Bassam Hanna v. Loretta Lynch , 644 F. App'x 261 ( 2016 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-1365
    BASSAM GERGES HANNA,
    Petitioner,
    v.
    LORETTA E. LYNCH, Attorney General,
    Respondent.
    On Petition for Review of an Order of the Board of Immigration
    Appeals.
    Argued:   March 22, 2016                    Decided:   April 12, 2016
    Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
    Judge.
    Petition for review denied by unpublished opinion. Senior Judge
    Davis wrote the opinion, in which Judge Wynn and Judge Diaz
    concurred.
    ARGUED: Soulmaz Taghavi, FAYAD LAW, PC, Henrico, Virginia, for
    Petitioner.    Alison Marie Igoe, UNITED STATES DEPARTMENT OF
    JUSTICE, Washington, D.C., for Respondent.       ON BRIEF: Tamar
    Jones, FAYAD LAW, PC, Richmond, Virginia, for Petitioner.
    Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
    Civil Division, Christopher C. Fuller, Deputy Chief, National
    Security Unit, Office of Immigration Litigation, UNITED STATES
    DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
    Unpublished opinions are not binding precedent in this circuit.
    2
    DAVIS, Senior Circuit Judge:
    Following a removal hearing, an immigration judge (“IJ”)
    found Petitioner Bassam Gerges Hanna, a national of Lebanon and
    a permanent resident of the United States, removable for being
    inadmissible    at   the   time        of   his   adjustment       of   status    under
    Section   237(a)(1)(A)       of       the   Immigration     and    Nationality     Act
    (“INA”)   (codified     at        8    U.S.C.     §   1227(a)(1)(A)),       and    for
    committing marriage fraud under Section 237(a)(1)(G)(ii) of the
    INA (codified at 8 U.S.C. § 1227(a)(1)(G)(ii)). In this timely
    petition for review, Hanna argues that the IJ erred in three
    distinct respects: (1) in finding that the government satisfied
    its   burden   of    proving      removability        by   clear    and   convincing
    evidence; (2) in depriving him of due process insofar as the IJ
    admitted into evidence a sworn statement by his ex-spouse while
    not procuring the ex-spouse’s presence at the removal hearing,
    thereby failing to make her available for cross-examination; and
    (3) in excluding evidence bearing on the government’s alleged
    motive in seeking his removal. We discern no error and deny the
    petition for review.
    I.
    Hanna originally entered the United States from Lebanon in
    1985 as a B-2 non-immigrant for pleasure. Beginning in 1994,
    Hanna operated a convenience store and then worked in used car
    3
    sales in North Carolina. On May 15, 2001, Hanna married Amy
    Williford at a Raleigh, North Carolina courthouse.
    The    dispositive      factual          and    legal    issue    at    the    removal
    hearing before the IJ was whether the government proved by clear
    and    convincing         evidence       that    the    marriage        was    fraudulently
    entered       into   in    order     to   provide       Hanna    with     an   immigration
    benefit. The IJ so found in a comprehensive written opinion, and
    the    Board    of   Immigration          Appeals      (“BIA”)    sustained          the    IJ’s
    conclusion. The conflicting evidence bearing on the question is
    summarized below.
    A.
    The government sought to make its case for removability by
    calling two witnesses, Hanna and Department of Homeland Security
    (“DHS”) Agent Christopher Brant, coupled with the introduction
    of several exhibits, including numerous documents from Hanna’s
    immigration file that had been executed by Hanna and Williford.
    Hanna offered his own testimony, together with affidavits from
    three    of    his   friends       who    affirmed       they    spent    time       with   the
    couple during the marriage, in support of his contention that
    his marriage to Williford was entirely bona fide, if troubled.
    In its totality, the testimonial and documentary evidence tended
    to    establish      the    following      factual       and    procedural       course      of
    events.
    4
    1.
