Obiekwe, Stephen v. Gonzales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 23, 2006*
Decided August 23, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-4783
DR. OBIEKWE STEPHEN OKWUDIL Petition for Review of an Order of the
UGOCHUKWU, a/k/a Board of Immigration Appeals.
STEPHEN OBIEKWE, a/k/a
OKWULDILI OGOCHOKWU, a/k/a No. A26-435-165
O’BIAWKO STEPHENS, a/k/a
DR. O UGO, a/k/a
DR. O. UGOCHKWU,
Petitioner,
v.
ALBERTO R. GONZALES,
Attorney General of the United States,
Respondent.
ORDER
In 2005, an Immigration Judge (“IJ”) ordered Dr. Obiekwe Stephen Okwudil
Ugochukwu (as he calls himself here) deported on the basis that he is an
aggravated felon who is ineligible for relief from removal. The Board of
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and
record. See Fed. R. App. P. 34(a)(2).
No. 05-4783 Page 2
Immigration Appeals (“BIA”) affirmed both the IJ’s finding of removal and denial of
relief. Ugochukwu now petitions us to review the BIA’s decision. Because we lack
jurisdiction to address his principal claims, and because his reviewable claim is
unfounded, we deny his petition.
Over the past quarter century the immigration services have become quite
familiar with Ugochukwu and his many aliases. Beginning in 1981, Ugochukwu
(using the name Stephen Ogochukwu Obiekwe) entered the United States as a non-
immigrant student from his country of origin, Nigeria. After he married a United
States citizen about six months later his status was adjusted to permanent
resident. Ugochukwu’s residency status was rescinded in 1988, however, when the
former Immigration & Naturalization Service determined that his marriage was
merely one of convenience for immigration purposes. In 1991, Ugochukwu was
deported back to Nigeria after it was determined that he overstayed his student
visa and was convicted of bank fraud, false use of a Social Security number, and
student-aid fraud. However, in 1995 Ugochukwu was again admitted into the
United States as a permanent resident after his marriage to another United States
citizen. On the visa application submitted by his wife on his behalf, Ugochukwu
identified himself as Okwudili Ugochukwu; he also failed to state that he had been
deported earlier from the United States or reveal that he had previous convictions
for fraud.
Then in 1999, Ugochukwu was indicted for insurance crimes under 18 U.S.C.
§§ 1033(b), 2, and for reentering the United States as a removed alien, see 8 U.S.C.
§ 1326, the charges underlying this action. Specifically, the government alleged
that Ugochukwu, who then worked for an insurance company, forged the names of
the insurance company’s policy holders and creditors on checks payable to them,
and deposited the funds into a bank account that he had established under the
name “UA Adult and Children Services.” He pleaded guilty to the charges in 2000,
was sentenced to 78 months’ imprisonment, and ordered to pay $ 356,360.34 in
restitution.
In 2004, the Department of Homeland Security charged Ugochukwu (under
the alias Stephen Obiekwe) as removable because, among other reasons, his
conviction for insurance fraud constituted an aggravated felony. See 8 U.S.C.
§ 1101(a)(43)(M)(i) (defining an aggravated felony as a crime that “involves fraud or
deceit in which the loss to the victim or victims exceeds $ 10,000”). In response,
Ugochukwu applied for asylum, withholding of removal, and deferral of removal
under the Convention Against Torture (“CAT”). At the removal hearing,
Ugochukwu admitted that he had pleaded guilty to and was convicted of insurance
fraud. However, he denied that he actually committed the crime. He asserted,
rather, that he was blamed for the crime only because he was the “owner” of “UA
Adult and Children Services” (which, he claimed, was the “largest social service
No. 05-4783 Page 3
agency in the United States”), and pleaded guilty solely because he “was threatened
with thirty years [in prison].” Ugochukwu then presented evidence supporting his
applications for relief in lieu of removal. As relevant here, he claimed that he is a
homosexual who would be subject to imprisonment and torture upon return to
Nigeria. To support this claim, he submitted the State Department 2004 Country
Report on Nigeria that mentions only that homosexuality is outlawed in Nigeria’s
“northern states that have adopted Shari’a [law]”.
After hearing Ugochukwu’s proffered evidence, the IJ issued an oral opinion
finding Ugochukwu removable and denying his requests for relief. The IJ rejected
Ugochukwu’s attempted collateral attack on his conviction and found him
removable because his undisturbed conviction for insurance fraud constituted an
aggravated felony that was also a “particularly serious crime.” See 8 U.S.C.
§§ 1158(b)(2)(A)(ii), (b)(2)(B)(i) (stating that Attorney General may deny asylum if
petitioner is convicted of an aggravated felony); id. § 1231(b)(3)(B)(ii) (stating that
Attorney General may deny withholding of removal to petitioner who has “been
convicted by a final judgment of a particularly serious crime”).
