms. Alimi and Saliu testified as to Saliu’s attempt to enter
the United States and the statements made to immigration
officers at the airport. In her testimony, Ms. Alimi admitted
taking Fazile’s passport for the purpose of assisting Saliu
with her entry to the United States. She testified, consistent
with the record of her statement at the airport prepared by
the inspecting officers, that she initially had told the
officers that Saliu was her daughter, Fazile, but that she
later told the officer that she had made a mistake and that
Saliu was not her daughter. At the close of the testimony,
the IJ admitted her airport statement, concluding that her
testimony had not established that the statement either was
coerced or was translated improperly sufficient to require
the Government to respond with witnesses in support of its
admission. A.R. at 180.
Ms. Alimi contested both charges of removability alleged
by the Government. She did not, however, request any
form of relief from removal in the event that the IJ found
the charges sustained. At the conclusion of the hearing, the
IJ held that Ms. Alimi was removable on the basis of the
smuggling charge; he also determined, however, that the
Government had not sustained its burden of proof on the
fraud charge because Ms. Alimi had sought no immigra-
tion benefit for herself from her misrepresentations, as
contemplated by the statute.5 See 8 U.S.C. § 1182(a)(6)(C)(i).
5
In the oral decision on the record, the IJ found both charges
sustained. See A.R. at 187. In the full decision, the IJ found the
(continued...)
No. 06-3199 7
In his written decision, the IJ found that the smuggling
charge had been proven by Ms. Alimi’s testimony. Despite
her arguments to the contrary, the IJ found that Ms. Alimi’s
smuggling was premeditated: Her in-court testimony
established that she had left the United States with Fazile’s
passport to bring it to Saliu and had made arrangements to
travel into the United States with her pretending to be her
mother. He rejected Ms. Alimi’s claim that, because she
was not the one to physically alter the passport by remov-
ing Fazile’s picture and placing Saliu’s in its stead, she was
merely an “unwitting player,” A.R. at 48; he instead found
that her testimony established that she had full knowledge
of the purpose for which she brought the passport. Accord-
ingly, the IJ ordered Ms. Alimi removed to Macedonia.
Ms. Alimi timely appealed her removal order to the BIA.
In her brief on appeal, Ms. Alimi claimed that her state-
ment from the airport should not have been admitted
because of potential difficulties in interpretation, coercion
by the inspecting officer, fundamental unfairness in
admitting the statement without producing the officer in
court and failure of the officer to advise her of a right to
counsel. Additionally, Ms. Alimi claimed that she provided
no affirmative acts of assistance to Saliu in her attempt to
enter the United States and, therefore, under an interpreta-
tion of the smuggling provision adopted by the Sixth
Circuit in Tapucu v. Gonzales, 399 F.3d 736 (6th Cir. 2005),
had not engaged in the sort of “surreptitious activity”
necessary to support a smuggling charge. A.R. at 47.
Finally, she claimed that, because Saliu’s fraud eventually
5
(...continued)
fraud charge unsustained. See A.R. at 52. No party contends
on appeal that the fraud charge was sustained.
8 No. 06-3199
was waived and she was admitted to the United States, Ms.
Alimi’s assistance in Saliu’s initial attempt to enter should
not result in Ms. Alimi’s removal.
The BIA adopted, affirmed and supplemented the
decision of the IJ. It first determined that there had been no
due process violation in the manner in which translation
services were provided at the removal hearings. Specifi-
cally, it noted that the IJ had continued proceedings in
order to find a more appropriate interpreter and that, at the
final hearing, no objections had been made to the inter-
preter’s ability to understand Ms. Alimi. With the excep-
tion of a miscommunication in stating her address, the
record reveals no problems with interpretation at the
dispositive hearing. The Board then noted that, whatever
the objections to the admission of the airport statement in
evidence, Ms. Alimi had admitted that the statement was
truthful during her testimony in court. It further noted that,
in any event, the charge was supported by sufficient
evidence even without the airport statement. The Board
then noted that it did not accept Ms. Alimi’s contention
that she had engaged in no affirmative acts of assistance to
Saliu; in its view, her testimony established otherwise.