    In    2008,       as    part      of        a    larger      money       laundering
    investigation, Agent Brant commenced an investigation into the
    export      of    certain     vehicles    to       Africa    and    the     Middle     East,
    focusing on the principals, including Hanna, of an enterprise
    known as Cary Auto Sales located in Cary, North Carolina. While
    reviewing Hanna’s immigration records, Agent Brant discovered a
    “tip line call” from January 23, 2007, indicating that Hanna
    might have engaged in marriage fraud. Upon Agent Brant’s review
    of Hanna’s and Williford’s motor vehicle records, his suspicions
    were aroused when he compared the address changes in Williford’s
    DMV records with the dates and addresses reported in documents
    from     Hanna’s      immigration        file.         Specifically,        Agent      Brant
    uncovered two inconsistencies. First, he noticed that Williford
    had    changed     her   claimed      addresses         to   Hanna’s      addresses     days
    prior to Hanna’s immigration interviews, and then had changed
    her    addresses         to    her     mother’s         addresses         following      the
    interviews. Agent Brant had seen this behavior in other cases,
    and    it   was    indicative     of     fraud.        Second,     when   Williford     was
    charged with speeding in February 2003, during a period when she
    and    Hanna      were    ostensibly       living        together,        she   gave     law
    enforcement officers her mother’s address in Siler City, North
    Carolina.
    5
    Agent Brant sought to question Williford about the apparent
    discrepancies. Williford originally declined to speak with him,
    but she later agreed to do so with her lawyer present. In a
    sworn statement, Williford confessed to Agent Brant that she had
    married Hanna for financial remuneration in return for assisting
    Hanna       with    his   immigration    status. 1   Regarding   Williford’s
    admissions to Agent Brant contained in the statement he took
    from her, Hanna testified at the removal hearing that Williford,
    believing he was very wealthy, had demanded $1,000,000 from him,
    which he had refused to pay. Therefore, he surmised, she had
    provided the statement to Agent Brant as a form of revenge.
    2.
    The details of Williford’s motor vehicle record, as well as
    Hanna’s       immigration      file    and   removal   hearing    testimony,
    ultimately         justified   Agent    Brant’s   suspicions.    In   a   2001
    biographic information form from his immigration file, Hanna had
    1
    In her sworn statement, Williford attested that the
    statement was true and was being given freely and voluntarily.
    She stated that the wedding was witnessed by two strangers who
    were also getting married at the courthouse. There were no
    pictures and, while her mother knew about the wedding, her
    father did not. She stated that she and Hanna did not go on a
    honeymoon and did not consummate the marriage. Hanna paid her
    $1,000 at the time of the wedding and $1,000 at the time of the
    divorce, and he also gave her a 1989 Honda Accord. She stated
    that she had married Hanna for the money and to assist him in
    adjusting his immigration status. The couple never lived
    together.
    6
    stated that he lived in Madison, New Jersey, from January 2001
    to May 2001. This assertion arguably conflicted with Hanna’s
    removal hearing testimony that he and Williford had dated for
    several months in early 2001 in North Carolina, just prior to
    their      May    2001    wedding.      On       August    14,    2001,      soon    after      the
    wedding,         Williford      filed        a    Form    I-130      Petition       for     Alien
    Relative         with     U.S.       Citizenship          and     Immigration            Services
    (“USCIS”), seeking a visa for Hanna on the basis that he was now
    a relative of a U.S. citizen. In the I-130 petition, Williford
    asserted that she and Hanna lived together on West Skylark Drive
    in Cary, North Carolina. She had changed her address at the DMV
    to    West    Skylark      Drive       two       months   prior    to    filing      the    I-130
    petition.         On    September      24,        2001,   Hanna      filed    a     Form    I-485
    Application to Register Permanent Resident or Adjust Status with
    the   USCIS.       In    the    I-485    application,           Hanna    asserted        that   he
    qualified for permanent resident status because he was married
    to    a    U.S.    citizen       and    Williford’s          I-130      petition     had     been
    approved.        He     also   asserted,          falsely,    that      he   had    never    been
    charged with any crimes, as he had in fact been convicted of
    larceny. In March 2002, just six months after Hanna filed the I-
    485 application, Williford changed her address at the DMV to her
    mother’s home on Derry Down Lane in Apex, North Carolina.
