Osaghae v. U.S.I.N.S.

Decision Date05 September 1991
Docket NumberNo. 90-2150,90-2150
Citation942 F.2d 1160
PartiesJulius A. OSAGHAE, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Melville W. Washburn (argued), Jeffrey R. Tone, Sidley & Austin, Chicago, Ill., for petitioner.

Alison R. Drucker, David J. Kline, Carl H. McIntyre, Jr. (argued), Department of Justice Office of Immigration Litigation, Washington, D.C., A.D. Moyer, I.N.S., Chicago, Ill., for respondent.

Before POSNER, MANION and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Julius Osaghae, a Nigerian national who has been ordered deported, asks us to set aside a decision by the Board of Immigration Appeals denying his requests (which are in the alternative) for asylum, for withholding deportation on the ground that he has a well-founded fear of persecution by the Nigerian government if he is deported, or for suspending deportation on the ground of extreme hardship. 8 U.S.C. §§ 1158(a), 1253(h), 1254. He claims to have newly discovered evidence that the Board ought to consider--and he is met at the threshold by the government's argument that a reviewing court has no authority to direct the Board to consider newly discovered evidence.

We can dispatch the threshold argument quickly enough. The statute that empowers the courts of appeals to review decisions by the Board of Immigration Appeals, 8 U.S.C. § 1105a, states that such review is to be governed by 28 U.S.C. § 2347, subsection (c) of which empowers the court of appeals in appropriate cases to direct the agency to consider newly discovered evidence. That might seem the end of the matter but the government argues surprisingly that we ought to disregard section 2347(c) because it is inconsistent with the provision in the Immigration and Nationality Act that the court of appeals shall base its decision "solely upon the administrative record upon which the deportation order is based." 8 U.S.C. § 1105a(a)(4). There is no inconsistency. True, we are not to take evidence and base our decision on some mixture of that evidence with the evidence that was before the Board. But if the administrative record is inadequate because the Board has failed without justification to consider newly discovered evidence, we can remand for the creation of an adequate record. Bernal-Garcia v. INS, 852 F.2d 144, 147 (5th Cir.1988); Becerra-Jiminez v. INS, 829 F.2d 996, 1001 (10th Cir.1987), and cases cited there.

The Tenth Circuit in Becerra-Jiminez suggested that the Ninth Circuit had taken the contrary view. We doubt that. It held only that it wouldn't order the Board to reopen a deportation hearing on the basis of newly discovered evidence first tendered to the court; the applicant must first petition the agency to reopen the case. Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1213-14 (9th Cir.1983); Patel v. INS, 741 F.2d 1134, 1137 n. 2 (9th Cir.1984); Roque-Carranza v. INS, 778 F.2d 1373 (9th Cir.1985). Deportees must not be encouraged to play a delay game. It is different when (as in this case) the Board itself has prevented the applicant from placing the evidence before it. If the Board has acted improperly the applicant is entitled to judicial relief--and not just to the court's telling him that he can ask the Board to reopen the case, which he could do anyway. That would be no relief at all.

It is not as if section 1105a(a)(4) (not cited, incidentally, in the Ninth Circuit cases) stated some esoteric principle limited to immigration appeals, so that the government's view if accepted would have no reverberations in other areas of law. The general rule, applicable across the board to judicial review of administrative action and merely codified for immigration appeals in section 1105a(a)(4), is that the court may not go outside the administrative record, Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985)--and for that very reason the court must remand the case if the record is inadequate, rather than try to remedy the inadequacy directly by taking evidence. Id. at 744, 105 S.Ct. at 1607. If the government's view were accepted, section 2347(c) would be nullified in all agency cases, not just in immigration cases, because in all cases it could be argued that since the reviewing court must limit itself to the administrative record it cannot consider newly discovered evidence even to the extent of requiring the Board to consider it.

So we reject the government's first argument and consider now whether Osaghae was justified in failing to tender the newly discovered evidence to the Board, and if so whether the evidence was material. (These are the criteria in section 2347(c).) There is little doubt about either point. Osaghae, who had been admitted to the United States on a student visa in 1975, was arrested by the Immigration and Naturalization Service in June 1988 for having overstayed his welcome. He has been in custody ever since. While in custody Osaghae wrote to both Amnesty International and a Nigerian human rights group for published materials that he might use to bolster his contention that he would face persecution if deported to Nigeria. Shortly after he wrote these letters, the INS for unknown reasons began shuttling Osaghae among a series of jails. When the organizations to which he had written replied by mailing him the materials he had requested, he was no longer in the jail from which he had written and instead of forwarding his mail the jail marked it "Return to Sender." Osaghae made additional efforts to obtain the materials but all to no avail despite efforts by the organizations themselves to find him. The materials did not catch up with him until a month after the Board of Immigration Appeals rendered the decision that is under review. In these circumstances Osaghae can hardly be faulted for having failed to place the materials before the Board in timely fashion.

Are they material? Osaghae's history becomes pertinent here. Both he and his father were active in the Biafran independence movement, and both were arrested, and imprisoned for several months, in 1965, before the Biafran civil war, and again in 1973, after the war ended (it...

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