Adebowale, Adeoye O. v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2201
A DEOYE O RIADE A DEBOWALE,
Petitioner,
v.
M ICHAEL B. M UKASEY,
Attorney General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A98-814-677
A RGUED A UGUST 5, 2008—D ECIDED O CTOBER 24, 2008
Before P OSNER, C OFFEY, and M ANION, Circuit Judges.
C OFFEY, Circuit Judge. Adeoye Adebowale, a Nigerian-
born citizen of the United Kingdom, was ordered
removed after he failed to appear at the scheduled hear-
ing. Shortly thereafter he filed a motion to reopen
his asylum proceedings. The immigration judge (IJ)
denied the motion, and the Board of Immigration Appeals
(BIA) upheld that decision. Adebowale petitions this
2 No. 07-2201
court for review, but this court lacks jurisdiction because
his challenge is only as to questions of fact not questions
of law underlying the discretionary decision on his motion.
Adebowale, who purports to be a solicitor, claims that he
was persecuted on account of his race, nationality, and
membership in a social group. He explains that in
August 2001 police in London arrested and detained
him for thirteen hours on suspicion of using a stolen
credit card, a crime he says he did not commit. He
alleges that this arrest was part of a campaign by British
police to harass him with unsubstantiated criminal
charges because of his reputation as a human-rights
advocate and because of their belief that his Nigerian
ethnicity makes him a “fraudster.” 1 Adebowale was
admitted into the United States in December of 2004
under the Visa Waiver Program, but he failed to depart
by the required date, March 2005. Just one week after
the deadline for his departure, he applied for asylum
and withholding of removal. At a status hearing before
the IJ, he was notified in person that his asylum hearing
would be conducted on September 7, 2006. Also,
Adebowale was personally served with written notice
of the hearing date.
Adebowale failed to appear at the September 7 hearing
and was ordered removed in absentia. The next day,
1
Adebowale did not elaborate on this point other than to
assert that “there is a pervading view in the U.K. police that
all persons of Nigerian origin are frauders and/or have a
propensity for such.”
No. 07-2201 3
September 8, 2006, he appeared at the building where
his hearing was to have been conducted and, after speak-
ing with the staff, he filed a handwritten motion to
reopen. He claimed that he misread the notice of his
hearing and thought that the hearing was set for
September 9, not September 7. Without elaborating, he
stated that his mistake might have resulted from an
alleged disorientation accompanying a “viral infection”
during the previous week and the stress of his being
“threatened with homelessness.”
In denying Adebowale’s motion, the IJ concluded that
Adebowale had received adequate notice of the asylum
hearing and had failed to demonstrate the exceptional
circumstances required to excuse his absence. The IJ
pointed out in his decision that Adebowale’s illness
could not have left him bedridden or have been so
severe because he was able to personally appear and file
his motion to reopen on the following day, September 8.
And, the IJ continued, Adebowale presented no evidence
(much less offered any details) in substantiation of his
alleged illness. Additionally, the IJ noted the absence of
evidence suggesting that a threat of eviction prevented
Adebowale from attending his hearing. In contrast, the
IJ said, the September 7 hearing date was clearly set forth
in the written notice to appear that Adebowale had re-
ceived. Furthermore, he was also advised of the location,
date, and time of the hearing in person at the prior
status hearing, and at that earlier hearing Adebowale
confirmed that he understood the date and the conse-
quences of failing to appear. The BIA upheld the IJ’s
decision, noting the lack of evidence to substantiate the
allegations set forth in Adebowale’s motion to reopen.
4 No. 07-2201
Adebowale petitions for review of the denial of his
motion to reopen. Where the decision of the BIA relies on
the decision of the IJ, we review the decision of the IJ as
supplemented by the BIA. Terezov v. Gonzales, 480 F.3d
558, 560 (7th Cir. 2007); see also Oryakhil v. Mukasey, 528
F.3d 993, 998 (7th Cir. 2008). This court lacks jurisdiction
to review decisions on motions to reopen except con-
stitutional claims or questions of law. Huang v. Mukasey,
534 F.3d 618, 620 (7th Cir. 2008); Kucana v. Mukasey, 533
F.3d 534, 535-37 (7th Cir. 2008). A question does not
become “constitutional” or “legal” just because its resolu-
tion involves the application of a legal standard; other-
wise, nearly all factual determinations would fall within
our jurisdiction despite Congress’ mandate to the con-
trary. See Huang, 534 F.3d at 620; Kucana, 533 F.3d at 536-37.