    During a USCIS interview near the middle or end of 2002,
    Hanna      had    denied       any   criminal          convictions.          At    the    removal
    7
    hearing, Hanna testified that he was unaware that he had not
    disclosed     the   criminal        charges      in    the     I-485   application;    he
    thought that he had provided his criminal record to be added to
    his immigration file but did not recall when. He also stated
    that he and Williford lived together on Shady Meadow Circle in
    Cary, North Carolina. According to her DMV records, Williford
    changed her address to Shady Meadow Circle two days before the
    interview. In March 2003, just a few months after the interview,
    Williford changed her address again to her mother’s new house in
    Siler City, North Carolina. That change was consistent with a
    speeding ticket that Williford received in February 2003, which
    also listed her mother’s Siler City address.
    During      the    removal     hearing,         Hanna    addressed      Williford’s
    frequent address changes, testifying that Williford lived with
    her mother while they dated, but that he and Williford lived
    together most of the time during the marriage. Williford would
    frequently       leave      their     home       following         arguments    to    live
    temporarily at her mother’s home, sometimes for weeks or months
    at a time.
    Other      evidence    further     indicated            an   atypical    matrimony.
    According to Hanna’s removal hearing testimony, he met Williford
    in   1996   as    his    convenience     store,        called      Cary   Beverage,   was
    located next to a mechanic shop operated by Williford’s aunt and
    uncle. He and Williford started dating in early 2001 and had
    8
    dated for three or four months by the time they wed, but they
    “really did not get officially engaged.” A.R. 141. He asked her
    to marry him in or about February or March 2001. No friends or
    family    accompanied        them   to    the    courthouse       for    the    wedding
    because, although Williford’s mother offered to come, members of
    his own family could not come and so he told Williford’s mother
    not to attend. He testified that he married Williford because he
    loved her and denied that he offered to pay Williford for the
    marriage. They bought their wedding rings at the mall and then
    honeymooned in Myrtle Beach a few weeks after the wedding.
    During the marriage, Hanna made eight trips to Lebanon,
    most of them for more than four weeks; Williford did not join
    him on any of the trips because, according to Hanna, she was
    unnerved    by   the    war   in    Lebanon.     Williford       never   met    Hanna’s
    parents    but   had    spoken      to   them    by    telephone,       and    she    knew
    Hanna’s two brothers who lived in North Carolina.
    According to Hanna’s removal hearing testimony, in March
    2006,    Williford     told    Hanna     that    she    wanted    a    divorce.      Hanna
    filed for divorce employing a lawyer selected by Williford, but
    Williford    did       not    respond     to     or     appear    in     the    divorce
    proceedings.     When    Hanna      signed      the    divorce   paperwork       at    the
    lawyer’s office, and when the divorce was granted in October
    2006, he affirmed that he and Williford had been separated for a
    year. In other words, he affirmed that they had been separated
    9
    since at least October 2005 and not only as of March 2006. In
    addressing this apparent inconsistency, Hanna testified at the
    removal hearing that he did not know that he had affirmed they
    had been separated for a year because he signed the divorce
    documents without reading them.
    On July 25, 2007, Hanna filed a second N-400 Application
    for Naturalization (the first having been denied). In the 2007
    application, Hanna asserted that he had lived on Buckland Mills
    Court in Cary, North Carolina, since June 2006, and that he had
    lived    there    with     his     wife    until      she     moved   out      before    the
    divorce,   statements        that    compounded        the     earlier      discrepancies
    about Williford’s address and their date of separation. He also
    disclosed his 1995 misdemeanor larceny conviction. Consequently,
    his second N-400 application was denied on the ground that he
    had   failed     to     disclose    the    conviction         on   his   earlier        I-485
    application       and    falsely       testified       that     he    had     never     been
    convicted of a crime during his adjustment interview in October
    2002.
    B.
    On September 29, 2011, based on Agent Brant’s findings, the
    DHS served Hanna with a notice to appear, charging him with
    being    inadmissible       at   the      time   of    adjustment        of   immigration
    status    under       Section    237(a)(1)(A)          and    marriage        fraud     under
    Section    237(a)(1)(G)(ii).           Because        Hanna    denied       that   he    had
    10
    entered into a fraudulent marriage, a contested removal hearing
    was held before an IJ on April 5, 2013.
