NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 1 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EVERLITA BAGO BASUG, No. 13-71204 Petitioner, Agency No. A059-444-357 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 9, 2018 Honolulu, Hawaii Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges. Everlita Bago Basug petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of her appeal challenging the Immigration Judge’s (IJ) denial of her good faith waiver application and order of removal. We grant the petition. Generally, “a deportation hearing is an administrative proceeding not bound * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. by strict rules of evidence; nonetheless, aliens must be accorded due process. The sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.” Espinoza v. I.N.S., 45 F.3d 308, 310 (9th Cir. 1995), as amended on denial of reh’g (Jan. 12, 1995) (internal citations omitted). To ensure fundamental fairness, the government must make a reasonable effort to provide a respondent with a reasonable opportunity to confront the witnesses against her. Cunanan v. INS, 856 F.2d 1373, 1375 (9th Cir.1988). Basug’s hearing was fundamentally unfair because her absent ex-husband’s written statements were admitted and significantly relied on by the IJ, without any opportunity for Basug to confront him. The IJ noted Basug’s ex-husband’s statements that he was a “victim of fraud” whom Basug had married for immigration purposes, not love. The IJ also adopted his account that Basug had asked him for money when she lived in the Philippines and moved out of their shared home in Hawaii within days of arrival, despite direct conflicts between Basug and her ex-husband’s testimony on these matters. The BIA, in affirming, recognized that the IJ’s decision had taken account of the ex-husband’s testimonial evidence in determining that Basug had not met her burden of proof regarding her intent in entering into the marriage. Yet neither the government nor the IJ made any effort to facilitate alternative methods of confrontation not foreclosed by the ex-husband’s poor health. For 2 example, the government or IJ might have facilitated written interrogatories or a deposition. Bachelier v. Immigration & Naturalization Serv., 625 F.2d 902, 904 (9th Cir. 1980). Such an opportunity was particularly important in this case, given that Basug’s waiver application turns in part on her and her ex-spouse’s comparative credibility. See Ching v. Mayorkas, 725 F. 3d 1149, 1159 (9th Cir. 2015). Alternatively, the IJ could have refused to consider Basug’s ex-husband’s statements and the special agent’s testimony regarding what her ex-husband had said. The IJ could have instead proceeded only on the documentary evidence, Basug’s own testimony, and that of her witnesses. The evidentiary burden was on Basug to establish the bona fides of the marriage. Oropeza-Wong v. Gonzales, 406 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals