Enwonwu v. Gonzales ( 2007 )

Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 06-2457
FRANK IGWEBUIKE ENWONWU,
Petitioner,
v.
ALBERTO R. GONZÁLES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Howard, Circuit Judge.
Morton Sklar and Monique Beadle on brief for petitioner.
Andrew C. MacLachlan, Ernesto H. Molina, Jr., and Peter D.
Keislser on brief for respondent.
May 10, 2007
Per Curiam. This is Frank Igwebuike Enwonwu's second
petition for review of a determination by the Board of Immigration
Appeals ("BIA") that he is ineligible for relief under the
Convention Against Torture ("CAT").1 In Enwonwu v. Gonzales, 438
F.3d 22 (1st Cir. 2006) ("Enwonwu I"),2 we dismissed Enwonwu's
constitutional claims but remanded his claim for CAT relief to the
BIA for "further consideration . . . in light of its failure to
address the second ground in the IJ's decision," id. at 35, i.e.,
that Enwonwu would likely be tortured in retaliation for his
cooperation with the Drug Enforcement Administration ("DEA") in
their investigation of other Nigerian drug traffickers. On remand,
the BIA issued a new decision addressing the issue and finding
Enwonwu ineligible for CAT relief on that ground. Enwonwu has now
filed a petition for review of the BIA's decision on remand,
raising various procedural and substantive challenges to the BIA's
decision. The respondent counters those challenges and, in
addition, makes several threshold arguments. One such argument
turns on the scope of this court's jurisdiction to review
1
The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented in the United States by the Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112
Stat. 2681-761 (codified at 8 U.S.C. § 1231 (note) (2000)).
2
The procedural history of this case prior to our decision in
Enwonwu I is set forth in that decision, Enwonwu I, 438 F.3d at 24,
25-28, as are the basic facts of this case as found by the
Immigration Judge ("IJ"), id. at 25-26, and need not be repeated
here.
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"questions of law" in the wake of the Real ID Act. See 8 U.S.C.
1252(a)(2)(C) & (D). Because this statutory jurisdictional
argument presents difficult and unsettled issues, we will by-pass
it, see United States v. Ayala-Lopez, 457 F.3d 107, 108 (1st Cir.
2006), and, for the reasons discussed below, deny the petition on
other grounds.
I.
Before addressing Enwonwu's challenges to the BIA's
decision, we dispose of several of those challenges on other
threshold grounds identified by the respondent.
A.
First, we agree with the respondent that Enwonwu failed
to exhaust his administrative remedies before the BIA with respect
to two of the issues that Enwonwu raises here; consequently, we
will not consider those issues. See Boakai v. Gonzales, 447 F.3d
1, 4-5 (1st Cir. 2005). Those issues are (1) whether the case
should be remanded to the BIA for reconsideration of its rejection
of the IJ's first rationale for finding it likely that Enwonwu
would be tortured if returned to Nigeria, i.e., that he would be
detained in a Nigerian prison because he had been convicted of a
drug offense in the United States,3 and (2) whether Enwonwu was
3
If Enwonwu had attempted to raise this issue before the BIA,
the Department of Homeland Security ("DHS") might well have argued
that the argument was outside the scope of this court's limited
remand--i.e., "for . . . further consideration of the CAT issue in
light of its failure to address the second ground in the IJ's
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obliged to "provide evidence that he . . . would be singled out
individually" for torture.4
B.
We also agree that another of Enwonwu's arguments is
barred by this court's decision in Enwonwu I. The argument is that
his removal would impermissibly deprive him, retroactively, of his
"vested rights" under his confidential informant agreement.
Although the respondent frames this bar as one of "claim
preclusion," it fits more comfortably into the doctrine of law of
the case.
Under the relevant branch of that doctrine, "a legal
decision made at one stage of a civil or criminal proceeding . . .
remain[s] the law of that case throughout the litigation, unless
and until the decision is modified or overruled by a higher court.
That branch binds . . . a successor appellate panel in a second
appeal in the same case . . . ." United States v. Moran, 393 F.3d
1, 7 (1st Cir. 2004); see also Ellis v. United States, 313 F.3d
636, 646-47 (1st Cir. 2002) (explaining the "salutary policies"
decision," Enwonwu I, 438 F.3d at 35 (emphasis added). See United
States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993).