Finally, the IJ denied Ugochukwu’s request for deferral of removal under the
CAT. He stated that Ugochukwu’s 25-year history of deceiving the immigration
services through his use of many aliases, along with his history of crimes involving
“deception, fraud, deceit” and “complete disregard of the laws of the United States,”
made his assertion that he is a homosexual not credible. But, the IJ continued,
even if he were a homosexual, he presented no evidence supporting his claim that
he would face imprisonment and torture upon return to Nigeria. Ugochukwu
appealed to the BIA challenging the IJ’s denial of CAT relief. The BIA affirmed,
adopting the IJ’s findings that Ugochukwu’s claim of homosexuality was not
credible and that, in any event, he failed to prove that he would face imprisonment
and torture upon return to Nigeria.
On appeal, Ugochukwu seeks review of the IJ’s removal order on the ground
that the IJ misevaluated his evidence of persecution. However, we lack jurisdiction
to review the removal order on this ground. Under 8 U.S.C. § 1252(a)(2)(C), we are
generally prohibited from reviewing orders to remove if the alien was convicted of
an “aggravated felony,” 8 U.S.C. § 1227(a)(2)(A)(iii); see also Calcano-Martinez v.
INS, 533 U.S. 348, 351 (2001); Flores-Leon v. INS, 272 F.3d 433, 437 (7th Cir.
2001), meaning, as pertinent here, a crime that “involves fraud or deceit in which
the loss to the victim or victims exceeds $ 10,000,” 8 U.S.C. § 1101(a)(43)(M)(i). We
have jurisdiction to review only those portions of Ugochukwu’s petition that raise
“constitutional claims or questions of law.” See 8 U.S.C. § 1252(a)(2)(D); Mireles v.
Gonzales, 433 F.3d 965, 969 (7th Cir. 2006) (exercising jurisdiction to address
petitioner’s “constitutional claims or questions of law” under 8 U.S.C.
§ 1252(a)(2)(D) while recognizing lack of jurisdiction over other claims); Hamid v.
No. 05-4783 Page 4
Gonzales, 417 F.3d 642, 645 (7th Cir. 2005) (“8 U.S.C. § 1252(a)(2)(D), gives us
jurisdiction to review ‘constitutional claims or questions of law’—such as
[petitioner’s] due-process claim—raised in a petition for review even if the
petitioner is an aggravated felon.” (citing Gattem v. Gonzales, 412 F.3d 758, 762-63
(7th Cir. 2005))).
There is abundant evidence here that Ugochukwu committed insurance
fraud. Ugochukwu admitted to the IJ—and the record so reflects—that he pleaded
guilty to insurance fraud and that the loss to his victims exceeded $ 10,000. See 8
U.S.C. § 1101(a)(43)(M)(i). This evidence surpasses the deferential substantial
evidence standard we use for reviewing factual matters. See Uwase v. Ashcroft, 349
F.3d 1039, 1041 (7th Cir. 2003). And since Ugochukwu does not challenge the IJ’s
determination that his conviction for insurance fraud constituted an aggravated
felony, we lack jurisdiction to address any argument raised in his petition that does
not implicate a “constitutional question” or “issue of law,” see 8 U.S.C.
§ 1252(a)(2)(C); Calcano-Martinez, 533 U.S. at 351; Flores, 350 F.3d at 669.
Ugochukwu’s main argument is that the IJ and BIA failed to evaluate
adequately his proffered evidence that he, as a purported homosexual, faced
imprisonment and torture upon return to Nigeria. Because this argument merely
attacks “whether the [IJ or the BIA] correctly considered, interpreted and weighed
the evidence presented,” it is not a constitutional or legal challenge. See Hamid,
417 F.3d at 647; see also Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th Cir. 2004).
Accordingly, we do not have jurisdiction to review it. See 8 U.S.C. § 1252(a)(2)(C);
Mireles, 433 F.3d at 969; Hamid, 417 F.3d at 647.
Ugochukwu, however, does make one claim that we have jurisdiction to
address. In an undeveloped argument, he asserts that his due process rights were
violated when a translator “incorrectly translated portions of petitioner’s testimony
leading to a misunderstanding by the Immigration Judge [and] the BIA.” Although
this claim constitutes a “constitutional question” which we may review, see
Nazarova v. INS, 171 F.3d 478, 484 (7th Cir. 1999) (“A non-English-speaking alien
has a due process right to an interpreter at her deportation hearing because, absent
an interpreter, a non-English speaker’s ability to participate in the hearing and her
due process right to a meaningful opportunity to be heard are essentially
meaningless.”), it nevertheless fails. Ugochukwu does not point to any
mistranslation that prejudiced his case, and the record shows that at the beginning
of each hearing Ugochukwu himself told the IJ that he can understand English and
speak it fluently. See Kuqo v. Ashcroft, 391 F.3d 856, 858 (7th Cir. 2004)
(“[Petitioner’s] claim founders on his inability to demonstrate either that the
translation was actually flawed or that he was prejudiced by the allegedly
ineffective translation.”).
We accordingly DENY Ugochukwu’s petition for review.