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Eke v. Mukasey

January 7, 2008


Petition for Review of an Order of the Board of Immigration Appeals. No. A97-322-428.

The opinion of the court was delivered by: Wood, Circuit Judge

ARGUED MAY 29, 2007

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

Facing expedited removal from the United States as an alien convicted of committing an aggravated felony, Prince Henry Eke filed this petition for review from the decision of the Board of Immigration Appeals ("BIA" or Board) rejecting his request for withholding of removal. Initially, the Board argued before this court that we lacked jurisdiction to consider Eke's arguments. After oral argument, however, the Attorney General withdrew that argument and, with the court's permission, filed a supplemental brief defending the Board's decision on the merits. Eke filed a response to that brief on November 28, 2007, and so the case is now ready for decision.

Eke claims that if he is returned to his native Nigeria, it is more likely than not that he will be harmed seriously or even killed, because he is homosexual. The Board rejected this assertion, relying primarily on adverse credibility determinations; it found that Eke was subject to summary removal based on his guilty pleas to three crimes of theft of financial identity. Before this court, Eke now presents four reasons in support of his petition: (1) his convictions were not for crimes that fall within the definition of "aggravated felony" under 8 U.S.C. § 1101(a)(43)(M)(i); (2) he should not have been required to provide corroborating evidence of his homosexuality; (3) the Board should have considered the pattern of persecution against homosexuals in Nigeria; and (4) Eke's due process rights were violated when the Immigration Judge ("IJ") insisted on conducting the hearing on the merits by video conference. We conclude that the government correctly conceded that we have jurisdiction over the petition, but that Eke's claims fail on their merits. We therefore deny his petition for review.


Eke is a 40-year-old native of Nigeria and member of the Ibo tribe. He claims to be a homosexual. Eke reported that he had a long-term sexual relationship with a male companion, Gozie, in Nigeria. Even though he tried to keep his sexual orientation a secret, Eke claimed that others in his community saw through his efforts, and he was, as a result, frequently harassed. According to Eke, his community's traditional law forbids homosexuality and regards it as punishable by death. After Eke's father was named king of his village, Eke allegedly became a prince and thus was responsible for certain ceremonial duties. Bowing to pressure from his family, he at that time married a childhood friend, Rose Mary, and accepted her two children as his own. The record indicates that these children, in fact, were his own. The IJ noted that Eke's testimony on this point shifted over time. On direct examination, he admitted that he had fathered the children but initially had disclaimed paternity "because he did not want (them) and thought it was incredible that he had children. However, on cross examination, [Eke] testified that he never consummated the marriage and that he did not have any physical relationship with Rose Mary. Later during his cross examination," Eke "testified further that he did in fact have sexual relations with Rose Mary, on at least two occasions, and that he did have two children with her." Eventually, the marriage failed, after Rose Mary discovered Eke and his lover Gozie in flagrante delicto. At that point, Eke was forced to flee his village. He took refuge in an isolated village for three years, until he obtained the documentation needed to come to the United States, which he believed would be more accepting of his sexual orientation. Once in the United States, he lived briefly with his sister, but, he testified, she asked him to leave because of his gay lifestyle. This rejection prompted him to divorce his Nigerian wife and to marry an American woman. The latter wife also discovered that he was gay and ended the relationship.

In 2004, Eke made the mistake of trying to help a friend buy a used car with false documentation. He presented another person's social security card, a permanent residence card, an Illinois driver's license, and a state ID card, in an effort to purchase an automobile worth more than $10,000. Caught in the act, Eke pleaded guilty to conspiring to violate the Illinois identity theft statute, 720 ILCS 5/16G-15(a), and to two substantive counts of identity theft. On April 27, 2005, the Department of Homeland Security ("DHS") served Eke with a Notice of Intent To Issue a Final Administrative Removal Order, based on those convictions. Although at one point Eke claimed that he never received this Notice, the government has now furnished a copy of it, and the copy shows clearly that Eke acknowledged service. More than that, the copy shows that Eke, by checking some boxes on the form, admitted the allegations in the Notice, admitted that he was deportable, waived his right to contest the charges, and designated Nigeria as the country to which he would be removed. Notwithstanding these representations, Eke then expressed a fear of persecution upon removal to Nigeria. DHS responded by putting Eke in proceedings for withholding of removal. An asylum officer found that Eke's fear was reasonable, but the IJ rejected his petition after a full hearing. The BIA agreed with the IJ, and Eke now presents his petition for review.


