Bosede, Stephen v. Ashcroft, John D. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3188
STEPHEN BOSEDE,
Petitioner,
v.
JOHN ASHCROFT,
ATTORNEY GENERAL,
Respondent.
____________
On Petition for Review of an Order
of the Board of Immigration Appeals
____________
ARGUED APRIL 15, 2002—DECIDED OCTOBER 29, 2002
____________
Before ROVNER, DIANE P. WOOD, and EVANS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Stephen Bosede, a
Nigerian citizen, is a permanent resident of the United
States. Afflicted with drug addiction and now HIV-posi-
tive, Bosede unfortunately accumulated three felony con-
victions. After the third one, the INS initiated removal
proceedings against him. An Immigration Judge (IJ) held
a hearing and found that he was removable and ineligi-
ble for asylum, withholding of removal, or protection un-
der the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT),
23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985).
2 No. 01-3188
Bosede appealed this decision to the Board of Immigra-
tion Appeals (BIA), arguing that he was not removable
and alternatively that he was eligible for relief from
removal through either withholding of removal or by the
application of CAT. The BIA affirmed the IJ’s decision and
subsequently denied Bosede’s motion to reopen the deci-
sion. On appeal to this court, Bosede again argues that
he is eligible for withholding of removal. He also claims
that the hearing he was given failed to satisfy the due
process standards of the Fifth Amendment.
We find many aspects of the course of proceedings so far
quite disturbing. They purport to decide Bosede’s fate
based on a fundamental mistake of fact, brought about
through sloppy legal representation and a general failure
to follow up on information that would have brought the
mistake to light. Notwithstanding these serious flaws,
there is little this court can do under the system of review
Congress has established for these cases. For the reasons
we explain in this opinion, Bosede’s petition must be dis-
missed for want of jurisdiction, because he has not ex-
hausted his administrative remedies.
I
Bosede has lived in the United States since 1980; since
1982, he has been a lawful permanent resident. Now 49
years old, Bosede is currently employed as a cabdriver.
He lives with his wife and two children, who are all United
States citizens. In 1997, Bosede and his wife were both
diagnosed as HIV-positive (i.e., infected with the virus that
causes AIDS), which requires a strict regimen of prescrip-
tion drugs. Because of her illness, his wife is wheelchair-
bound and unable to work.
The INS charged that Bosede was removable based upon
three felony convictions. On December 13, 1993, Bosede
was convicted of a controlled substance offense; the INS
No. 01-3188 3
thought it was for possession with intent to deliver, al-
though as we shall see, it may have been only for simple
possession. On April 13, 1995, he was convicted of pos-
session of a controlled substance. Finally, on March 1,
2000, he was convicted of retail theft. Bosede retained
attorney Michael Cohen to represent him at the immigra-
tion proceedings. By all accounts, Cohen’s representation
was at best unhelpful. He failed to appear at multiple
hearings without any legitimate excuse. The IJ even chas-
tised Cohen for not appreciating the seriousness of the
proceedings and “oversimplifying the issues.”
Despite his poor representation, Bosede tried to chal-
lenge the 1993 and 2000 convictions before the IJ. He
argued that the 2000 conviction was not an aggravated
felony because he did not serve a year in prison and be-
cause the facts underlying the offense (he had been caught
drinking a bottle of liquor in a store and allegedly did
not intend to pay for it) showed that it was minor. Bosede
also testified that the 1993 conviction, which the INS
asserted was for possession with intent to deliver, was
really only a conviction for possession. The INS based
its information on a “cover sheet” that reported the charge
as possession with intent to deliver. But the document
contained no record of either the indictment or the ulti-
mate finding of guilt. Recognizing a potential conflict be-
tween Bosede’s testimony and the INS evidence, the IJ
stated:
I would think it might be incumbent upon the Service,
now that the respondent has denied that this cover
sheet is correct under oath, that they request inves-
tigations, go back to 26 in California and obtain the
indictment and check the docket sheet to see if there
was an amendment. I’m not requiring you do that.
But you’re confronted with testimonial evidence from
the respondent saying he pled it down. And then I’ll
make a decision.
4 No. 01-3188
The IJ then added, “I’m not positive that [the cover sheet
is] clear, convincing and unequivocal in light of the respon-
dent’s denial under oath.” Despite this warning, neither
the INS nor Bosede introduced any additional evidence
regarding the 1993 offense. The IJ subsequently found
that Bosede was removable as an aggravated felon and
went on to consider his requested relief from removal.