4
After reviewing the administrative record, we conclude that
a third issue identified by the respondent--that the BIA should
have considered the district court's findings in that court's
advisory opinion in Enwonwu's habeas corpus case, Enwonwu v.
Chertoff, 376 F. Supp. 2d 42 (D. Mass. 2005)--was sufficiently
raised before the BIA to satisfy the exhaustion requirement.
However, for the reasons discussed later, we conclude that the BIA
properly declined to consider those findings.
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behind this doctrine). And it applies not only to issues actually
raised and resolved in the first appeal but also to issues that
could have been raised in the first appeal but were not. United
States v. Ticchiarelli, 171 F.3d 24, 29 (1st Cir. 1999).
It makes no difference whether the "vested rights"
argument that Enwonwu makes in his present petition is identical to
or a variation on the substantive due process argument that was
raised and rejected in Enwonwu I, 438 F.3d at 29-31. Either the
argument was previously raised and rejected in his first petition,
or it could have been raised there but was not. Either way, the
law of the case doctrine precludes Enwonwu from making this
argument in this second petition.
II.
We will discuss Enwonwu's remaining challenges to the
BIA's decision on remand.
A.
In Enwonwu I, this court remanded Enwonwu's petition for
review of the denial of his CAT claim to the BIA to address the
IJ's alternative finding that retribution would be sought against
Enwonwu because of his cooperation with the DEA. Enwonwu I, 438
F.3d at 35. On remand, the BIA provided the missing explanation.
But in its resulting order, it mistakenly said that "[t]he
respondent's [i.e., Enwonwu's] appeal is dismissed." In fact, it
was the DHS (or its predecessor, the Immigration and Naturalization
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Service) that had appealed to the BIA from the IJ's decision in
Enwonwu's favor, so the order should have said that the DHS's
appeal is sustained, as did the BIA's original order.
In his brief to this court, Enwonwu points to that error
as "[t]he most glaring indicator of the continued arbitrary nature
of the BIA's adjudication of this case on remand." The error was
not substantive, since the body of the original decision clearly
indicated that the BIA intended to rule in DHS's favor. The BIA's
inadvertent use of the opposite language hardly rises to the level
of a constitutional due process violation, particularly given the
absence of any prejudice to Enwonwu and the BIA's prompt correction
of its error. See Ibe v. Gonzales, 415 F.3d 142, 144 (1st Cir.
2005).
B.
Somewhat paradoxically, Enwonwu next claims that the
BIA's correction of its order to say that the DHS appeal was
sustained also constituted "a serious violation of [his] due
process rights." As to how the correction was made, the record
indicates only the following: After Enwonwu pointed out the error
in one of his many attempts to obtain a stay of removal pending
appeal, the BIA amended its order, "upon [its] own motion," to
read, "The DHS appeal is sustained." The amended decision also
added--presumably in response to Enwonwu's further argument that
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there was no removal order in effect5--an explicit order that
"[t]he respondent is ordered removed from the United States to
Nigeria." In all other respects, the amended decision
"incorporat[ed] by reference the text of the attached vacated
order," i.e., the original decision.
According to Enwonwu, "The only reasonable conclusion
that can be drawn [from that sequence of events] is that the BIA
was alerted to the error in its prior decision on an ex parte basis
by the Government after the Petitioner filed his Petition for
Review in this Court." He claims that the inferred ex parte
contact violated his due process rights.
There are several problems with this due process claim,
the first of which is the absence of any concrete evidence in the
record to rebut the BIA's own statement that the correction was
made "upon the Board's own motion" or the presumption of regularity
that attaches to the BIA's official acts. McLeod v. INS, 802 F.2d
89, 95 n.8 (3d Cir. 1986); see generally Giordano v. Fair, 697 F.2d
14, 17 (1st Cir. 1983). There is no evidence that the alleged
contact even occurred. See United States v. Ames, 743 F.2d 46, 48
(1st Cir. 1984).
5
In fact, the BIA's earlier decision, dated May 30, 2003,
which was reviewed in Enwonwu I, already contained an order that
Enwonwu be removed from the United States. In addition, as
discussed below, the IJ had ordered removal in the first instance.
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Second, even if such contact occurred, it would not
necessarily be impermissible. Rather, under the Administrative
Procedure Act, the only ex parte communications that are prohibited
are those "relevant to the merits of the proceeding." 5 U.S.C.