    Prior   to   the   removal    hearing,       Hanna    filed    a    motion    in
    limine seeking to admit evidence that the removal proceedings
    were initiated in bad faith and only because the DHS and the
    Department of Justice had failed in several attempts to charge
    him with terrorism related activity. He also wished to show that
    Williford’s sworn statement was coerced or motivated by revenge.
    The IJ denied the motion in limine, concluding that there was no
    evidence     of     “malfeasance     by    the    DHS   in   placing       [Hanna]    in
    removal proceedings” and that the investigations that gave rise
    to the removal proceedings were not relevant to the substantive
    removability issues. A.R. 93.
    On   July    17,   2013,     the    IJ    issued     a   14-page      decision
    sustaining the charges of removability against Hanna. The IJ
    first    evaluated     each   witness’s         credibility.     The   IJ    explained
    that he found Hanna’s testimony not credible based on a number
    of internal inconsistencies and on the basis that some of his
    testimony was simply implausible, e.g., that he dated Williford
    while she lived in North Carolina and he lived in New Jersey.
    The     IJ   found    Agent   Brant’s       testimony        credible       given    his
    credentials and that his testimony was consistent with other
    evidence.
    11
    Ultimately,         the   IJ      concluded    that    the    DHS     had    shown    by
    clear      and        convincing      evidence      that     Hanna     entered       into     a
    fraudulent marriage to benefit his immigration status. The IJ
    found      the    circumstances           surrounding        the    courthouse       wedding
    suspect,      given       that     no     family     or    friends     attended,          Hanna
    purportedly lived in New Jersey during the courtship, and the
    wedding occurred a mere two months after his extant immigration
    status in the United States had expired.
    The       IJ     specifically        found    that      the     couple       had     not
    continuously lived together before the alleged separation and
    that    the       constant       changes      of     addresses        before       important
    immigration dates, and the inconsistencies of Williford’s home
    address on legal documents, also indicated that the marriage was
    fraudulent. The IJ found that Hanna’s frequent and lengthy trips
    abroad without his spouse also evidenced the lack of bona fides
    in the marriage.
    As for Williford’s sworn statement, the IJ noted that Agent
    Brant gave her the opportunity to review the statement and make
    changes.      Although       Williford       was     not   present      at    the    removal
    hearing, the IJ concluded that the statement was relevant based
    on   the     totality       of     the    record.    The     IJ,     however,      gave     the
    statement reduced weight because Williford was not subject to
    cross-examination.
    12
    Finally, the IJ concluded that Hanna had failed to rebut
    the    DHS’s     showing    that       he        is     removable.         Hanna    submitted
    affidavits by three of his friends that described the nature of
    Hanna’s      marriage,     but    the       IJ    did       not     find    the     affidavits
    reliable because the witnesses were biased, the affidavits were
    dated after the marriage was called into question, and some of
    the    witnesses’      descriptions         of        the   marriage       conflicted      with
    Hanna’s      removal    hearing    testimony.               For    example,       one   affiant
    claimed that Hanna and Williford had been dating for “several
    years” and were seen as a couple as early as 2000. A.R. 248. The
    IJ also gave the affidavits limited weight because none of the
    affiants testified at the removal hearing. Moreover, although
    bank    statements      showed    that       Hanna          and    Williford       were   joint
    account      holders,     none    of    the       checks          drawn    on   the     account
    contained Williford’s printed name or signature, thus supporting
    the inference that the couple was “married . . . in name only.”
    A.R. 100.
    Hanna appealed the IJ’s decision to the BIA. The BIA agreed
    with the IJ that the DHS had proved by clear and convincing
    evidence that Hanna “failed to fulfill his marital agreement
    with   his     ex-wife,    and   that       he    obtained         his     lawful     permanent
    residence through fraud or willful misrepresentation of material
    fact.” A.R. 5. It also agreed that Hanna’s evidence of a bona
    fide marriage was insufficient to rebut the DHS’s evidence and
    13
    that   the   IJ    had    not    erred    or    abused     his      discretion    in    his
    evidentiary rulings. On March 17, 2015, the BIA dismissed his
    appeal. This timely petition for review followed.
    II.
    A.