Bosede offered three reasons why he should not be
removed from the United States: first, he was eligible for
asylum, second, he was eligible for withholding of remov-
al, and finally, he was entitled to relief under the CAT.
In support of the first and third theories, Bosede claimed
that he would be persecuted as a Christian if he was
sent back to Nigeria. He pointed out that his parents
were killed by Muslim militants in 1969. Despite his many
attempts over the years, Bosede was never able to re-
cover the property stolen from his parents. Bosede also
claimed that he would be detained and imprisoned upon
returning to Nigeria, which, given his medical condition,
would amount to a de facto death sentence (because of
both lack of access to the necessary medications and pre-
dictable violence from prisoners directed against HIV-
positive individuals). He testified that he fears discrim-
ination and possible torture if he returns to Nigeria as
an HIV-positive man. Although Bosede has returned to
Nigeria several times since he has been a resident of the
United States, this fear was based in large part on his 1999
trip to Nigeria.
In 1999, Bosede traveled to Nigeria to visit his grand-
parents’ graves with his wife. On that trip, he and his
wife brought with them a large amount of medication
(which, they stated, was not available in Africa). Suspi-
cious airport officials detained them for two hours, until
Bosede alerted the officials to their HIV condition. They
were released after they agreed to stay in a particular
hotel. Although they initially went to the recommended
No. 01-3188 5
hotel, they later left it, fearing that they would be killed
because of their HIV status. After approximately a month’s
stay, they left Nigeria quietly through a neighboring coun-
try. Bosede testified that he believed that if he was sent
back, he would be detained or imprisoned and certainly
would be unable to find work because of his HIV status.
He presented background information on Nigerian pris-
ons and the HIV epidemic. Finally, he submitted an
e-mail that indicated that the Nigerian government had
a policy of detaining persons with AIDS to curb the
spread of the disease. To counter this testimony, the INS
introduced evidence that the Nigerian government has
taken positive steps to address the HIV problem in Nigeria,
where the disease currently affects five percent of the
population.
The IJ was not impressed by Bosede’s evidence and
again chastised the attorney. “Mr. Cohen, you can’t win
cases without evidence. And all the cases I’ve read con-
cerning aliens granted asylum based upon HIV-positive or
AIDS, there were tremendous amounts of background
evidence and reports submitted by the attorneys for the
aliens, all kinds of documentary evidence.” Cohen re-
sponded that such documentary evidence was merely
“double and triple hearsay” and later stated that the
government’s documents were “quadruple hearsay.”
In the end, the IJ concluded that Bosede was not en-
titled to relief from removal. He found that Bosede was
statutorily barred from asylum because his 1993 convic-
tion (understood to be the trafficking offense, not the
possession offense) was an aggravated felony. The judge
also found Bosede ineligible for withholding of removal
under 8 U.S.C. § 1231, again relying on the contested 1993
conviction, which he concluded was per se a particularly
serious crime. Finally, he ruled that the evidence did not
establish that Bosede would be persecuted or tortured
6 No. 01-3188
upon his return to Nigeria, which meant that he was
ineligible for CAT relief.
Bosede filed a pro se appeal to the BIA. The BIA held
that the 1993 conviction was not a per se bar to with-
holding of removal, but (accepting the INS’s evidence
that it was a distribution offense) it agreed that the con-
viction was for a particularly serious crime, considering
the seriousness and danger of drug trafficking crimes.
It affirmed the IJ’s decision that Bosede was not entitled
to CAT relief because it agreed that Bosede had failed
to meet his burden of showing a likelihood of torture in
Nigeria. The BIA accordingly dismissed the appeal. It
later denied a motion that Bosede filed to reopen his
removal proceedings. Bosede now appeals the BIA order
dismissing the appeal to this court.
II
Bosede’s claim is governed by the rules of the Illegal
Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009
(Sept. 30, 1996). Before proceeding to the merits we ad-
dress the INS’s contention that we do not have jurisdic-
tion to hear Bosede’s appeal because Bosede is removable
as a criminal alien. 8 U.S.C. § 1252(a)(2)(C) (“[N]o court
shall have jurisdiction to review any final order of removal
against an alien who is removable by reason of having
committed a criminal offense. . . .”). Although the INS has
accurately quoted the statute, matters are more com-
plex than it is willing to admit. At a minimum, this court
retains jurisdiction to determine its own jurisdiction.
