Jonathan O. Madu v. Michael Chertoff

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15666
JULY 1, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-01380-CV-JEC-1
JONATHAN O. MADU,
Plaintiff-Appellant,
versus
MICHAEL CHERTOFF,
Secretary of the Department
of Homeland Security,
MICHAEL ROZOS,
Interim Director, Atlanta Bureau
of Immigration and Customs Enforcement,
ROSEMARY MELVILLE,
Director, Atlanta District U.S. Citizenship
and Immigration Services,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 1, 2008)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Jonathan O. Madu appeals the district court’s denial of his 28 U.S.C. § 2241
petition for a writ of habeas corpus 1, which alleged that the deportation order that
formed the basis for his current detention never came into being because he
departed the country voluntarily within the time permitted, i.e., before 5 June 1987.
On appeal, Madu argues that the district court clearly erred in denying his § 2241
petition because a preponderance of the evidence established that he departed to
Mexico before 5 June 1987. After review, we find that the district court did not
clearly err in determining that Madu did not show by a preponderance of the
evidence that he had departed the country prior to 5 June 1987, because the
evidence presented by Madu was unauthenticated and incomplete. Accordingly,
we AFFIRM.
I. BACKGROUND
On 17 May 2004, Madu, a Nigerian citizen, filed a petition for a writ of
habeas corpus in the U.S. District Court for the Northern District of Georgia,
1
As an initial matter, Madu may proceed before us despite the lack of a Certificate of
Appealability (“COA”). Under 28 U.S.C. § 2253(c)(1), a COA is required in a habeas
proceeding when “the detention complained of arises out of process issued by a State court,” or
the proceeding was pursuant to § 2255. By negative implication, a habeas proceeding involving
a federal detention complained of under § 2241 does not need a COA to appeal. See 28 U.S.C. §
2253(c); Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003).
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pursuant to 28 U.S.C. § 2241, alleging that his detention and imminent deportation
by the Department of Homeland Security (“DHS”) was illegal. Specifically, Madu
argued that his arrest by the DHS, pursuant to an order of deportation from 1987,
violated his due process because he had actually voluntarily departed the United
States before the order was issued. Madu also filed an emergency motion to stay
deportation while his petition was pending, which the district court granted.
After several filings by the parties, the district court summarized the dispute
as "whether [Madu] is subject to a final order of removal," noting that either he
departed the country as he claimed and no order went into effect or he did not leave
the United States and is subject to removal. R2-21 at 9. The court therefore
determined that Madu was challenging a final order of removal and found that the
REAL ID Act divested it of jurisdiction, and it transferred the action to us.
We held that Madu was not challenging a final administrative order of
removal because the question presented in the case was whether there was there
was a removal order at all. Madu v. U.S. Atty. Gen., 470 F.3d 1362, 1367 (11th
Cir. 2006). Therefore, the district court retained jurisdiction under § 2241 to hear
Madu’s habeas petition. Id. We vacated the district court’s order transferring the
case and remanded it to the district court for habeas proceedings, including an
evidentiary hearing, to determine whether Madu complied with the voluntary
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departure order by leaving the country. Id. at 1368.
At the district court’s evidentiary hearing, Madu testified and submitted
documentary evidence. Priscilla Sterling-Madu testified that she married Madu in
1984, they divorced in 1985, and then later remarried. She said that Madu went to
Mexico in 1987 because he had to leave the country by June 5th of that year. R3 at
57. She let him take their son to make sure he would come back, but immediately
explained that she allowed Madu to take their son “just to make it easy for him to
get a visa to come back.” Id. at 57-58. She did so although they were not married
at the time and, in fact, she was married to someone else. Id. at 57, 59-60. A
friend took Madu and her son to the airport, and Madu called her from Mexico. Id.
at 58-59. Madu and his son rode a bus back from Mexico. Id. at 59. Onyema Joe
Maduabuchi, Madu’s son, testified that he went to Mexico with his father. Id. at
68. Although he was only two years old, he remembered bits and pieces of the
trip, and knows “for a fact” that he went to Mexico. Id. The government then
presented the testimony of Terry Bird, chief counsel for Immigration and Customs
Enforcement (“ICE”) in Atlanta, Mark Lee Johns, acting assistant field officer
director for the Department of Immigration, and Mildred Ellis, an immigration
officer for DHS.
Following the evidentiary hearing, the district court entered a written order
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denying Madu’s § 2241 petition and dismissing his case. The court first
determined that it would review the evidence presented de novo to decide whether
Madu had established that he had traveled to Mexico before 5 June 1987, by a
preponderance of the evidence. The court first found that Madu had shown himself
to be willing to “game” the immigration system and that he had a strong interest to
lie in this case, but it noted that it was not focusing on these findings in its
determination that Madu had not traveled to Mexico, but, instead, that
determination was based on the circumstances surrounding the alleged trip and the
corroborating evidence. R2-36 at 20. The court then noted that Madu’s credibility
was hurt by the fact that he had a felony conviction for making false statements to
obtain student assistance, but noted that in determining his credibility, the court
relied more on the specific plausibility of his story and his demeanor on the stand.
Id. at 20-21.
Based on the improbability of Madu’s story and his demeanor on the stand,
the court found Madu’s testimony that he traveled to Mexico unbelievable.
Specifically, the court found the details regarding his reentry into the United States
to be implausible because, according to Madu, his passport bore a stamp denying a
visa from the U.S. embassy in Mexico, and Bird had testified that border agents
would not have allowed Madu into the country under the circumstances. Id. at 22.
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Next, the court found that Madu’s failure to create reliable documentary evidence
of his trip to Mexico was at odds with his purpose of the trip and the trouble he
would have gone through in traveling, although the court recognized that he was
not under an obligation to have created a record of such evidence. Id. at 22-24.
The court also determined that it would have been reasonable for Madu to inform
INS that his travel plans had changed and that he would travel to Mexico instead of
Nigeria in order to avoid the entry of a deportation order, which his testimony
shows he knew would occur if he did not actually depart. Id. at 24-25.
Additionally, the court noted that Madu’s explanation that he lost his passport in a
tornado was “convenient,” and did not believe him on that point. Id. at 24 n.10.
The court then found the testimony of Madu’s wife to be of limited value
because she did not see him board a plane for Mexico and the phone call she
received could have come from anywhere. Id. at 25. The court also found that it
could not credit the testimony of Madu's son because he was only two-and-a-half
years old when the trip allegedly happened, and research has shown that
individuals are unable to remember events that occurred before the age of
approximately three-and-a-half. Id. at 25-26. Therefore, his son may have been
convinced by his father that he traveled to Mexico, and he might think he
remembers traveling there, but his testimony was not probative on the fact. Id. at
6
26.
The court then addressed Madu’s documentary evidence. First, the court
noted that Madu never offered his original passport, and found that since the
lawyer who certified the copies did not testify at the hearing or present a statement
regarding the document, the document was not persuasive, especially considering
the ease with which the copies could have been falsified “with a pair of scissors,
cellophane tape, and a photocopy machine[.]” Id. at 26-27. The court noted that a
Google search of the supposedly authenticating lawyer’s name indicated that he
now practiced law in Washington, D.C. Id. at 27 n.12. The court also found that
the government refuted Madu’s claim that the INS must have accepted the copies
by showing that the only requirement for getting a work permit was submitting an
application. Id. at 27. The court observed that the remaining documents
demonstrated, at most, that someone had at some unspecified time planned a trip to
Mexico. The court noted that Madu had only submitted the copies of his passport
with his original application to stay deportation, and found that the fact that the
other evidence was presented only later further indicated that the documents were
not credible. Finally, the court determined that the absence of evidence that Madu
attempted to notify officials that he had actually left the country rendered his
evidence less credible, even though he was not required to do so. Having found
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that Madu did not establish by a preponderance of the evidence that he traveled to
Mexico before 5 June 1987, the court concluded that the order of deportation was
still in effect.
II. DISCUSSION
On appeal, Madu argues that the district court clearly erred in denying his §
2241 petition. He contends that a preponderance of the evidence established that
he departed to Mexico before 5 June 1987. Although he could not present his
original passport, he claims to have obtained copies that were kept by the INS
itself. He argues that the passport copies, along with the testimony of his wife and
son and the documentary evidence, all established that he traveled to Mexico on 18
May 1987. Madu contends that the district court was determined to reject the
petition, and ignored evidence that his passport was authentic and offered
insufficient reasons to reject his testimony, the testimony of his wife and son, and
his documentary evidence. In rejecting his passport, he claims that the court
ignored the evidence that showed that the copies were reliable, including the facts
that the copies were obtained from the INS as part of an application he made in
1990, long before the present proceedings, and they bore the certification of an
officer of the court, even if the INS never examined it at that time. Additionally,
although the court dismissed his story that his passport was destroyed by a tornado,
8
Madu notes that the record included a letter from FEMA for disaster assistance,
although the letter was not presented at the hearing. He also argues that the court
was also incorrect in dismissing his testimony regarding his reentry because it is an
open secret that the U.S.-Mexico border is porous, and incorrectly relied on
evidence of his 1993 conviction as its probative value did not substantially
outweigh its prejudice. Madu contends that the court did not cite a valid reason to
discount his former wife’s testimony, and the fact that on average a child does not
remember events occurring before the age of three-and-a-half does not mean that
his son did not remember traveling to Mexico, and the study the district court cited
was not in the record. He claims that, due to the tornado, it was not surprising that
the documentary evidence was fragmented or that it was not discovered right away.
“In reviewing the district court’s denial of a habeas corpus petition, we
review questions of law de novo and the court’s findings of fact for clear error.”
Coloma v. Holder, 445 F.3d 1282, 1284 (11th Cir. 2006) (per curiam) (quotation
and citation omitted). “A petitioner has the burden of establishing his right to
federal habeas relief.” Id. (quotation and citation omitted). As long as the district
court’s findings are plausible, we will not reverse the district court even if we
would have decided the case differently. United States v. McPhee, 336 F.3d 1269,
1275 (11th Cir. 2003) (quotation omitted). Finally, “we allot substantial
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deference” to the credibility determinations of the finder of fact. Id. (quotation
omitted). The only issue involved in this case is the factual determination of
whether Madu actually left the United States for Mexico before 5 June 1987. See
Madu, 470 F.3d at 1368.
Here, Madu did present evidence that tends to indicate that he traveled to
Mexico City at some point. Most important for his case are the copies of his
passport obtained from the INS. See R.Exh., Pl.’s Exh. 2. If authentic, these
copies would conclusively show that he traveled to Mexico City before 5 June
1987, as there is a stamp from the U.S. embassy in Mexico City bearing the date of
20 May 1987, which was consistent with the practice of an embassy when dealing
with a visa application. R3 at 107-08. These copies purport to be certified by an
officer of the court, as they were stamped by Madu’s lawyer at the time.
Furthermore, although the district court dismissed Madu’s story regarding a
tornado destroying his original passport, the record did contain evidence that he
was the victim of a natural disaster sometime in 1998. R1-7 at Exh. B. Madu also
presented the testimony of his son, who said that he knew for a fact that he had
traveled to Mexico City with his father, R3 at 68, and his wife, who said that a
friend dropped Madu off at the airport and that Madu called from Mexico to report
that he had not obtained a visa. Id. at 58-59. Although the district court dismissed
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the testimony of Madu’s son because, on average, children do not remember events
before they are roughly three-and-a-half years old, just because three-and-a-half is
the average age of memory-forming does not mean that Madu’s son could not have
remembered what would have been a particularly memorable event a year before
average. Finally, Madu also presented several documents that, when added
together, seem to show that he did travel to Mexico at some point with his son, see
R.Exh., Pl.’s Exhs. 1, 3-9, although not necessarily before 5 June 1987.
However, considering the weaknesses of Madu’s evidence, the demanding
standard of review, and the fact that much of the case hinges on determinations of
credibility, we are persuaded that the judgment of the district court is due to be
affirmed. First, regarding Madu’s passport, although the copies came from the INS
and had been in its possession for a long time, R3 at 138, testimony established
that the copies would not have been examined in order to issue Madu a work
permit, but rather the application itself was all that was required. Id. at 142-43.
