Olowu v. Dept Homeland ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-22-2005
Olowu v. Dept Homeland
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1298
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UNREPORTED- NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-1298
________________
KING ADE OLOWU,
Appellant
v.
*MICHAEL CHERTOFF, SECRETARY,
HOMELAND SECURITY;
JAMES ZIGLAR, COMMISSIONER, INS;
DISTRICT DIRECTOR, U.S. IMMIGRATION &
NATURALIZATION SERVICE
*(Pursuant to F.R.A.P. 43(c))
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil No. 03-CV-00661)
District Judge: Honorable William W. Caldwell
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
March 4, 2005
Before: NYGAARD, VAN ANTWERPEN and STAPLETON, Circuit Judges
(Filed: April 22, 2005)
_______________________
OPINION
_______________________
PER CURIAM
King Ade Olowu appeals the denial of habeas petition by the District Court for the
Middle District of Pennsylvania. We will affirm.
I.
Olowu, a citizen of Nigeria, became a lawful permanent resident of the United
States in 1989. In 2001, Olowu was indicted on 46 counts of bank fraud under 18 U.S.C.
§ 1344 and pursuant to a plea agreement pled guilty to one count involving a check in the
amount of $586.49. Olowu was sentenced to 15 months imprisonment and ordered to pay
restitution in the amount of $70,143.29. The Immigration and Naturalization Service
(“INS”) 1 subsequently charged Olowu with being removable for having been convicted of
an aggravated felony, 8 U.S.C. § 1227(a)(2)(A)(iii); specifically an offense involving
fraud or deceit in which the loss to the victims exceeded $10,000 under §
1101(a)(43)(M)(i). The Immigration Judge (“IJ”) found Olowu removable, denied his
request for asylum as untimely, and denied withholding of removal and relief under the
Convention Against Torture (“CAT”). The Board of Immigration Appeals (“BIA”)
affirmed without opinion.
Olowu then filed a habeas petition in the Middle District of Pennsylvania pursuant
to 28 U.S.C. § 2241, raising several claims including: (1) that his conviction was not an
1
Although the Department of Homeland Security took over the functions of the
former INS in 2003, for the sake of convenience and because the INS was the actor at
most times relevant herein, we will continue to refer to the agency as the INS.
2
aggravated felony; (2) improper denial of withholding of removal; (3) denial of his
statutory right to counsel; (4) an unconstitutional conviction; and (5) eligibility for
discretionary relief from removal.2 The District Court denied relief.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have
appellate jurisdiction pursuant to § 1291. We review de novo the District Court's denial
of habeas corpus relief and its interpretation of the applicable federal law. Steele v.
Blackman, 236 F.3d 130, 133 (3d Cir. 2001). The scope of habeas review is quite
narrow. Our review is “limited to constitutional issues and errors of law, including both
statutory interpretations and application of law to undisputed facts or adjudicated facts.”
Auguste v. Ridge, __ F.3d __, 2005 WL 107036, at *9 (3d Cir. Jan. 20, 2005); see also
Ogbudimkpa v. Ashcroft, 342 F.3d 207, 222 (3d Cir. 2003). We do not review
administrative fact finding or the exercise of discretion. Auguste, 2005 WL 107036, at
*9.
III.
Olowu argues that his conviction is not an aggravated felony under 8 U.S.C. §
1101(a)(43)(M)(i)3 because the relevant “loss” under the statute is limited to $586.49, the
2
The remaining claims are not raised on appeal.
3
Section 1101(a)(43)(M)(i) defines as an aggravated felony an offense that “involves
fraud or deceit in which the loss to the victim or victims exceeds $10,000”. There is no
dispute that Olowu’s bank fraud conviction under 18 U.S.C. § 1344 involved “fraud or
deceit”. See Valansi v. Ashcroft, 278 F.3d 203, 210 (3d Cir. 2002).
3
only amount specified in the count to which he pled guilty. Appellant Brief at 14-17.