Finally, the Board stated that it had no authority to waive
the alien smuggling charge because the smuggled alien,
Saliu, had been admitted to the United States under a
waiver that was not available to Ms. Alimi.6
6
See supra note 1.
No. 06-3199 9
II
DISCUSSION
A.
Ms. Alimi claims that she was denied her right to due
process of law in her immigration proceeding. Although
she couches her objections in various terms, Ms. Alimi
summarizes them essentially as due process violations in
the admitting of the airport statement and in failing to
require the appearance of the officer who took her state-
ment at the airport. We begin by noting that, when the
Board adopts, affirms and supplements a decision of the IJ,
we review the IJ’s decision as supplemented by the BIA.
Pavlyk v. Gonzales, 469 F.3d 1082, 1087 (7th Cir. 2006).
We review de novo an alien’s claim that she was denied
due process of law. See Shymelskyy v. Gonzales, 477 F.3d 474,
482 (7th Cir. 2007). To warrant a new immigration hearing
on a due process claim, an alien must establish that she was
prejudiced, that is, that the error likely affected the result
of the proceedings. Id. Additionally, this court may con-
sider only those contentions on which the alien has ex-
hausted all administrative remedies available as of right. 8
U.S.C. § 1252(d)(1).
In cases claiming due process violations in immigration
proceedings, we recently have reminded petitioners that
proceedings which meet the statutory and regulatory
standards governing the conduct of removal hearings, as a
general rule, comport with due process. Apouviepseakoda v.
Gonzales, 475 F.3d 881, 884-85 (7th Cir. 2007). Accordingly,
it is generally appropriate to assess “due process” chal-
lenges through the statutory and regulatory lenses in 8
U.S.C. § 1229a and 8 C.F.R. §§ 1240.1 and 1240.10.
10 No. 06-3199
B.
Ms. Alimi first submits that the failure of the IJ to make
an explicit ruling on the admissibility of the airport state-
ment deprived her of her right to “cross exam[ine] and in
essence challenge the government’s case against” her, in
violation of 8 U.S.C. § 1229a(b)(4).7 Petitioner’s Br. at 17.
Without citation to any authority, Ms. Alimi claims that the
IJ was “under an obligation” to render a decision because
Ms. Alimi believed her hearing statement was taken in
order to oppose the admission of the statement rather than
on the merits of the case. Id. at 18. In essence, she believed
that she was testifying at the immigration equivalent of a
hearing on a motion to suppress a statement as involun-
7
8 U.S.C. § 1229a(b)(4) provides:
(4) Alien’s rights in proceeding
In proceedings under this section, under regulations of
the Attorney General—
(A) the alien shall have the privilege of being repre-
sented, at no expense to the Government, by counsel of
the alien’s choosing who is authorized to practice in
such proceedings,
(B) the alien shall have a reasonable opportunity to
examine the evidence against the alien, to present
evidence on the alien’s own behalf, and to cross-exam-
ine witnesses presented by the Government but these
rights shall not entitle the alien to examine such na-
tional security information as the Government may
proffer in opposition to the alien’s admission to the
United States or to an application by the alien for
discretionary relief under this chapter, and
(C) a complete record shall be kept of all testimony and
evidence produced at the proceeding.
No. 06-3199 11
tary, not a proceeding to determine guilt or innocence. She
claims that she would have exercised her privilege against
“self-incrimination” had she known the testimony was on
the merits. Id. at 19. In her view, such right was available
because alien smuggling is a crime as well as a ground of
inadmissibility.
We cannot accept Ms. Alimi’s claim for several reasons.
Although the admission of the statement was challenged
before the BIA, Ms. Alimi did not claim in that proceeding
that the IJ had an obligation to rule on the issue before
proceeding with a hearing on the merits. We also note that
there is nothing in the record to support her assertion that
she believed that she was testifying on anything other than
the merits of her claim. Finally, although she previously
had indicated a desire not to testify, no objection was made
to her testimony, which was offered as a part of the Gov-
ernment’s case-in-chief and covered subjects that had
nothing to do with the conduct of the airport hearing.
1.