Moreover, although Madu testified that he presented the original and the INS made
copies of his passport, which his lawyer certified, id. at 23, 30-31, 34, that
procedure was not consistent with the practice of the INS, which would have
certified the copies itself. Id. at 89-91. Even though sending in copies was an
accepted practice for applications, an original would eventually be required, id. at
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102-03, 105-06, 144, 148-49, and the INS’s records did not indicate that anyone
there had ever actually seen Madu’s passport. Id. at 89-91. Finally, although the
copies purported to be authenticated by Madu’s then-lawyer, that individual did
not testify or present a statement verifying his signature. See R.Exh., Pl.’s Exh. 2.
This fact is especially important considering it was Madu’s burden to establish that
he had actually traveled to Mexico and, therefore, the authenticity of the document.
See Coloma, 445 F.3d at 1284.
The district court placed heavy weight on the fact that it found Madu's story
regarding his reentry back into the United States implausible. Madu argues that
this conclusion was improper because it is well known that the United
States-Mexico border is porous. Whether or not that statement is accurate, Madu
did not state that he was able to sneak through the border or that he was not asked
for proper documentation. Instead, he testified that he presented his Nigerian
passport and was allowed to pass through without question even though his
passport bore a stamp showing he applied for a visa, yet he did not have one. See
R3 at 26-28; R.Exh., Pl.’s Exh. 2. Bird testified that such a scenario was unlikely,
even when traveling with a U.S. citizen child with a U.S. passport. R3 at 87-89.
Therefore, the district court’s determination that Madu’s story regarding his reentry
was not credible is due deference. See McPhee, 336 F.3d at 1275.
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Madu challenges the district court’s decision to afford little, if any, weight to
the testimony of his wife and son and the additional documentary evidence he
presented. However, with the possible exception of his son’s testimony, this
evidence sheds little, if any, light on the issue. First, his wife had no direct
knowledge of Madu’s alleged trip because she did not take him to the airport or see
him board a plane, and the phone call she received from him could have been
placed from anywhere. See R3 at 57-59. Next, the additional documentary
evidence provided by Madu does seem to show that at some point he traveled to
Mexico City with his son, but, except for a postcard that was never mailed, none of
the documents bears any date and, therefore, they are of little or no probative value
on the issue of whether he traveled to Mexico City before 5 June 1987. See
R.Exh., Pl.’s Exhs. 1, 3-9. Although his son testified that he knew “for a fact” that
he had been to Mexico City, R3 at 68, he did not establish when the trip occurred
and, in fact, his testimony was unclear whether he knew for a fact that he had gone
because he remembered the trip or because he had been told by his father that he
had gone. Id. at 67-68. Finally, even if, as Madu asserts, the fact that the family’s
apartment was damaged by a tornado six years before he submitted his application
to stay deportation helps to explain why his documentary evidence is fragmented,
Madu had ample time to collect the documents that remained before he submitted
13
his application. Therefore, the court understandably considered the fact that the
supporting documents were not submitted to the INS to be suspicious. R2-36 at
28; see McPhee, 366 F.3d at 1275.
Madu also challenges the district court’s reliance on certain facts, including
his previous arrest for false statements and the fact the court’s determination that
he was willing to “game” the immigration system. However, the district court
specifically noted that although these facts tended to discredit Madu's testimony, it
would consider them only minimally or not at all in reaching its decision. R1-36 at
19-21. On the other hand, the court noted that it was relying heavily on Madu’s
demeanor on the witness stand. Id. at 21. We afford such determinations
substantial deference. See McPhee, 336 F.3d at 1275.
III. CONCLUSION
In light of the foregoing, Madu has not established that the district court
clearly erred in making the factual determination that he did not depart the United
States before 5 June 1987, especially considering that he bears the burden of
proving his eligibility for habeas relief, there is a demanding standard of review,
and much of the court’s determination was based on credibility determinations that
are entitled to substantial deference. Accordingly, we AFFIRM.
AFFIRMED.
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