    When “the BIA adopts the IJ’s decision and includes its own
    reasons for affirming, we review both decisions.” Djadjou v.
    Holder, 
    662 F.3d 265
    , 273 (4th Cir. 2011) (quoting Marynenka v.
    Holder, 
    592 F.3d 594
    , 600 (4th Cir. 2010)). We must uphold the
    agency’s decision unless it is “manifestly contrary to the law
    and an abuse of discretion.” 
    Id. (quoting Lizama
    v. Holder, 
    629 F.3d 440
    ,     444     (4th     Cir.        2011));     see       also    8     U.S.C.
    § 1252(b)(4)(C). The agency abuses its discretion “if it failed
    to   offer   a    reasoned      explanation       for    its     decision,   or    if    it
    distorted or disregarded important aspects of the applicant’s
    claim.” Tassi v. Holder, 
    660 F.3d 710
    , 719 (4th Cir. 2011).
    We review the agency’s factual findings under a “narrow and
    deferential” standard. 
    Djadjou, 662 F.3d at 273
    (citing Dankam
    v. Gonzales, 
    495 F.3d 113
    , 119 (4th Cir. 2007)). “We seek to
    ensure    that    the     agency’s   factual       findings         are   supported      by
    substantial evidence,” which is evidence that “exists to support
    a finding unless the evidence . . . was such that any reasonable
    adjudicator       would    have    been        compelled       to    conclude     to    the
    contrary.” Id.; see also 8 U.S.C. § 1252(b)(4)(B).
    14
    Legal    contentions        raised       in    the   immigration             context,
    including those alleging a denial of due process, are reviewed
    de novo. Xing Yang Yang v. Holder, 
    770 F.3d 294
    , 302 (4th Cir.
    2014); Blanco de Belbruno v. Ashcroft, 
    362 F.3d 272
    , 278 (4th
    Cir. 2004).
    B.
    Hanna contends that (1) the government failed to satisfy
    its   burden   of    proving      removability        by   clear    and       convincing
    evidence; (2) the admission into evidence of Williford’s sworn
    statement without procuring her presence at the removal hearing
    so that she could be cross-examined deprived him of due process;
    and (3) the exclusion of evidence bearing on the government’s
    alleged   motive     in    seeking     his     removal     deprived          him    of   due
    process. We consider each of these issues in turn.
    1.
    Preliminarily, the government argues that Hanna has waived
    any   argument      as    to    whether    the       DHS   proved       by    clear      and
    convincing     evidence        that   Hanna    was    subject      to    removal.        The
    government     argues     that    this    is    so    because   Hanna         failed     to
    address his burden to show that no “reasonable person would have
    been compelled” to reach the same result. Appellee’s Br. 25, 30.
    We reject this contention. In his opening brief, Hanna argues
    that the totality of the evidence “does not prove a fraudulent
    marriage by clear and convincing evidence.” Appellant’s Br. 18.
    15
    Although    he       does      not   use     the       magic   words,      he,       in   essence,
    launches       the       appropriate        argument       and      thus       should      not    be
    penalized by elevating form over substance.
    In any event, we have no hesitation in concluding that the
    IJ’s     findings        and    decision,          as     adopted     by       the    BIA,       were
    thorough, well reasoned, and supported by substantial evidence,
    and that       the    IJ      satisfactorily           identified       the     bases      for    the
    conclusion that he was persuaded clearly and convincingly that
    the marriage was fraudulent. No reasonable person would have
    been compelled to reach a different result.
    Hanna    and       Williford        were    married       only     two       months   after
    Hanna’s lawful immigration designation expired. That no family
    or friends attended the wedding, and that there were no photos
    taken,    suggests          that     Hanna    and       Williford        did    not       view   the
    ceremony       as    a     solemn     and     special          occasion        as    would       most
    genuinely married couples. Although Hanna testified in a way
    that, if believed, might explain these circumstances, on the
    whole record, the IJ was not bound to credit that testimony, as
    he did not.
    Hanna testified that he and Williford had only dated a few
    months,    which         by    itself      does     not    erect     a     badge      of     fraud.