Rather, a legal question arises when the BIA has misinter-
preted a statute, regulation, or constitutional provision,
misread its own precedent, applied the wrong legal
standard, or failed to exercise its discretion. Huang, 534
F.3d at 620; see Khan v. Mukasey, 517 F.3d 513, 517-18 (7th
Cir. 2008); Zamora-Mallari v. Mukasey, 514 F.3d 679, 694 (7th
Cir. 2008); Bosede v. Mukasey, 512 F.3d 946, 950-51 (7th
Cir. 2008). Adebowale has failed to present either
a constitutional or legal claim.
First, Adebowale quibbles with the determination that
his failure to appear was not justifiable. In his filing, the
petitioner states that the IJ and BIA failed to give
adequate consideration to his allegation of illness and
did not properly investigate and weigh the circumstances
that supposedly kept him from attending. But as this
court said in Huang, 534 F.3d at 621, a disagreement with
No. 07-2201 5
the weight assigned by the immigration courts to
particular evidence does not present a question of law.
See also Kucana, 533 F.3d at 536-37; Khan, 517 F.3d at 517-18.
Second, Adebowale contends that the IJ and BIA applied
a de facto requirement that he produce medical records
to substantiate his allegation of illness. By doing so, he
argues, the IJ and BIA discriminated against him because
he cannot afford to pay for medical services. But
Adebowale misrepresents what actually transpired
before the IJ. The IJ did not demand medical evidence, but
instead noted that the lack of any corroborating
evidence, including medical records, harmed the cred-
ibility of Adebowale’s factual allegations. Adebowale
did not even describe the symptoms that he suffered or
explain why his illness prevented him from attending
the hearing or accurately reading the date on the
hearing notice. Indeed, Adebowale said only that he
suffered from a “viral illness” that disoriented him and
possibly contributed to his mistake. Adebowale’s argu-
ment on this point really is an attempt to have this court
reconsider whether his assertions, standing alone, consti-
tuted compelling evidence of a serious condition that
prevented him from attending the hearing, and that is a
factual question not premised on any legal mistake on
the part of the IJ or BIA. See Zamora-Mallari, 514 F.3d at
694 (explaining that petitioner cannot disguise legal
argument as factual one). As we pointed out earlier, this
court lacks jurisdiction over this argument as well.
Finally, Adebowale argues that the notice to appear
for his September 7 hearing was inadequate and thus
6 No. 07-2201
violated his right to due process because it incorrectly
stated that he was scheduled for a removal hearing when
he was actually scheduled for an asylum hearing. (That
does not, of course, explain his failure to appear.) He also
contends that the notice of the IJ’s in absentia order of
removal violates his right to due process because it
does not state that the decision was in absentia and
also says that his claims were denied rather than deemed
abandoned. These arguments are nothing but another
attempt to invoke our jurisdiction when there is in fact
no legal question at stake. Regardless what Adebowale’s
notice designated the hearing as, the notice was clear
that he had to appear. Equally clear were the admonish-
ments delivered by the IJ. And Adebowale’s allegations
about the specific language in the order of removal are
irrelevant because he already had moved to reopen the
proceedings on September 8, before the written order of
removal was even issued. Thus, the language in the
order of removal was clear and could not have had
any bearing on his actions. Adebowale’s alleged
misdesignation of the nature of the hearing could not
possibly implicate due process, and that word choice
is inadequate to make legal questions of his arguments.
See Zamora-Mallari, 514 F.3d at 694. This court lacks
jurisdiction over these contentions as well.
D ISMISSED.
10-24-08