In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1512
A NTONINA S URGANOVA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A078-854-919
A RGUED O CTOBER 6, 2009—D ECIDED JULY 20, 2010
Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.
W OOD , Circuit Judge. Beginning in the late 1990’s, an
unlikely cast of characters assembled in Northwest
Chicago and played out a tumultuous drama, which
culminated in the Department of Homeland Security’s
initiation of removal proceedings against Antonina
Surganova in 2004. Surganova, a 58-year-old Lithuanian
native and Ukrainian citizen, had succeeded in changing
2 No. 08-1512
her immigration status to that of a lawful permanent
resident upon her marriage to Joseph Beaudion, a U.S.
citizen, in April 2001. But, the government learned,
things were not as they seemed. Working on a tip
from Surganova’s former son-in-law, Department of
Homeland Security (“DHS”) charged Surganova with
removability on the ground that she had procured the
adjustment in her immigration status through marriage
fraud. See 8 U.S.C. §§ 1182(a)(6)(C)(I) and 1277(a)(1)(A).
After a full hearing, the Immigration Judge (“IJ”) denied
Surganova’s motion to terminate the proceedings and
concluded that she was removable because her mar-
riage was a sham. On January 31, 2009, the Board of Im-
migration Appeals (“BIA”) affirmed the IJ’s decision.
Surganova now petitions for review of the BIA’s decision.
Bearing in mind the deferential standard of review that
applies here, we see no error in the BIA’s conclusions. Nor
do we find support for Surganova’s assertion that her
statutory and constitutional rights were violated during
the removal proceedings. We therefore deny her petition.
I
Surganova traveled to the United States in 1997 to see
her daughter Tatiana. During this visit, she met Beaudion
and his roommate, Dr. Patrick Russo, who were neighbors
of Tatiana and her husband Andrew Fleming. Surganova
and Beaudion enjoyed each other’s company and spent
a great deal of time together. Although Surganova had to
return to Ukraine, she came back to the United States in
April 2000 on a visitor’s visa to witness the birth of her
No. 08-1512 3
granddaughter, Emily. Over the course of the next year,
Surganova and Beaudion reestablished their relation-
ship. (We are not concerned with the legality, or lack
thereof, of this portion of her stay here.) Some time around
April 9, 2001, Surganova was divorced from her second
husband, Volodimir Volodimirovich Surganov. Two
days later, Surganova and Beaudion announced their
engagement to their family and friends at an Easter
brunch; they married two weeks later in a simple civil
ceremony. In November 2003, Surganova had her im-
migration status adjusted based upon her marriage to
Beaudion.
The marriage had little effect on Surganova’s living
arrangements. She and Beaudion continued living in
separate apartments. Surganova lived in a basement
room in the apartment she shared with her daughter’s
family, while Beaudion and Russo, who had been room-
mates since 1992, resided in a nearby condo that Russo
owned. Beaudion spent between two to four nights a
week at Surganova’s apartment.
Things went smoothly until Tatiana and Fleming went
through a nasty divorce in the summer of 2004. Tatiana
and Fleming traded allegations of adultery and abuse,
and then, escalating the stakes, Fleming evicted Tatiana
and Surganova from the apartment, wrote to DHS,
and asserted that Surganova’s marriage was a sham.
On August 6, 2004, three Immigration and Customs
Enforcement (“ICE”) agents went to Russo’s house to
interview Beaudion. During the course of the interview,
Beaudion signed a sworn statement admitting that he
4 No. 08-1512
had agreed to marry Surganova only so that she could
stay in the United States. Soon thereafter, DHS initiated
removal proceedings against Surganova.
Before the IJ, Surganova presented a large number of
witnesses who all testified that they believed that she had
entered into her marriage with Beaudion in good faith.
Beaudion tried to retract his damaging statement, testi-
fying that he had been under duress during his inter-
view with the ICE agents. The IJ found Beaudion’s
first story more convincing, especially in light of the ICE
agents’ testimony that Beaudion appeared calm and
composed during the interview. In concluding that
Surganova entered into a sham marriage, the IJ placed
significant weight on Beaudion’s sworn statement and
the fact that the couple had never lived together.
The BIA found ample support in the record for the IJ’s
conclusions and affirmed his decision. It rejected
Surganova’s contention that the IJ had erred in denying
her request to obtain additional evidence from the ICE
agents. In response to Surganova’s argument that her
counsel was ineffective, the BIA pointed out that she
failed to follow the well-established procedural require-
ments for raising this type of claim. Even if this proce-
dural misstep were excused, Surganova’s claim still
lacked merit, the BIA concluded, because she attacked
her attorney only for making reasonable tactical deci-
sions. Surganova then filed this timely petition for
review, in which she challenges all of those rulings.
