Bosede, Stephen A. v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1625
STEPHEN BOSEDE,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A23-162-352
____________
ARGUED FEBRUARY 12, 2007—DECIDED JANUARY 14, 2008
____________
Before KANNE, ROVNER, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Stephen Bosede, a Nigerian
citizen who has lived in the United States for 27 years,
was ordered removed after he was convicted twice for
possession of small amounts of cocaine and once for
retail theft. In his petition for review, he principally
argues that the Immigration Judge (IJ) erroneously
concluded that his two drug offenses are “particularly
serious crimes” that make him statutorily ineligible for
withholding of removal, and that the IJ violated his
right to due process by rejecting his application for with-
holding of removal relief under the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treat-
2 No. 06-1625
ment or Punishment (CAT). We grant his petition for
review and remand to the Board of Immigration Appeals
(BIA).
Bosede came to the United States from his native
Nigeria in 1980 and became a permanent resident in 1982.
He is married to a U.S. citizen and has two children. In
1997 he was diagnosed with HIV, and he now follows a
strict treatment regimen. He is an active member of the
community—he holds a job, stays involved in his church,
performs volunteer work, and attends college classes.
But he also has a criminal record. In 1993 he was con-
victed of possessing 0.1 gram of cocaine and was sen-
tenced to two years in prison. See 720 ILCS 570/402(c). In
1995 he again was convicted of possessing cocaine, this
time 0.4 gram, and was sentenced to a one-year term of
imprisonment. See id. And in 2000 he received a one-
year sentence after he was convicted of retail theft for
drinking liquor in a grocery store without first stopping
at the cash register to pay for it. See 720 ILCS 5/16A-3(a).
After the third conviction the Immigration and Naturaliza-
tion Service, now the Department of Homeland Security,
charged him with removability as an alien convicted of
a drug offense and an aggravated felony. See 8 U.S.C.
§ 1227(a)(2)(A)(iii), (B)(i). Bosede then applied for asylum,
withholding of removal, and protection under the CAT
claiming he would be persecuted on the basis of his
religion—he is a Christian—and his HIV status. But the
BIA ruled against him and ordered him removed, and he
petitioned this court for review.
The first time this case was before us, we dismissed
Bosede’s petition because we lacked jurisdiction to review
his final order of removal. Bosede v. Ashcroft, 309 F.3d
441 (7th Cir. 2002). But we expressed concerns about
perceived flaws in the proceedings and remarked that
the IJ apparently had decided “Bosede’s fate based on a
fundamental mistake of fact, brought about through
No. 06-1625 3
sloppy legal representation and a general failure to
follow up on information that would have brought the
mistake to light.” Id. at 443. We encouraged the govern-
ment to agree to reopen the proceedings, id. at 447, which
it did. The BIA granted Bosede’s and the government’s
joint motion to reopen and remanded the case to the IJ.
In the second round of proceedings before the IJ in 2003,
Bosede submitted an affidavit reiterating that he fears
persecution in Nigeria because he is a Christian and
is infected with HIV. He maintained that he visited
Nigeria in 1999 and was detained by authorities at the
airport when they discovered he is HIV-positive. They
released him, he explained, only when he agreed to stay
in a hotel they specified. Bosede, though, feared the
authorities would harm him, so he escaped from the
hotel. He was able to leave Nigeria, he said, only by pay-
ing a bribe to get through security undetected.
In this second round Bosede further asserted that if
returned to Nigeria he will be imprisoned under a law
commonly known as Decree 33, which mandates a five-
year sentence for “any Nigerian citizen found guilty in
any foreign country of an offense involving narcotic
drugs or psychotropic substances and who thereby brings
the name of Nigeria into disrepute.” National Drug Law
Enforcement Agency (Amendment) Decree No. 33 (1990)
(Nigeria). The IJ requested and received evidence from
the State Department’s Bureau of Democracy, Human
Rights and Labor, which advised that Decree 33 is still
in force.