Flores-Leon v. I.N.S., 272 F.3d 433, 437 (7th Cir. 2001).
We have held before on a number of occasions that the
review-preclusion provisions in the 1996 amendments to
the immigration laws do not prevent us from determin-
ing whether the alien is being removed for a permis-
No. 01-3188 7
sible reason. Sandoval v. I.N.S., 240 F.3d 577, 580 (7th
Cir. 2001); Yang v. I.N.S., 109 F.3d 1185, 1192 (7th Cir.
1997). Under the Supreme Court’s decisions in Calcano-
Martinez v. I.N.S., 533 U.S. 348 (2001), and I.N.S. v.
St. Cyr, 533 U.S. 289 (2001), it is also clear that Bosede
may not raise other constitutional or statutory chal-
lenges in a direct review petition, but that habeas corpus
under 28 U.S.C. § 2241 remains available for some such
claims. See Calcano-Martinez, 533 U.S. at 351. We are
therefore precluded from considering in the present ap-
peal Bosede’s claim that his Fifth Amendment due proc-
ess rights were violated in the proceedings before the
IJ, and we express no opinion on that argument.
Bosede now concedes that his 2000 theft conviction qual-
ifies as an aggravated felony, see 8 U.S.C. § 1101(a)(43)(G),
that he is removable, see 8 U.S.C. § 1227(a)(2)(A)(iii),
and that he is ineligible for asylum relief, see 8 U.S.C.
§ 1158(b)(2)(A)(ii). We are therefore concerned only with
the BIA’s finding that he was ineligible for withholding
of removal and deferral under CAT because of the 1993
felony conviction.
Withholding of removal is governed by statute, 8 U.S.C.
§ 1231(b)(3)(A), and so we begin with the relevant lan-
guage of that provision:
[T]he Attorney General may not remove an alien to
a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that
country because of the alien’s race, religion, nationality,
membership in a particular social group, or political
opinion.
This relief is not discretionary. If an alien meets the
statutory criteria, the Attorney General must withhold re-
moval. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999).
The scope of the statutory entitlement to withholding
is limited, however, by § 1231(b)(3)(B)(ii), which states
8 No. 01-3188
that subparagraph (A) does not apply to an alien who has
been “convicted by a final judgment of a particularly seri-
ous crime.” It goes on to state that “an alien who has
been convicted of an aggravated felony (or felonies) for
which the alien has been sentenced to an aggregate term
of imprisonment of at least 5 years shall be considered
to have committed a particularly serious crime.”
The IJ found that Bosede was an aggravated felon who
had committed a particularly serious crime. His opin-
ion makes it clear that the characterization of the 1993
conviction as an aggravated felony was critical to that
decision. The fact of the two drug convictions barred
Bosede from consideration for asylum, but, as we have
already noted, Bosede is not pursuing that claim on ap-
peal. It is the IJ’s finding that one of his convictions was
for a “particularly serious crime” that precluded him
from eligibility for withholding of removal, and it is that
finding that Bosede is trying to challenge. The IJ’s opin-
ion is crystal clear that the only offense of the three that
he thought was “particularly serious” was the 1993 con-
viction: “I determine, however, that the respondent’s con-
viction in 1993 for the possession with intent to deliver
is a particular serious crime.” The IJ also referred to the
fact that Bosede received a two-year sentence for the 1993
conviction.
At the time, all the IJ had to go on was Bosede’s testi-
mony that the conviction was not for trafficking but in-
stead was for simple possession, and the cover sheet
that the INS had produced that showed conviction on
charges of possession with intent to distribute. Appar-
ently, the IJ concluded that the cover sheet standing
alone, even in the face of Bosede’s testimony, was “clear
and convincing evidence” of the nature of the prior con-
viction. Evidence it may have been, but it now appears
that it was also wrong. Before this court, Bosede has
produced the entire Cook County Certified Statement
No. 01-3188 9
of Conviction and Order of Sentence and Commitment to
the Illinois Department of Corrections. This four-page
official document indicates that Bosede was telling the
truth when he said that he had been convicted only of
simple possession, not possession with intent to distrib-
ute. Other details of the full record supply further cor-
roboration of Bosede’s account. The charge and order of
conviction show that Bosede was convicted of possession or
“P.C.S.,” Ill. Rev. Stat. ch. 56.5 § 1402 ¶ C. Moreover, we
would have to assume that the state judge imposed an
unlawful sentence if we thought that the 1993 convic-
tion was for possession with intent to distribute: the
statutory minimum sentence for the latter offense is
three years, see 730 ILL. COMP. STAT. 5/5-8-1(a)(5), and
Bosede received only a two-year sentence for his convic-
tion (a lawful sentence for the simple possession offense).