Although the government has now withdrawn its challenge to this court's jurisdiction, we have a duty independent of its concession to assure ourselves that jurisdiction is secure. We therefore begin by explaining why we too have concluded that we have jurisdiction over this petition.

This case arose under the provisions of the Immigration and Nationality Act ("INA") that authorize expedited removal of certain aliens who have been convicted of committing aggravated felonies. See INA § 238(b), 8 U.S.C. § 1228(b). Critically, section 238(b) allows a final removal order to issue without a hearing for the alien. Expedited removal begins with formal notice served on the alien. See 8 U.S.C. § 1228(b)(4) ("The Attorney General shall provide that . . . the alien is given reasonable notice of the charges and of the opportunity [to inspect the evidence and rebut the charges]."); 8 C.F.R. § 238.1 ("Removal proceedings . . . shall commence upon personal service of the Notice of Intent upon the alien . . . .") (emphasis added).

As we noted, DHS served Eke with a Notice of Intent To Issue a Final Administrative Removal Order on April 27, 2005. The Notice provided, consistently with 8 C.F.R. § 238(b)(2)(i), that Eke had 10 calendar days in which to respond to the charges. For an alien who does not file a response, the regulations provide that DHS may follow up with a Final Administrative Removal Order.

8 C.F.R. § 238.1(d). Eke's Notice informed him that he would be entitled to "seek judicial review of any final administrative order by filing a petition for review within 14 calendar days after the date such final administrative order is issued." DHS in fact issued its Final Order in Eke's case on May 5, 2005. Although Eke did not seek independent judicial review of that determination, what happened next was that DHS referred him for a credible-fear interview, based on his statement that he believed that he would be killed or injured upon his return to Nigeria because of his sexual orientation. An Asylum Officer from DHS's Citizenship and Immigration Services office interviewed him on June 2 and 30, 2005, and determined that Eke had demonstrated a reasonable fear of persecution. His case was then referred to the Immigration Court on July 19, 2005, for consideration of his petition for withholding of removal.

An IJ held a hearing on July 26, 2005, at which he considered Eke's eligibility for both withholding of removal and relief under the Convention Against Torture. With respect to the former, the IJ noted that Eke had the burden of demonstrating a clear probability of persecution in Nigeria on account of his race, religion, nationality, membership in a particular social group, or political opinion. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). In a written decision dated May 23, 2006, the IJ found that Eke failed to meet that burden. The record, the IJ thought, was riddled with inconsistencies going to the heart of Eke's claims; at one point Eke fraudulently entered into a marriage in order to obtain a benefit under the immigration laws; and Eke never sought asylum until after he had committed the aggravated felony. Eke's testimony was not even clear on such a major point as how and why his son was killed at the hands of the village elders. The IJ also found that Eke's commission of the crimes of identity theft independently barred him from withholding of removal, as those crimes were particularly serious, that Eke had not shown a clear probability of future persecution based on his sexual orientation, and that he had failed to show that the threat of persecution he faced existed throughout the country. On the last point, the IJ noted that Eke's claim that he could not relocate was not objectively reasonable, in light of the fact that he had remained in Nigeria for three years in a different village without apparent difficulty. The BIA affirmed the IJ's decision and denied Eke's motion to remand the matter to the IJ in a decision dated August 31, 2006.

Eke filed a timely petition for review from the BIA's order. We are satisfied that the Attorney General is correct that the immigration authorities were not finished with Eke's case until the BIA's final decision, and thus we are authorized to consider the question whether DHS correctly determined that Eke's state court convictions were "aggravated felonies" for purposes of the immigration laws. The Real ID Act, 8 U.S.C. § 1252(a)(1)(D), put an end to any doubt on the matter. Moreover, even before that, we had explained that "we retain jurisdiction to determine whether we have jurisdiction-that is, to determine whether an alien's criminal conviction is indeed an 'aggravated felony' under the INA, thereby triggering the jurisdictional bar of § 1252(a)(2)(C)." LaraRuiz v. INS, 241 F.3d 934, 938-39 (7th Cir. 2001).

Even though we lack jurisdiction to review the Attorney General's exercise of discretion to grant or deny relief to an alien, we have the authority to decide constitutional claims and questions of law. See 8 U.S.C. ยง 1252(a)(1)(D); Ali v. Achim, 468 F.3d 462, 465 (7th Cir. 2006). Our review of the determination that Eke committed an aggravated felony is de novo. Lara-Ruiz, 241 F.3d at 938-39. Our review of the legal ...

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