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Keywords

subpoenaappealhearingaffidavitdue processvisadeportationnaturalizationrespondenthearsay
subpoenaappealhearingaffidavitdue processvisadeportationnaturalizationrespondenthearsay

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Saidane v. Immigration and Naturalization Service

Facts

Petitioner immigrant overstayed a visitor's visa, was denied permanent resident status, and then married an American citizen. Respondent Immigration and Naturalization Service (INS) argued that the marriage was a 'sham.' At the deportation hearing, the government introduced an affidavit of petitioner's spouse. Petitioner objected to the affidavit on grounds that it denied him the opportunity to cross-examine the witness, who had been subpoenaed but failed to respond. The Board of Immigration Appeals found no error and ordered petitioner's deportation, denying him a nine-month voluntary departure period. Petitioner sought review of that decision on grounds that he was denied the fundamentally fair immigration hearing that due process required.

Petitioner immigrant overstayed a visitor's visa, was denied permanent resident status, and then married an American citizen. Respondent Immigration and Naturalization Service (INS) argued that the marriage was a 'sham.' At the deportation hearing, the government introduced an affidavit of petitioner's spouse. Petitioner objected to the affidavit on grounds that it denied him the opportunity to cross-examine the witness, who had been subpoenaed but failed to respond. The Board of Immigration Appeals found no error and ordered petitioner's deportation, denying him a nine-month voluntary departure period. Petitioner sought review of that decision on grounds that he was denied the fundamentally fair immigration hearing that due process required.

Issue

The question presented in this case is whether the government made 'a reasonable effort . . . to afford the alien a reasonable opportunity to confront the witnesses against him or her.'

The question presented in this case is whether the government made 'a reasonable effort . . . to afford the alien a reasonable opportunity to confront the witnesses against him or her.'

Rule

Congress has provided that an alien in a deportation hearing must have 'a reasonable opportunity . . . to cross-examine witnesses presented by the government.' While the rules of evidence are not applicable to immigration hearings, the government's choice whether to produce a witness or to use a hearsay statement cannot be wholly unfettered.

Congress has provided that an alien in a deportation hearing must have 'a reasonable opportunity . . . to cross-examine witnesses presented by the government.' While the rules of evidence are not applicable to immigration hearings, the government's choice whether to produce a witness or to use a hearsay statement cannot be wholly unfettered.

Analysis

The court held that the INS did not make a reasonable effort to produce its witness, as it relied on a hearsay affidavit instead of calling the witness to testify. This rendered the hearing fundamentally unfair, as the government effectively shifted the burden of producing its witness onto the alien. The court found that the minimal effort of issuing a subpoena did not satisfy the government's obligation to afford the alien a reasonable opportunity to confront the witnesses against him.

The court held that the INS did not make a reasonable effort to produce its witness, as it relied on a hearsay affidavit instead of calling the witness to testify. This rendered the hearing fundamentally unfair, as the government effectively shifted the burden of producing its witness onto the alien. The court found that the minimal effort of issuing a subpoena did not satisfy the government's obligation to afford the alien a reasonable opportunity to confront the witnesses against him.

Conclusion

The petition for review is GRANTED, and the case is REMANDED for a hearing that comports with due process.

The petition for review is GRANTED, and the case is REMANDED for a hearing that comports with due process.

Who won?

Petitioner immigrant prevailed because the court found that he had been denied a fundamentally fair hearing.

Petitioner immigrant prevailed because the court found that he had been denied a fundamentally fair hearing.

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