    Nevertheless, the IJ permissibly discredited Hanna’s testimony
    that the courtship was genuine in light of the fact that during
    this brief courtship in early 2001, the records show that Hanna
    16
    was     living   in     New        Jersey     while     Williford      lived        in     North
    Carolina.
    The     record     shows       that        Williford    changed        her        address
    multiple times, assertedly living in two different places at the
    same time, particularly in advance of significant immigration
    dates. For example, on October 23, 2002, two days prior to a
    scheduled immigration interview, Williford changed her address
    at the DMV to the Shady Meadow Circle residence, where Hanna had
    claimed they lived. Months later, however, in February 2003, in
    response to a traffic citation, Williford claimed that she lived
    at her mother’s address in Siler City. She officially changed
    her address to Siler City at the DMV the following month. In the
    same vein, Hanna testified that he and Williford separated in
    March 2006 but then noted in his naturalization application that
    they lived together in June 2006, and he noted in the divorce
    proceedings that they had been separated since at least October
    2005.
    Hanna      attempted           to      reconcile        these      and            similar
    discrepancies by testifying that Williford often left for weeks
    at a time following disagreements and chose not to accompany him
    on    lengthy    trips        abroad.       The    IJ   permissibly     discounted           the
    probative value of this testimony, just as he discounted Hanna’s
    assertion      that     he,    a    businessman         with   more    than    a     middling
    competence in the English language, did not read the divorce
    17
    paperwork before signing it. Of course, the IJ also permissibly
    considered the impeaching effect of Hanna’s failure to disclose
    his criminal history, a conviction for larceny, on earlier filed
    immigration documents. 2
    Indeed, given the binary nature of the question before the
    IJ,   Hanna’s     false   or   implausible   testimony,     which    the   IJ
    permissibly characterized as “evasive[],” A.R. 95, did more harm
    than good. He intended his testimony to show that the marriage
    was genuine, but it actually tended to show that the marriage
    was   not.   No   reasonable   person   reviewing   the   totality   of    the
    evidence in this record, in combination with the IJ and BIA’s
    credibility determinations, would be compelled to conclude that
    the marriage was bona fide. Accordingly, we conclude that the
    government’s showing was sufficient to enable the IJ to find by
    2Other evidence probative of the fraudulent character of
    the marriage was likewise permissibly weighed by the IJ. While
    the couple purportedly shared bank accounts at Wachovia, all of
    the checks that Hanna produced bore only his name and signature.
    Hanna could not explain why, if Williford wanted the divorce as
    he claimed, she did not respond to the divorce complaint or
    appear for the divorce proceedings. He also could not explain
    why Williford’s address was altered on her pay stubs to conceal
    that her employer recorded her address at her mother’s residence
    throughout 2002, the year after their wedding. In other words,
    there were several inconsistences apparent in the pertinent
    documents from the Hanna immigration file presented during the
    removal hearing, and the only evidence to rebut them was Hanna’s
    confusing and questionable testimony. Meanwhile, Agent Brant’s
    testimony and Williford’s sworn statement were consistent with
    and supported by the exhibits.
    18
    the    clear    and   convincing       standard     that      the   marriage      was
    fraudulently entered into.
    2.
    Hanna next argues that the IJ denied him due process when,
    having admitted Williford’s sworn statement, the IJ failed to
    compel    Williford   to     attend    the    removal    hearing    and    testify,
    thereby depriving Hanna of an opportunity to cross-examine her.
    We conclude that Hanna suffered no cognizable prejudice from
    Williford’s unavailability for cross-examination. 3
    “The immigration judge may receive in evidence any oral or
    written statement that is material and relevant to any issue in
    the case previously made by the respondent or any other person
    during    any   investigation,       examination,       hearing,    or    trial.”    8
    C.F.R. § 1240.7(a). Moreover, immigration judges have the power
    to    “interrogate,       examine,    and    cross-examine      aliens     and    any
    witnesses.”     
    Id. § 1003.10(b).
          Because    the   Federal     Rules     of
    3 Upon Hanna’s testimony that Williford had attempted
    unsuccessfully to, in effect, “extort” $1,000,000 from him as
    the reason for her adverse admissions, see supra p. 6, the DHS
    attempted to procure Williford’s voluntary presence during a
    continuance of the removal hearing granted at its request by the
    IJ. See A.R. 213-15. The DHS was unable to get her to testify.
