UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-60787
Summary Calendar
Lower Court No. A-29-437-324
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BENSON PLAUGH,
Petitioner,
versus
JOHN ASHCROFT, ATTORNEY GENERAL
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
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April 15, 2002
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
EDITH H. JONES:*
Petitioner Benson Plaugh, a native of St. Vincent who has
resided in this country for about 20 years, filed this petition for
review to challenge the order of deportation rendered against him
and sustained by the Board of Immigration Appeals. He challenges
the Board’s rejection of his application for a waiver of a joint
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
petition to remove conditions on him as an alien spouse. Finding
no reversible error of fact of law, we affirm the Board’s decision.
Plaugh overstayed his visitor visa for nearly seven years
until he married a United States citizen in 1989 and had his status
adjusted to that of conditional permanent resident. On April 30,
1991, he filed an I-751 joint petition under § 216(c)(1) of the
Immigration and Naturalization Act, 8 U.S.C. § 1186(c)(1), to
remove his conditional classification. Plaugh signed his own and
his wife’s names to the I-751 joint petition. Before that petition
could be ruled on, Plaugh and his wife divorced, and Plaugh
immediately filed an I-752 waiver application seeking a waiver
pursuant to § 216(c)(4)(B) of the Act based on a good faith
marriage.
At his deportation hearing, the immigration judge found
Plaugh deportable as charged, upheld the denial of the I-752 waiver
ane denied suspension of deportation. (Plaugh does not challenge
the denial of suspension of deportation.)
On appeal, the Board upheld the immigration judge’s
conclusion that Plaugh was “at fault” in failing properly to file
the waiver application. Plaugh challenges this decision on the
grounds that the immigration service should not have been allowed
to admit an affidavit of his ex-wife “who is now a hostile
witness,” and who resisted subpoenas to attend his hearing, and
because it did not matter that he signed his wife’s name to the I-
751 petition. The latter issue is the key to this appeal.
2
Section 216(c) states the criteria under which an alien
spouse can have conditions of residency removed, the first one of
which is that the spouse and the petitioning spouse jointly must
submit a petition to the Attorney General. The purpose of this
provision is to thwart the use of fraudulent marriages to obtain
citizenship status. The statute also permits removal of
conditional status, however, if the qualified marriage was entered
into in good faith, but the marriage has been terminated (other
than through the death of the spouse) and the alien was not at
fault in failing to meet the requirements of § 216(c)(1). INA
§ 216(c)(4)(B), 8 U.S.C. § 1186(c)(4)(B). Pursuant to this
alternative provision, Plaugh filed an I-752 waiver application, a
precondition of which is that is a properly filed I-751 joint
petition. In his immigration hearing, Plaugh admitted that he
signed his then-wife’s name to the I-751 joint petition. Contrary
to Plaugh’s assertion, the regulation clearly required his wife’s
signature:
Before form I-751 may be considered as
properly filed, . . . it must be properly
signed by the alien and the alien’s spouse.
8 CFR § 216.4(a)(1). Plaugh was plainly “at fault” for not
properly filing the I-751 joint petition, as the immigration judge
found and the Board affirmed. Because he was at fault, he was
ineligible for consideration of the I-751 waiver.
Plaugh’s failure to demonstrate that he filed a proper
petition seeking waiver of conditional status should be enough to
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deny him relief. The Board arguably went further, however, and
affirmed the immigration judge’s decision to admit the ex-wife’s
sworn written statement to an immigration examiner, in which she
denied either signing or authorizing her signature on the I-751.
Whether this evidence is strictly necessary to the finding that
Plaugh did not file a proper waiver application is unclear. In any
event, under the circumstances of this case, the Board did not
violate Plaugh’s due process right in admitting his wife’s sworn
statement.
This court has held that affidavits from persons who are
not available for cross-examination will not satisfy the
constitutional test of fundamental fairness unless the INS first
establishes that despite reasonable efforts it was unable to
execute the presence of the witness at the hearing. Olabanji v.
INS, 973 F.2d 1232 (5th Cir. 1992), citing Hernandez-Garza v. INS,
882 F.2d 945, 948(5th Cir. 1989). Moreover, in Olabanji, this
court sided with approval a case holding that INS service of
subpoenas on an ex-wife demonstrated a sufficient to support
admissibility of her affidavit. 973 F.2d at 1236, n.3. The Board
demonstrated that both sides to this proceeding issued subpoenas
and made contact with Plaugh’s ex-wife in an attempt to get her to
testify. Instead, she was “stonewalling.” The ex-wife’s
unavailability was demonstrated in accord with Olabanji. Moreover,
the examiner who took her statement was available for cross-
examination and Plaugh’s counsel received advance notice of the
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statement. These circumstances, together with the fact that her
statement corroborated the undisputed evidence that she did not
sign the form I-751, demonstrate that admission of her statement
was not erroneous.
For these reasons, the petition for relief is DENIED and
the judgment of the Board is AFFIRMED.
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