IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-60126 Summary Calendar _____________________

SAFET PJETROVIC,

Petitioner,

versus

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent. _________________________________________________________________

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A41-413-423 _________________________________________________________________ January 27, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Safet Pjetrovic petitions for review of an order of the Board

of Immigration Appeals (“BIA”) dismissing his appeal from an order

of the immigration judge (“IJ”) finding him deportable. Pjetrovic

also seeks review of the BIA’s denial of his motion to reopen the

proceedings to remand to the IJ for consideration of his

application for asylum.

Pjetrovic argues that the immigration proceedings were

fundamentally unfair because he was denied an opportunity to

cross-examine his former spouse, Tiffany Anderson, yet the BIA

relied on Anderson’s affidavit to determine that their marriage was

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. not entered into in good faith. We agree with Pjetrovic’s

arguments.

Under the Fifth Amendment, aliens are entitled to due process

of law in deportation proceedings. Reno v. Flores,

(1993). A hearing will be deemed unfair only if the challenged

practice “might have led to a denial of justice . . . or there must

have been absent an element deemed essential to due process.”

Hernandez-Garza v. INS,

(5th Cir. 1989). An

alien is entitled to a reasonable opportunity to cross-examine

government witnesses.

. The INS may not rely on

affidavit testimony unless it first establishes “that despite

reasonable efforts it was unable to secure the presence of the

witness at the hearing.” Olabanji v. INS,

(5th

Cir. 1992); Hernandez-Garza,

. We note that in this

case the record shows that the INS made no effort to produce Ms.

Anderson and that it took the position that it was Mr. Pjetrovic’s

responsibility to locate her.

The INS sought to terminate Pjetrovic’s conditional permanent

residence status based on its determination that his marriage to

Ms. Anderson had been for the purpose of procuring his admission as

an immigrant. See 8 U.S.C. § 1186a(c)(3)(C). Under these

circumstances, Pjetrovic was entitled to a hearing at which the

burden of proof was on the Attorney General to prove that his

marriage had not been in good faith. § 1186a(b)(2); see also 8

U.S.C. § 1229a(c)(3)(A). A finding that the marriage had not been

2 in good faith would render Pjetrovic deportable under

(a)(1)(D). See § 1227(a)(1)(D). In a removal proceeding

under § 1227(a), an alien “shall have a reasonable opportunity to

examine the evidence against the alien . . . and to cross-examine

witnesses presented by the Government . . . .” § 1229a(b)(4)(B).

In the case of an alien who has been admitted to the United States,

as Pjetrovic was, the INS “has the burden of establishing by clear

and convincing evidence that . . . the alien is deportable. No

decision on deportability shall be valid unless it is based upon

reasonable, substantial, and probative evidence.”

§ 1229a(c)(3)(A).

Because Pjetrovic’s immigration hearings lacked essential

elements of due process, the petition for review is GRANTED, the

order of the BIA is VACATED, and the case is remanded for further

proceedings consistent with this opinion. See Reno,

; Hernandez-Garza v. INS,

(5th Cir. 1989). In

the light of the disposition of the appeal, the BIA’s denial of

Pjetrovic’s motion to reopen the proceedings for consideration of

his asylum application is MOOT. On remand to the immigration

judge, Pjetrovic may submit a new application for asylum based on

current conditions in former Yugoslavia.

VACATED and REMANDED.

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