No. 08-1512 5
II
This court reviews questions of law de novo. See Sosebee
v. Astrue, 494 F.3d 583, 589 (7th Cir. 2007). In reviewing
the BIA’s conclusion that Surganova’s marriage was
fraudulent, we ask only whether the decision is “sup-
ported by reasonable, substantial, and probative evi-
dence on the record considered as a whole.” Sina v. Gonza-
les, 476 F.3d 459, 461 (7th Cir. 2007). This court “will
reverse only if the evidence compels a contrary conclu-
sion.” Youkhana v. Gonzales, 460 F.3d 927, 931 (7th Cir.
2006) (citations omitted). Since the BIA’s opinion adopts
and supplements the IJ’s opinion, we review both. See
Patel v. Holder, 581 F.3d 631, 634 (7th Cir. 2009).
To show that Surganova was removable under 8 U.S.C.
§ 1227(a)(1)(A), the government had to prove by clear
and convincing evidence that Surganova procured an
adjustment in her immigration status through marriage
fraud, in violation of 8 U.S.C. § 1182(a)(6)(C)(I). See
Woodby v. INS, 385 U.S. 276, 285-86 (1966); Cordoba-Chaves
v. INS, 946 F.2d 1244, 1249 (7th Cir. 1991). In order to meet
this burden, the government must demonstrate that the
couple never intended to establish a life together. See
King v. Holder, 570 F.3d 785, 788 (6th Cir. 2009); cf. Aioub
v. Mukasey, 540 F.3d 609, 612 (7th Cir. 2008). When as-
sessing the couple’s intent, courts look to both the period
before and after the marriage. See Nikrodhanondha v.
Reno, 202 F.3d 922, 925 (7th Cir. 2000). The inquiry
involves deeply personal questions, including those that
probe the couple’s courtship, their shared experiences,
their living arrangements after marriage, and the degree
6 No. 08-1512
to which they share assets and liabilities. See id.; Aioub,
540 F.3d at 612.
According to Surganova, the IJ improperly concluded
that Surganova’s and Beaudion’s separate living arrange-
ments supported a finding of fraudulent marriage. In her
view, the couple’s decision to reside in separate apart-
ments can easily be explained. Both Surganova and
Beaudion testified that they could not afford to rent a
new place after they got married. While Surganova’s
room was big enough for two people, Beaudion felt that
he could not permanently leave his condo because he
was serving as a caregiver for Russo. Beaudion also
testified that he wanted to stay at his condo because
Russo’s background as a podiatrist was helpful in
dealing with Beaudion’s own recovery from quadruple
bypass surgery. For her part, Surganova testified that she
did not want to leave her apartment because she was
helping take care of her granddaughter and did not think
that Russo would allow her to move into his small apart-
ment. Finally, Surganova argues that the judge failed
to give proper weight to the evidence showing that
Beaudion spent between two to four nights a week at
Surganova’s apartment.
Surganova’s biggest problem is that the account she
has presented bears more than one reasonable interpreta-
tion, and the IJ did not adopt the one that she prefers.
The IJ found that the couple’s limited cohabitation
after marriage weighed against a conclusion that the
marriage was bona fide. He was unpersuaded that the
size of Surganova’s bedroom precluded Beaudion from
No. 08-1512 7
moving in. The IJ did not separately address Beaudion’s
explanation for his continued stay at Russo’s apartment,
but this would be a problem only if that explanation
compelled a different result. But it does not. While
Beaudion initially helped Russo with his neuropathy
when he moved in, Russo testified that he had given up
on treatments for the condition. Russo said that Beaudion
helped him by opening jars, doing laundry, and cooking.
Nothing indicates that Beaudion would have been
unable to assist with these tasks if he lived elsewhere, or
that no one else could have filled in. Even if Russo
helped Beaudion recover from his surgery, there were
periods of time before and after the operation during
which Russo’s help may not have been necessary.
Notably, Beaudion was apparently able to manage with-
out Russo’s assistance during the days and nights he
spent with Surganova.
As the IJ pointed out, Surganova did not help herself
either when it emerged that she had lied about living
at Russo’s apartment on a form she gave to DHS.
Surganova counters that she provided this address only
because she was having difficulty receiving mail at her
apartment, but once again, the IJ was not required to
accept that explanation. He was entitled instead to hold
against her the fact that she did not give the agency her
established address with her daughter.
We realize that in today’s world husbands and wives
may live in separate locations, but in this case Surganova
and Beaudion provided explanations for their decision to
live apart that the IJ found hard to believe. Nothing in
8 No. 08-1512
the record indicates that the IJ was using an inflexible
rule under which a marriage could never be bona fide
without cohabitation. All he did was permissibly weigh
the couple’s living arrangement as one of several factors
supporting his ultimate conclusion.