Bosede also introduced evidence that, in a Nigerian
prison, he would face extreme hardship because of his
HIV status. He submitted news reports showing that
the death rate of HIV-infected prisoners in Nigeria is
high because they do not have access to doctors and
medication, and because the poor nutrition that Nigerian
4 No. 06-1625
prisoners suffer eliminates or greatly reduces the effec-
tiveness of any medication they might receive. The State
Department’s submission supported this contention,
noting that at least one HIV-positive prisoner in Nigeria
had died because of insufficient medical treatment.
Bosede also submitted reports from the State Department,
Human Rights Watch, and Amnesty International, all of
which noted that prisoners in Nigeria are severely mis-
treated and that the responsible Nigerian officials operate
with impunity. See U.S. Department of State, Report on
Human Rights Practices: Nigeria 2, 5-6 (2005); Human
Rights Watch, Obasanjo Confirms Torture, Killing by
Police (Aug. 22, 2005), http://hrw.org/english/docs/2005/
08/22/nigeri11650.htm; Amnesty International, Nigerian
Prisoners Die in ‘Inhuman’ Conditions (Mar.-Apr. 1998). In
short, Bosede argued that a return to Nigeria was akin
to a death sentence.
The IJ again rejected Bosede’s application for withhold-
ing of removal and CAT protection (by this time Bosede
had abandoned his asylum claim). The IJ first con-
cluded that Bosede is statutorily ineligible for withhold-
ing of removal because his two drug offenses are “particu-
larly serious crimes.” If an alien has committed a particu-
larly serious crime, the alien is ineligible for withholding
of removal. See 8 U.S.C. § 1231(b)(3)(B). The Attorney
General has the discretion to determine whether an
alien has committed a particularly serious crime. See id.
The IJ noted that the Attorney General has determined
that aggravated felonies involving drug trafficking are
presumed to be particularly serious crimes. See In re Y-L,
23 I. & N. Dec. 270, 274 (BIA 2002). He observed that the
Immigration and Nationalization Act defines “drug
trafficking crime,” 8 U.S.C. § 1101(a)(43)(B), by incorporat-
ing the definition in 18 U.S.C. § 924(c)(2), which is “any
felony punishable under the Controlled Substances Act.”
The IJ reasoned that because both of Bosede’s convic-
No. 06-1625 5
tions for cocaine possession are felonies under Illinois law,
see 720 ILCS 570/402(c), and because they involved
conduct punishable under the Controlled Substances
Act, see 21 U.S.C. § 844(a), they meet this definition of
drug trafficking. Even though the IJ noted that each
conviction involved less than one gram of cocaine, he
concluded without elaboration that Bosede had not
“presented the type of rebuttal evidence necessary to
offset the conclusion that he has been convicted of a
particularly serious crime.”
The IJ went on to deny Bosede’s CAT claim and also
explained that he would have denied Bosede’s applica-
tion for withholding of removal even if Bosede was not
statutorily barred from bringing it. He rejected Bosede’s
argument that, if returned to Nigeria, he would be im-
prisoned because of his drug possession in the United
States and would suffer torture in prison as an HIV-
positive inmate. The IJ recognized that Nigerian prisons
are “decrepit,” that they often lack “healthcare and access
to medication,” and that an “HIV positive prisoner could
face a possibility of death due to a lack of medication.” Yet
the IJ deemed none of this relevant on the theory that,
although Decree 33 is still in force, Bosede had “not
shown that he will be necessarily detained on his return
to Nigeria.” The IJ acknowledged that because of Decree
33 “a drug offender should worry about his survival,” but
he determined that Bosede had not proved he would
“automatically be detained.” Further, the IJ remarked
that since Bosede had once paid a bribe to escape Nigeria
after being detained, he might have “other options avail-
able to avoid detention” even if he is arrested when
returned. In a short order the BIA affirmed the IJ’s
ruling, so we examine the IJ’s written opinion as sup-
plemented by the BIA. See Gjerazi v. Gonzales, 435 F.3d
800, 807 (7th Cir. 2006).
6 No. 06-1625
Bosede first argues that the IJ erred as a matter of law
in characterizing each of his cocaine possessions as a “drug
trafficking crime” under 18 U.S.C. § 924(c)(2), and conse-
quently, as a particularly serious crime under 8 U.S.C.
§ 1231(b)(3)(B) and In re Y-L, 23 I. & N. Dec. at 274. The
government counters that 8 U.S.C. § 1252(a)(2)(C) bars
our jurisdiction because Bosede is an aggravated felon.1
The government is correct that for an alien with an
aggravated felony conviction, § 1252(a)(2)(C) “blocks
judicial review of the removal order whether or not the
agency has made a discretionary decision,” such as
whether the crime is “particularly serious.” Petrov v.
Gonzales, 464 F.3d 800, 802 (7th Cir. 2006). Bosede has
conceded that he is an aggravated felon, and ordinarily
that would be the end of the story—we would be unable to
review his removal order. But we do retain jurisdiction to
consider constitutional claims and questions of law, see 8
U.S.C. § 1252(a)(2)(D); Feto v. Gonzales, 433 F.3d 907, 912
(7th Cir. 2006); Ramos v. Gonzales, 414 F.3d 800, 802 (7th
Cir. 2005), including due-process claims, see Petrov, 464
F.3d at 802-03 (holding that court lacked jurisdiction to
consider aggravated felon’s argument that BIA erred in
finding crime particularly serious, but going on to con-
sider due-process argument). And here the flaws in the
IJ’s reasoning cause us to doubt whether Bosede re-
ceived the fair hearing to which he is statutorily and
constitutionally entitled.
The IJ determined that Bosede committed a drug
trafficking crime and presumed that this offense was a
1
We note that the analysis that the IJ used to determine
whether Bosede’s offenses for simple possession of cocaine
constitute “drug trafficking crimes” is inconsistent with the
Supreme Court’s decision in Lopez v. Gonzales, 127 S. Ct. 625,
633 (2006). However, Bosede concedes that his conviction for
retail theft makes him an aggravated felon.
No. 06-1625 7
“particularly serious crime” barring withholding of re-
moval. But that presumption is not preclusive, and there
lies the real flaw in the government’s jurisdictional
argument, because the IJ failed to give serious consider-
ation to whether the presumption must give way in this
case. The BIA has recognized that an alien can rebut
the presumption by establishing “unusual circum-
stances.” In re Y-L, 23 I. & N. Dec. at 276. To do so, the
alien must first establish that his drug trafficking crime
involved (1) a very small quantity, (2) a very modest
payment, (3) only peripheral involvement, (4) the
absence of any violence or threat of violence, (5) the
absence of any connection to organized crime or terrorism,
and (6) the absence of any adverse or harmful effect on
juveniles. Id. at 276-77. If the alien satisfies the six
criteria, the alien must also show “other, more unusual
circumstances (e.g., the prospective distribution was
solely for social purposes, rather than for profit).” Id. at
277. Here, the IJ decreed that Bosede did not put for-
ward “the type of rebuttal evidence necessary to offset the
conclusion that he has been convicted of a particularly
serious crime.” But this statement is unexplained and
undercut by the IJ’s findings that both of Bosede’s offenses
were for possession of less than one gram of cocaine and
that Bosede was not involved in dealing drugs. Further-
more, there are other facts in the record that support
the argument that Bosede meets the criteria needed to
establish unusual circumstances. The IJ did not con-
front this evidence in any meaningful way, and his fail-
ure to consider all of the evidence leads us to question
the adequacy of Bosede’s hearing.
And this is not all. The IJ’s cavalier attitude towards
Bosede’s claims is reflected elsewhere in his opinion. In
rejecting Bosede’s contention that he more likely than
not would be imprisoned if returned to Nigeria, the IJ
observed that Bosede could bribe Nigerian officials to
8 No. 06-1625
avoid imprisonment. The IJ relied on Bosede’s testimony
that he once secured his release from custody by paying
a bribe and concluded that if Bosede is forced to return
to Nigeria he may have “other options available to
avoid detention.” We are appalled that the IJ would rest
his decision on the absurd proposition that Bosede could
evade imprisonment, mistreatment, and possibly death
by approaching his jailers and trying to buy his way out.