§ 557(d)(1)(A) & (B). Any ex parte communication of this
essentially clerical error in the BIA's original decision was
irrelevant to the merits of the BIA's decision, which remained the
same before and after the error was corrected.
Third, Enwonwu has not made the requisite showing that he
was prejudiced by communication of the error, which he himself had
already pointed out in a pleading of public record. Absent such a
showing a prejudice, even an impermissible ex parte communication
does not violate due process. United States v. Nelson-Rodriguez,
319 F.3d 12, 62 (1st Cir. 2003); In re Pearson, 990 F.2d 653, 661
(1993).
C.
Next, Enwonwu argues that the BIA had no authority to
enter a removal order "in the first instance."6 The factual
premise of that argument is mistaken since Enwonwu's removal order
was entered initially by the IJ, not the BIA. Since Enwonwu's
6
Arguably, this argument is barred by the law of the case
doctrine, since the BIA's 2003 decision contained an identical
removal order, which Enwonwu could have but did not challenge in
Enwonwu I. Ticchiarelli, 171 F.3d at 29. However, the respondent
did not raise this non-jurisdictional argument in his brief, so we
do not address it. Venegas-Hernandez v. Sonolux Records, 370 F.3d
183, 188 (1st Cir. 2004).
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argument is based on this mistaken premise, we need not reach the
issue of whether the BIA would have authority to issue a removal
order where the IJ had not ordered removal, or at least made a
determination of removability, in the first instance.
D.
Next, Enwonwu faults the BIA for declining to rely upon
the district court's factual findings in Enwonwu v. Chertoff. As
Enwonwu implicitly acknowledges by arguing that the BIA should have
taken administrative notice of those findings, absent taking such
notice, the BIA was powerless to adopt them. See 8 C.F.R. §
1003.1(d)(3)(iv) ("Except for taking administrative notice of
commonly known facts such as current events or the contents of
official documents, the Board will not engage in factfinding in the
course of deciding appeals.").
His arguments that the applicable regulations or due
process required the BIA to take such notice are unavailing. First
of all, we doubt that the district court's advisory opinion is an
"official document" that the BIA is authorized to notice under 8
C.F.R. § 1003.1(d)(3)(iv) or that the facts found therein are the
kinds of facts that may be noticed, see Gebremichael v. INS, 10
F.3d 28, 37 & n.25 (1st Cir. 1993) (holding that BIA may take
administrative notice of "legislative" facts, i.e., "those which
'do not usually concern the immediate parties but are the general
facts which help the tribunal decide questions of law and policy
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and discretion'" as opposed to "'adjudicative facts[,] [which]
usually answer the questions of who did what, where, when, how,
why, with what motive or intent'"). The BIA also appropriately
declined to take notice, given the advisory nature of that opinion
and the limited scope of this court's remand order, which directed
the BIA only to further explain its reasons for overturning the
IJ's decision. Cf. Guzmán-Ruíz v. Hernández-Colón, 406 F.3d 31, 36
(1st Cir. 2005).
E.
Finally, Enwonwu paradoxically shifts from arguing that
the BIA should have considered the district court's findings to
arguing that the BIA was bound by the factual findings of the IJ
based on the record before him. Consonant with the directive that
the BIA "not engage in de novo review of findings of fact
determined by an immigration judge," 8 C.F.R. § 1103.1(d)(3)(i),
the BIA here expressly declined to engage in de novo review.
Instead, the BIA reviewed the IJ's factual findings against the
underlying evidence only to determine whether those findings were
clearly erroneous, as it was permitted to do. Id. Finding no
"clear error" in the IJ's factual findings, including his
credibility findings, the BIA "accept[ed] the facts as stated by
the [IJ]" but rejected the IJ's legal conclusion that, on those
facts, Enwonwu was eligible for CAT relief as a matter of law.
Engaging in such de novo review of the IJ's legal conclusions was
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not improper. See 8 C.F.R. § 1003.1(d)(3)(ii). Those conclusions
were reasonable and were supported by substantial evidence.
In sum, all of Enwonwu's challenges to the BIA's decision
on remand are either procedurally barred or without merit or both.
Accordingly, the petition is denied. See 1st Cir. Loc. R. 27.0(c).
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