    The record is silent as to why Williford refused to appear
    voluntarily, why she was not subpoenaed, or whether she needed
    or required, or was offered or enjoyed if she did, prosecutorial
    immunity for her role in the events at issue. Our resolution of
    the questions presented does not require us to explore any such
    issues.
    19
    Evidence do not apply in immigration proceedings, challenges to
    evidentiary       determinations       are   limited     to      due    process
    considerations. Anim v. Mukasey, 
    535 F.3d 243
    , 256 (4th Cir.
    2008) (citing Alexandrov v. Gonzales, 
    442 F.3d 395
    , 404 (6th
    Cir. 2006)). To show a due process violation, the petitioner
    must establish that: (1) a defect in the proceeding rendered the
    proceeding fundamentally unfair and (2) the defect prejudiced
    the outcome of the case. 
    Id. Williford’s information
    obviously was highly relevant and
    her   statement    was    admissible   because   it    directly    related    to
    whether   the   marriage     was   fraudulent.   We    discern    no   lack   of
    reliability in the circumstances surrounding the taking of the
    statement by Agent Brant. Agent Brant testified under oath as to
    his conversation with Williford before she gave the statement,
    that she gave the statement with her attorney present, and that
    she was given the opportunity to review the statement and make
    corrections. No independent evidence contradicted or undermined
    anything contained in the sworn statement, and significantly,
    the IJ specifically noted that he gave the statement limited
    weight because Williford was not subject to cross-examination.
    While the opportunity to cross-examine a witness “is even
    more important where the evidence consists of the testimony of
    individuals whose memory might be faulty or who, in fact, might
    be    perjurers      or     persons      motivated     by     malice,     [or]
    20
    vindictiveness,” such as ex-spouses, Ching v. Mayorkas, 
    725 F.3d 1149
    , 1158 (9th Cir. 2013) (quoting Goldberg v. Kelly, 
    397 U.S. 254
    , 270    (1970)),     the    risk   of     erroneous    deprivation     is    less
    present when there is substantial independent evidence that the
    marriage is fraudulent. Indeed, “[d]ue process is flexible and
    calls     for    such    procedural      protections       as     the   particular
    situation demands.” Gilbert v. Homar, 
    520 U.S. 924
    , 930 (1997)
    (quoting Morrissey v. Brewer, 
    408 U.S. 471
    , 481 (1972)). It “is
    not a technical conception with a fixed content unrelated to
    . . .    [the]    circumstances.”       
    Id. (quoting Cafeteria
       &     Rest.
    Workers    v.    McElroy,      
    367 U.S. 886
    ,   895   (1961)).     Given    the
    totality    of   the    evidence     here,    and    the   substantial    evidence
    (apart    from   the    Williford      statement)     that      the   marriage   was
    fraudulent, there is no basis to conclude that the failure to
    cross-examine Williford, and the limited weight afforded to her
    statement, was fundamentally unfair.
    We also fail to see how Hanna was prejudiced by Williford’s
    absence. Even without the sworn statement, there was sufficient
    unrebutted evidence that the marriage was fraudulent. The IJ
    gave several cogent reasons for his conclusion in that regard,
    which we will not repeat here. Suffice to say, attempts to show
    that the couple lived at the same address or shared the same
    assets (the bank accounts) were fraught with inconsistencies and
    were themselves self-defeating. Moreover, the IJ found credible
    21
    Agent    Brant’s      testimony       as     to     the       suspiciousness       of   the
    relationship.         Hanna    argues,        somewhat             incongruously,       that
    Williford’s        testimony     could        have        clarified         some   of   the
    discrepancies noted in the documentary evidence related to where
    she was living and other matters. We fail to see how this is so;
    her statement fully explained her motivation for completing the
    immigration documents as she did.