Bosede contends that the IJ’s reliance on the incom-
plete “cover sheet” violated his statutory right to have
the Attorney General decide whether he was entitled to
withholding of removal under § 1231(b)(3)(A). He may
be right. This record gives us no confidence that the
agency’s decision on the withholding aspect of his petition
was correct or based upon a proper basis. Nevertheless,
for the reasons explained above, we express no final opin-
ion on this point. This is the kind of argument Bosede
must submit first to the agency, either through a motion
to reopen or through some kind of petition to the dis-
trict director. See Toptchev v. I.N.S., 295 F.3d 714, 721
(7th Cir. 2002). While the BIA has already denied one mo-
tion to reopen, as far as we know Bosede has never given
it the opportunity to take into consideration the full
Cook County Statement of Conviction that he presented
to this court. We hope that the agency would be open to
revisiting a critical issue like this one that may rest on a
fundamental mistake of fact. But no matter what, the
law entitles the INS to an initial opportunity to consider
10 No. 01-3188
the evidence and correct its error. Bosede would have to
consider other remedies, such as habeas corpus, only if
this avenue fails, although we also express no opinion
on whether he would be entitled to relief in a habeas
corpus proceeding.
Although we agree with the INS that Bosede’s claim
before this court must be rejected because he has not ex-
hausted his administrative remedies, we reject its fur-
ther argument that the errors below were harmless. See
Shahandeh-Pey v. I.N.S., 831 F.2d 1384, 1389 (7th Cir.
1987); see also Kuciemba v. I.N.S., 92 F.3d 496, 501-02
(7th Cir. 1996). Bosede may well have been prejudiced by
the IJ and BIA determinations that he committed a
“particularly serious crime” in 1993. If they re-evaluate
his case on the corrected assumption that the 1993 crime
was merely for possession, it seems likely that he would
be eligible for a decision on withholding of removal (though
we cannot say what decision the Attorney General would
make on the merits).
The INS has also offered the alternative argument that
Bosede’s multiple convictions for possession add up in
the aggregate to one particularly serious crime. If what
this means is that multiple convictions for possession for
which the cumulative sentences add up to less than five
years are per se classified as “particularly serious crimes,”
this is incorrect. See, e.g., In re L-S-, 22 I. & N. Dec. 645
(B.I.A. 1999) (A per se rule for particularly serious
crimes would conflict with Congressional intent to elim-
inate any presumption that all aggravated felonies are
also particularly serious crimes for withholding of re-
moval purposes); see also Yousefi v. I.N.S., 260 F.3d 318,
328 (4th Cir. 2001) (applying a series of factors to con-
sider when identifying whether a conviction is a particu-
larly serious crime). We have no idea whether the BIA
could, or would, decide that two particular possession
convictions were equivalent to one particularly serious
No. 01-3188 11
crime, but it is entitled to make that kind of individu-
alized determination in the first instance.
For his part, Bosede asks that we simply take judicial
notice of the Statement of Conviction and resolve every-
thing here. Although we have taken judicial notice of
court documents from state proceedings before, see Opoka
v. I.N.S., 94 F.3d 392, 394 (7th Cir. 1996), we do not find
it appropriate in this case. First, a court simply cannot
reverse an agency on the basis of evidence that is not in
the administrative record. Second, we will take notice
only of facts “not subject to reasonable dispute.” FED. R.
EVID. 201. Bosede has shown that there is a conflict be-
tween the certified cover sheet the INS used and the
certified Statement of Conviction, but we are ill-equipped
to reconcile the two documents. We will not consider
this issue in the first instance. Singh v. Reno, 182 F.3d
504, 511 (7th Cir. 1999).
III
Although there appear to be serious flaws in the INS’s
consideration of Bosede’s petition for withholding of re-
moval, he must present the facts that underlie his claim
to the agency before this court can do anything. Because
he has not exhausted his administrative remedies, we
DISMISS the petition for lack of jurisdiction.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-29-02