When the count of conviction incorporates allegations of a scheme to defraud, however,
the amount of loss is based on the entire scheme, not just the amount specifically
identified in the count of conviction. Khalayleh v. Immigration & Naturalization Serv.,
287 F.3d 978, 980 (10 th Cir. 2002). Olowu’s indictment alleged a “scheme and artifice”
to defraud a number of financial institutions in connection with numerous checks,
including but not limited to the checks identified in counts 1 through 46 totaling more
than $70,000. Appellant’s Brief, Appendix at 41-51. Thus, although Olowu only plead
guilty to a single count, the amount of loss is based on the entire scheme which was
clearly in excess of $10,000. Accordingly, the IJ properly concluded that Olowu was
convicted of an aggravated felony.
Olowu’s attempt to distinguish Khalayleh based on the Khalayleh defendant’s
express agreement to pay restitution in the amount of the actual loss, see Appellant’s
Reply Brief at 5 (quoting Khalayleh, 287 F.3d at 979), is without merit. In Khalayleh, the
Tenth Circuit strictly relied on the indictment, see Khalayleh, 287 F.3d at 980, as we do
here. Therefore, we need not address Olowu’s arguments against relying on the amount
of restitution. See Appellant’s Reply Brief at 1-11.
Also, Olowu’s reliance on Woldiger v. Ashcroft, 77 Fed. Appx. 586 (3d Cir. 2003)
is misplaced. Appellant’s Addendum to Reply Brief. In Woldiger, the petitioner only
plead guilty to obstructing a federal audit, and, unlike Olowu and the petitioner in
4
Khalayleh, did not plead guilty to an underlying scheme to defraud. Woldiger, 77 Fed.
Appx. at 591-92 (distinguishing Khalayleh).
IV.
Olowu also claims that he is entitled to statutory withholding of removal under 8
U.S.C. § 1231(b)(3) and relief under the CAT. Olowu argues that the IJ committed legal
error in denying his claim based on a lack of corroborating evidence. Appellant’s Brief at
22; Appellant’s Reply Brief at 13. Although an applicant’s credible testimony may be
sufficient to sustain his burden of proof without corroboration, 8 C.F.R. § 208.16(b),
(c)(2), the IJ may nonetheless require corroboration when the applicant is “reasonably
expected” to do so, Dia v. Ashcroft, 353 F.3d 228, 253 (3d Cir. 2003). The IJ should
make this explicit determination after informing the applicant of the need for
corroboration so as to provide him an opportunity to explain the lack thereof. Mulanga v.
Ashcroft, 349 F.3d 123, 136 (3d Cir. 2003).
The IJ faulted Olowu for not providing corroborating evidence from family
members living in the United States regarding Olowu’s claims of past persecution by
Muslim relatives, the prominence of his Muslim family members, and the conversion of
his father to Christianity. Oral Decision of IJ at 11. We need not ascertain if the IJ erred
in requiring this corroborating evidence because Olowu can not demonstrate prejudice.
See McLeod v. Immigration & Naturalization Serv., 802 F.2d 89, 94 (3d Cir. 1986) (IJ’s
decision not invalidated “unless his action substantially prejudiced the result”). The
5
absence of this specific corroborating evidence is immaterial in light of the IJ’s finding
that Olowu’s testimony did not even satisfy his burden of proof. See Oral Decision of IJ
at 11-12 (finding that Olowu’s testimony did not establish any connection between his
family, the government, and their willingness or ability to harm him).
V.
Next, Olowu claims that the IJ’s denial of a continuance deprived him of his right
to counsel. Appellant Brief at 17-18. As recognized by the District Court this claim is
unexhausted. See id., Appendix at 14.4 As to Olowu’s remaining claims, we have
considered all of Olowu’s arguments and find them to be without merit and in need of no
further discussion essentially for the reasons given by the District Court. See id.,
Appendix at 19-22, 30-31.
4
Even if this claim was exhausted, Olowu would not be entitled to relief. The
inability to obtain counsel does not itself deprive a petitioner of his statutory or Due
Process right to counsel. See Ponce-Leiva v. Ashcroft, 331 F.3d 369, 374-76 (3d Cir.
2003). Furthermore, whether the IJ abuses her discretion in denying a continuance to
obtain counsel is a fact intensive inquiry, id. at 377, and as discussed supra such claims
are not cognizable on habeas review.