Another damaging piece of evidence was Beaudion’s
sworn statement at the time of the initial investigation
admitting that the marriage was a sham. As we noted,
he attempted to recant at the hearing. Surganova has
devoted considerable space in her argument to the
details that support Beaudion’s alleged duress while
the ICE agents interviewed him. She points to the early
hour of the day (between 7:00 and 9:00 a.m.), his inex-
perience with government officials, his fear of going to
jail, his delicate medical condition, and the fact that
when the agents arrived he had not yet taken his med-
ications. Russo corroborated Beaudion’s assertion that
he was feeling ill and agitated during the interview.
However Surganova tries to dress it up, this is nothing
more than an attack on the IJ’s credibility finding.
Surganova offers no reason why the IJ erred by crediting
the testimony of ICE Agents Boris Baburich and Frank
Romeo, who were the ones talking with Beaudion that
morning, over Beaudion’s later account. The minor incon-
sistencies she points out between the agents’ account and
Russo’s testimony about details like their exact time of
arrival, who owned the condo, and which high school
Russo attended do not carry the day for her. Agent
Baburich testified that although Beaudion was agitated
and concerned when initially confronted, he appeared
No. 08-1512 9
calm and collected during most of the interview. Neither
agent noticed that Beaudion was under any significant
amount of stress or suffering from a medical ailment.
Lastly, Surganova devotes a great deal of time to an
effort to undermine the testimony of the disgruntled ex-
son-in-law, Andrew Fleming. Initially, Fleming was
helping Surganova in her effort to stay in the United
States. On November 18, 2003, he submitted a Form I-
864 with an affidavit to DHS as a co-sponsor for
Surganova’s petition to change her immigration status
based on her marriage to Beaudion. In his submission,
Fleming swore that Surganova’s current address was
Beaudion’s condominium on North Clinton street. Yet a
mere seven months later, Fleming changed his tune
when he sent a letter and affidavit to DHS alleging that
their marriage was a fraud. Contrary to his representa-
tion in the Form I-864, Fleming told DHS that Surganova
had never resided with Beaudion, which was what caused
Fleming to form the impression that the marriage was
a sham.
To reconcile these seemingly conflicting affidavits,
Fleming testified that he did not have any reason to
question the validity of Surganova’s marriage at the time
he filed the Form I-864. Although this has little bearing
on the ultimate outcome of Surganova’s petition, we
find Fleming’s story hard to believe. The proof of
Surganova’s fraudulent marriage that Fleming provided
in 2004—Surganova’s and Beaudion’s separate resi-
dences—was apparent to him at all times, because
Surganova was living in Fleming’s apartment for every
10 No. 08-1512
minute of the relevant period. It is more likely that the
true reason behind Fleming’s sudden change of heart
was related to his divorce from Tatiana. Fleming
reported Surganova to DHS only a month after he
evicted Tatiana and Surganova from his apartment. He
testified that Surganova was “very much involved in the
failure of [his] marriage.” As further evidence of the
bad blood between the two, he later obtained protective
orders against Surganova and filed suit against her for
infliction of emotional distress. But the question remains,
when was Fleming telling the truth: back in 2003,
when his marriage was intact and he was helping his
mother-in-law, or in 2004, after he had turned angry
and bitter? It is difficult to see how both affidavits can
be true, although we do not rule it out, as this issue is
not before us. But if Fleming in fact knowingly sub-
mitted a false affidavit, the wrongdoing would be par-
ticularly egregious given that he is a licensed attorney
in Illinois.
III
Besides contesting the IJ’s final order of removal,
Surganova contends that two additional rulings deprived
her of the fair proceeding to which she is entitled under
the statute: first, the IJ’s denial of her renewed “Motion
for Issuance of Subpoenas for Officers’ Materials & to
Recall Officers as Witnesses,” and second, his denial of
her motion for a new trial based upon ineffective as-
sistance of counsel. We are authorized to review her
contention that the denial of these motions violated her
No. 08-1512 11
rights under the Fifth Amendment; to the extent that she
is complaining about the IJ’s failure to follow pro-
cedures spelled out in regulations, we review his deci-
sions for abuse of discretion. See Kucana v. Holder, 130
S. Ct. 827 (2010).
Surganova first complains that the IJ violated her statu-
tory right to present evidence in support of her case
when he denied her motion to introduce additional
evidence. See 8 U.S.C. § 1229a(b)(4)(B). In line with the
plain language of the statute, this court has held that
a petitioner must be given “a reasonable opportunity . . .
to present evidence on [her] own behalf.” Rehman v.
Gonzales, 441 F.3d 506, 509 (7th Cir. 2006) (quoting 8 U.S.C.
§ 1229a(b)(4)(B)). Whether the IJ complied with this
statutory mandate is a question of law. See, e.g., Figueras v.
