Argued December 4, 2012
Petition for Review of an Order of the Board of Immigration Appeals. No. a078-859-072
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 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 prepared seven years after it occurred. Pouhova petitions for review of the Board of Immigration Appeals' decision affirming 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).
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 passport?
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.
Q24: Do you still owe money to the people who arranged for you to travel to the ...