Acknowledging that immigration proceedings are
governed by a “looser standard of due process,” see Olowo
v. Ashcroft, 368 F.3d 692, 699 (7th Cir. 2004), and not by the
rules of evidence, Ms. Alimi nevertheless submits that her
airport statement was hearsay and that its use was “clearly
and inherently unfair.” Petitioner’s Br. at 20. In her view,
the immigration judge erred in admitting the statement
without requiring the officer who took the statement to be
present for cross-examination. This claim was presented to
the BIA. In response, the Government contends that the
only relevant procedural right afforded by § 1229a(b)(4) is
the right to cross-examine witnesses; there is no affirmative
duty on the part of DHS to present a witness.
12 No. 06-3199
Ms. Alimi points to no authority to support her view that
a document’s author must be present to satisfy the requi-
sites of due process in immigration proceedings. Instead,
she relies on Olowo, 368 F.3d 692, in which this court
rejected a due process challenge to the admission of the
testimony of an immigration inspector that the alien had
challenged as inconsistent and unreliable. Although Olowo
does state that the testimony, although hearsay, did not
pose a due process problem in part because it was subject
to cross-examination, it was addressing the claim that
admission of hearsay statements, which contradicted and
undermined the petitioner’s own testimony and which the
petitioner had characterized as unreliable, was fundamen-
tally unfair. When Ms. Alimi’s own testimony does not
contradict the hearsay statement and, indeed, confirms its
truth, its admission does not pose a due process problem
for lack of cross-examination.8
Ms. Alimi has failed to demonstrate a statutory right to
the officer’s presence, nor has she established that his
8
Ms. Alimi’s further support for her contention is an unpub-
lished disposition of this court, Jung v. INS, No. 92-3414, 1993
WL 269429 (7th Cir. July 16, 1993). Although the Federal Rules
of Appellate Procedure recently have been amended to require
the circuit courts to permit citation to unpublished decisions,
the new rule only applies to unpublished decisions issued on or
after January 1, 2007. Because Ms. Alimi relies on an unpub-
lished decision from 1993, it cannot be cited to this court. See
Fed. R. App. P. 32.1; Cir. R. 32.1(d) (“No order of this
court issued before January 1, 2007, may be cited except to
support a claim of preclusion (res judicata or collateral estoppel)
or to establish the law of the case from an earlier appeal in the
same proceeding.”). We, therefore, decline to address her
contentions based on Jung.
No. 06-3199 13
absence resulted in a proceeding that was both fundamen-
tally unfair and prejudicial.
2.
Ms. Alimi further contends that her due process rights
were violated through the introduction of the record of the
airport interview because those proceedings were rendered
unreliable by the Government’s provision of an interpreter
that she could not understand. She relies upon our decision
in Balogun v. Ashcroft, 374 F.3d 492 (7th Cir. 2004), in
support of this argument. In that case, we discussed certain
standards for the reliability of airport interview records
used in immigration proceedings. In Balogun, however, we
considered the admissibility of statements made in airport
interviews that contradicted in-court testimony and there-
fore supported adverse credibility findings, or further
supported the immigration judge’s assessment that an
asylum applicant did not fear persecution.9
9
Balogun v. Ashcroft, 374 F.3d 492, 505 (7th Cir. 2004), quoted the
Second Circuit in Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir.
2004), for the following reliability factors relevant to airport
testimony:
First, a record of the interview that merely summarizes or
paraphrases the alien’s statements is inherently less reliable
than a verbatim account or transcript. Second, similarly
less reliable are interviews in which the questions asked
are not designed to elicit the details of an asylum claim, or
the INS officer fails to ask follow-up questions that would
aid the alien in developing his or her account. Third, an
interview may be deemed less reliable if the alien appears
to have been reluctant to reveal information to INS officials
(continued...)
14 No. 06-3199
Balogun could support certain claims Ms. Alimi makes
about reliability. This case does involve a language barrier
and Ms. Alimi did not have the sort of educational back-
ground that might induce any comfort level with respect to
her ability to deal with the immigration authorities. See
Balogun, 374 F.3d at 505-06. In the record of the airport
interview, Ms. Alimi appears to have acknowledged her
understanding of the questions put to her. Nevertheless, at
trial, she stated that she did not understand “most of [the]
questions” asked, or the interpreter’s dialect. A.R. at 144.