    Finally,     while     Hanna’s      desire        to    challenge       Williford’s
    credibility is perhaps understandable, it is his own credibility
    (more particularly, his lack thereof) that sunk this ship. We
    defer   to    an   IJ’s     credibility      findings         if    those    findings    are
    supported by substantial evidence. Tewabe v. Gonzales, 
    446 F.3d 533
    , 538 (4th Cir. 2006) (quoting Camara v. Ashcroft, 
    378 F.3d 361
    ,    367    (4th    Cir.     2004)).       If     the       IJ    makes    an   adverse
    credibility        finding,     the     IJ        must    give       “specific,     cogent
    reason[s] for his [or her] disbelief.” 
    Id. (second alteration
    in
    original) (quoting 
    Camara, 378 F.3d at 367
    ). The IJ should cite,
    for     example,      any     “inconsistent              statements,         contradictory
    evidence, and inherently improbable testimony.” 
    Id. (quoting In
    re S-M-J-, 21 I. & N. Dec. 722, 729 (BIA 1997) (en banc)).
    Conversely, an IJ’s credibility determinations are not supported
    by    substantial     evidence    if       they     are       “based   on     speculation,
    conjecture, or an otherwise unsupported personal opinion.” 
    Id. 22 (quoting
    Dia v. Ashcroft, 
    353 F.3d 228
    , 250 (3d Cir. 2003) (en
    banc)).
    The IJ considered the appropriate factors in determining
    Hanna’s       credibility.    Hanna’s       assertions        that    Williford      might
    have been coerced and motivated by revenge are not supported by
    his     own    testimony     or     any     other       evidence      in    the    record.
    Accordingly, we discern no prejudice arising from Williford’s
    absence.
    3.
    Finally,      Hanna    argues       that    the    IJ   erred    in    denying   his
    motion in limine, pursuant to which he sought to offer evidence
    intended       to   attack    the    government’s         motive      in    seeking    his
    removal. Specifically, Hanna argues that he would have shown
    that the DHS targeted him for removal under the mistaken belief
    that he was a terrorist. We discern no error.
    The      exclusion     of   Hanna’s        proposed     evidence       is   governed
    under the same standard as the failure to compel Williford to
    testify: Hanna must show that the challenged defect (1) made the
    proceeding fundamentally unfair and (2) prejudiced the outcome
    of the case. 
    Anim, 535 F.3d at 256
    . Inherent under the first
    prong    is    whether     “the     evidence      is    probative.”         
    Id. (quoting Ezeagwuna
    v. Ashcroft, 
    325 F.3d 396
    , 405 (3d Cir. 2003)).
    Hanna’s argument here fails mainly because he does not show
    how evidence of the government’s motive would be relevant to
    23
    determining      whether    he    was        removable        on    the    ground        that    he
    employed a fraudulent marriage in order to obtain an immigration
    benefit.    The    DHS     needed       to    show,       by       clear    and      convincing
    evidence,       that    Hanna     was    removable             as    charged.        8    C.F.R.
    § 1240.8(a). Once that burden was met, Hanna had “the burden of
    establishing that he . . . [was] eligible for any requested
    benefit    or    privilege      and     that       it   should       be    granted       in     the
    exercise    of     discretion.”         
    Id. § 1240.8(d).
              The     government’s
    motive has no bearing on Hanna’s removability, nor does Hanna
    assert any benefit or privilege that he would be entitled to
    based on any malicious intent by the DHS to selectively pursue
    removal against him. See Reno v. Am.-Arab Anti-Discrimination
    Comm., 
    525 U.S. 471
    , 488 (1999) (“As a general matter . . . an
    alien unlawfully in this country has no constitutional right to
    assert     selective       enforcement             as     a     defense          against        his
    deportation.”). Indeed, the Supreme Court has cautioned against
    questioning       the    motive         of     the        government            in    enforcing
    immigration laws. See 
    id. at 491
    (“The Executive should not have
    to   disclose     its    ‘real’       reasons       for       deeming      nationals       of     a
    particular country a special threat . . . and even if it did
    disclose them a court would be ill equipped to determine their
    authenticity and utterly unable to assess their adequacy.”).
    24
    In short, there was neither legal error nor an abuse of
    discretion   in   the   IJ’s   exclusion   of   motive   evidence   in   this
    case.
    III.
    For the reasons set forth, the petition for review is
    DENIED.
    25