We cannot agree with the government’s argument this
was simply a “factual finding” and, at most, an unimpor-
tant comment that did not form the basis of the IJ’s
decision. We have said before and underscore here that
whether an alien might succeed in escaping persecution
or torture through bribery is an irrational and alto-
gether improper consideration in deciding a claim for
asylum or other relief. See Oyekunle v. Gonzales, 498 F.3d
715, 717 (7th Cir. 2007); Giday v. Gonzales, 434 F.3d 543,
555 (7th Cir. 2006) (observing that it is error of law for
IJ to deny relief based on assumption that refugee can
escape persecution through bribery).
Furthermore, even after seeking and obtaining con-
firmation from the State Department that Decree 33
remains in force, the IJ still scoffed at Bosede’s conten-
tion that his minor drug offenses will land him in prison
if he is returned to Nigeria. The IJ reasoned that Bosede
had not shown that Decree 33 would be enforced against
him, but we are confused as to what kind of further proof
the IJ expected. Short of presenting himself to Nigerian
authorities and waiting to see their reaction, we do not
fathom how, at this juncture, Bosede could do more than
take at face value the State Department’s evidence that
Decree 33 has not fallen into desuetude. The State Depart-
ment did not qualify its confirmation, and yet without
explanation the IJ ignored the import of the evidence he
received: Bosede has run afoul of a currently enforced
decree that requires the imprisonment of “any Nigerian
No. 06-1625 9
citizen found guilty in any foreign country of an offense
involving narcotic drugs or psychotropic substances and
who thereby brings the name of Nigeria into disrepute.”
Aliens in the United States, no matter their immigra-
tion status, are entitled to due process. See Zadvydas v.
Davis, 533 U.S. 678, 693 (2001); Kerciku v. I.N.S., 314
F.3d 913, 917 (7th Cir. 2003). Thus, they are protected
against arbitrary government action that “shocks the
conscience” and cannot be justified by any government
interest. See County of Sacramento v. Lewis, 523 U.S. 833,
845 (1998); United States v. Salerno, 481 U.S. 739, 746
(1987); Remer v. Burlington Area Sch. Dist., 286 F.3d 1007,
1013 (7th Cir. 2002). This right, which extends to removal
hearings, see Capric v. Ashcroft, 355 F.3d 1075, 1087
(7th Cir. 2004), and has been codified, see 8 U.S.C.
§ 1229a(b)(4)(B); 8 C.F.R. § 1240.1(c), guarantees a
proceeding where the alien has a “ ‘meaningful opportunity
to be heard.’ ” Boci v. Gonzales, 473 F.3d 762, 768 (7th Cir.
2007) (quoting Kerciku, 314 F.3d at 917).
The government contends that we cannot consider
whether the proceedings comported with due process
because Bosede failed to exhaust his administrative
remedies by raising this issue before the BIA in the first
instance. As the government concedes, however, when
there has been a fundamental, substantive constitutional
violation, exhaustion is not required. See Pasha v. Gonza-
les, 433 F.3d 530, 536-37 (7th Cir. 2005); Asani v. I.N.S.,
154 F.3d 719, 729 (7th Cir. 1998). Here, the IJ’s flawed
reasoning and reliance on an improper consideration
constitute a “fundamental failure of due process,” so
we can consider Bosede’s due-process argument re-
gardless of whether he exhausted his administrative
remedies by addressing the violation before the BIA. See
Asani, 154 F.3d at 729.
10 No. 06-1625
Our reading of the administrative record leaves us
convinced that the IJ cared little about the evidence and
instead applied whatever rationale he could muster to
justify a predetermined outcome. See Kerciku, 314 F.3d
at 918 (finding violation of procedural due process
where IJ first made up his mind about alien’s claims and
refused to listen to testimony). The flaws in the IJ’s
opinion call into question the fairness of the proceedings,
and since we cannot be confident that Bosede’s hearing
comported with statutory requirements or met minimum
standards of due process, Bosede is entitled to a new one.
See Floroiu v. Gonzales, 481 F.3d 970, 976 (7th Cir. 2007).
And to avoid repetition of the same mistakes the third
time around, we urge the agency to refer this case to a
different immigration judge. See Niam v. Ashcroft, 354
F.3d 652, 660 (7th Cir. 2004).
Accordingly, we GRANT the petition for review and
REMAND for further proceedings consistent with this
opinion.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-14-08