She then stated that she responded to “what [she] was
understanding [sic].” Id.These factors in another case might be worthy of more
pause. Here, however, it is difficult for Ms. Alimi to make
a case for unreliability of the airport statement when she
later admitted, in her own live testimony before the IJ, that
the content of the airport statement was true and further
admitted, once again, the facts contained in that earlier
9
(...continued)
because of prior interrogation sessions or other coercive
experiences in his or her home country. Finally, 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. Examining the interview in light of these
factors will focus the agency’s inquiry on whether the
record of the interview accurately reflects the alien’s
statements, whether the alien had a full opportunity to
express him- or herself, and whether the alien’s state-
ments are likely to reflect his or her actual beliefs and fears.
Balogun v. Ashcroft, 374 F.3d 492, 505 (7th Cir. 2004).
No. 06-3199 15
airport statement.10
3.
Finally, Ms. Alimi claims that she had a procedural right,
embodied in the regulations, to be informed of various
rights in removal proceedings. See 8 C.F.R. § 1240.10(a)(1).11
10
Ms. Alimi makes two additional claims relating to the
unreliability of the airport statement. First, she states that she
was not informed of her right to have an attorney present. She
also claims that the statement was the product of coercion
because the officer “raise[d] his voice,” A.R. at 161, and in-
formed her that she could be handcuffed. In any event, we need
not pass on the substance of either of these claims where they
simply support Ms. Alimi’s contention that the record of the
proceedings was unreliable; she cannot admit that she told the
officers the truth and separately admit the salient facts in-
cluded in the record while simultaneously urging that the rec-
ord is unreliable.
11
8 C.F.R. § 1240.10(a) provides, in relevant part, that the
immigration judge shall, in a removal hearing,
(1) Advise the respondent of his or her right to representa-
tion, at no expense to the government . . . ;
(2) Advise the respondent of the availability of free legal
services provided by organizations and attorneys . . . ;
(3) Ascertain that the respondent has received a list of such
programs, and a copy of appeal rights;
(4) Advise the respondent that he or she will have a reason-
able opportunity to examine and object to the evidence
against him or her, to present evidence in his or her own
behalf and to cross-examine witnesses presented by the
(continued...)
16 No. 06-3199
The Government counters that Ms. Alimi failed to exhaust
this claim, and that, consequently, this court may not
review it. The Government’s representation that this claim
was not presented to the Board is supported by the record.
In any event, even if we could review the merits of her
claim, she has not established that a violation of this
particular procedural rule would have caused her any
prejudice. She was represented by counsel throughout the
proceedings, and she has made no showing as to how she
would have conducted herself differently had she been
advised in the manner that she claims was required.
Indeed, she has exercised many of the rights of which she
was not advised by the IJ. See, e.g., Mema v. Gonzales, 474
F.3d 412, 421 (7th Cir. 2007) (rejecting a due process failure-
to-inform claim for failure to demonstrate prejudice where
the alien was represented and did not assert a lack of actual
knowledge of the right); Bejko v. Gonzales, 468 F.3d 482, 487-
88 (7th Cir. 2006) (same); Feto v. Gonzales, 433 F.3d 907, 912-
13 (7th Cir. 2006) (concluding that the IJ’s failure to inform
the alien of the rights in 8 C.F.R. § 1240.10 was harmless
error under the circumstances).
11
(...continued)
government . . . ;
(5) Place the respondent under oath;
(6) Read the factual allegations and the charges in the notice
to appear to the respondent and explain them in non-
technical language; and
(7) Enter the notice to appear as an exhibit in the Record of
Proceeding.
No. 06-3199 17
Conclusion
Ms. Alimi has not made a substantial argument that she
was denied a constitutional right to due process in her
removal proceeding, nor has she demonstrated that the
proceeding failed to comply with the applicable statutory
standards. Moreover, given her admissions before the IJ,
we cannot say, in any event, that she suffered any prejudice
from the due process matters that she has asked that we
review. Although she was not advised fully of her rights in
her removal proceeding, as provided in the regulations, she
also has failed to demonstrate that this procedural error
caused any prejudice under the circumstances. Accord-
ingly, we must deny the petition and affirm the decision of
the Board.
PETITION DENIED
DECISION AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-6-07