Holder, 574 F.3d 434, 437 (7th Cir. 2009); Rapheal v. Mukasey,
533 F.3d 521, 532 (7th Cir. 2008).
Though Surganova has a statutory right to present
evidence to the IJ (and we have no reason to think that
this statutory right gives less than the Fifth Amend-
ment’s due process clause would demand), she can
prevail only if she can demonstrate that the IJ’s decision
to exclude evidence caused her prejudice. See Alimi v.
Gonzales, 489 F.3d 829, 837 (7th Cir. 2007); Zamora-Mallari
v. Mukasey, 514 F.3d 679, 696 (7th Cir. 2008). She might
do so, for example, by showing that the IJ barred “com-
plete chunks of oral testimony that would support [her]
claims,” or “curtailed [her] testimony on matters that go
to the heart of the claim,” or “where evidence excluded
by the IJ ‘had the potential for affecting the outcome of
12 No. 08-1512
the proceedings.’ ” Lopez-Monterroso v. Gonzales, 236
F. App’x 207, 212 (7th Cir. 2007) (collecting cases); see
also Chavez-Vasquez v. Mukasey, 548 F.3d 1115, 1118 (7th
Cir. 2008).
This is a standard that Surganova has not met. She
wanted, through her renewed motion, to obtain the
ICE agents’ I-213 investigative report and their notes
detailing the August 2004 interview with Beaudion. She
also wanted to call ICE Agents Baburich and Romeo back
to the stand to testify. The IJ saw this as an attempt by
Surganova’s newly appointed counsel to change strategy
midway through the proceedings. Prior counsel, in the
judge’s view, had already conducted a full and adequate
cross-examination of the government’s witnesses. In
addition, the judge concluded, the evidence was largely
peripheral. Surganova wanted to use the I-213 investiga-
tive report to show that it did not record the time the
agents arrived at Russo’s condo. But nothing turned on
this; the earliest possible time, 7:00 a.m., would not have
been unreasonably early. Surganova also speculated
that the I-213 and the agents’ notes might have been
inconsistent with their testimony, but this is wishful
thinking. Even if Surganova could show that the agents’
recollections were at times imperfect, it is unlikely that
this would have called into question the validity of
Beaudion’s sworn statement. In short, the IJ’s ruling on
this point was an acceptable exercise of his authority to
manage the hearing.
Surganova’s ineffective assistance of counsel contention
fails for similar reasons. Although aliens do not possess a
No. 08-1512 13
Sixth Amendment right to counsel, we have recognized
that the denial of effective assistance of counsel may
under certain circumstances violate the due process
guarantee of the Fifth Amendment. See Jezierski v.
Mukasey, 543 F.3d 886, 888 (7th Cir. 2008) (citing Kay v.
Ashcroft, 387 F.3d 664, 676-77 (7th Cir. 2004)). But see Patel
v. Gonzales, 496 F.3d 829, 831 (7th Cir. 2007) (“[A]liens do
not have a constitutional right to effective counsel.”). In
Kay, we expressed grave doubts about the attorney’s
performance, since he had mislabeled motions and
ignored a “wealth of corroborative evidence in the rec-
ord.” Kay, 387 F.3d at 676.
In addition to the constitutional claim, Surganova also
asserts that the IJ misapplied the procedural requirements
for an ineffective assistance claim when it denied her
motion for a new trial. The problem for Surganova is
that the BIA hedged in its opinion, explaining that even
if Surganova had complied with the requirements set
forth in Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988),
her claim would still fail because she had not shown
that her counsel’s actions had prejudiced her case. We
note that the legal standards that the BIA wishes to
follow for these claims has been in a state of flux. In early
2009, the Board abrogated Lozada, in Matter of Compean,
24 I&N Dec. 710 (BIA 2009). Later that year, the Attor-
ney General withdrew the Compean decision, 25 I&N
Dec. 1 (AG 2009), and ordered the Executive Office of
Immigration Review to go back to the Lozada standards
pending a comprehensive review of the rules in this
area. To our knowledge, that review is still ongoing. Even
if it ends up as favorably as possible for petitioners
14 No. 08-1512
like Surganova, however, it would still be necessary for
them to demonstrate prejudice resulting from the attor-
ney’s substandard performance. (Indeed, prejudice is a
critical element even for cases involving the Sixth Amend-
ment right to effective assistance of counsel. See Strickland
v. Washington, 466 U.S. 668 (1984).)
Surganova asserts only that her lawyer was ineffec-
tive because the lawyer should have obtained the I-213
investigative report and should have objected to the ICE
agents’ testifying from their memory of the relevant
events. We have already explained why it is unlikely
that either the report or the challenge to the testimony
would have made a difference. This is enough to put to
rest Surganova’s complaint about the effectiveness of
the legal assistance she received.
***
We D ENY Surganova’s petition for review.
7-20-10