Apouviepseakoda v. Gonzales

Decision Date02 February 2007
Docket NumberNo. 05-3752.,05-3752.
Citation475 F.3d 881
PartiesAfi M. APOUVIEPSEAKODA, Petitioner, v. Alberto R. GONZALES, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Saadia Siddique (argued), Kriezelman & Associates, Chicago, IL, for Petitioner.

Winfield D. Ong (argued), Office of the United States Attorney, Indianapolis, IN, Karen Lundgren, Department of Homeland Security, Chicago, IL, for Respondent.

Before EASTERBROOK, Chief Judge, and POSNER and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Afi Marie Apouviepseakoda is a native and citizen of Togo who came to the United States in 2002 without a valid visa. She was paroled into the country while awaiting a final determination on her applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). All of these were denied by an immigration judge (IJ) who ordered her removal, a decision subsequently affirmed by the Board of Immigration Appeals (BIA). She now petitions for our review, challenging both the IJ's finding that she was not credible and the BIA's conclusion that the IJ's handling of her hearing did not violate due process.

Apouviepseakoda says that her troubles began as a result of her husband's business relations with the mayor of Lomé, Togo's capital city. The mayor is a member of the Union des Forces du Changement, or UFC, an opposition political party to which Apouviepseakoda also belongs. Although her husband is not a member, Apouviepseakoda testified at her hearing that he had business contracts with the mayor to handle garbage collection for the city. She also vaguely explained that he had "financed" and "given money" to the mayor; it is unclear whether she was referring to something beyond his business obligations.

In any case, the mayor was jailed, and at some point the government became interested in Apouviepseakoda's husband. One day, a warning was received from a relative that government forces were looking for the husband, and he immediately left the country. Apouviepseakoda remained behind with the children and returned to their home.

She says that on the following day government troops came to her home, said nothing to her, and tore the place upside down looking for her husband before carrying away his picture and personal documents. They asked her about his whereabouts, and when she told them that she did not know where he was she says they beat her with their fists and batons for more than 30 minutes. When they left they told her to call if her husband turned up. She says that she immediately went to a Lom é hospital for treatment, where she remained for 10 days.

Upon her discharge, Apouviepseakoda and her children stayed with her mother in another part of the country for a few days before sneaking into Ghana and eventually coming to the United States. Because she had already obtained passports and travel visas to the U.S.—she says for a vacation that they ended up not taking—she and her children had the necessary documents to travel to the United States, which they did on October 10, 2001.1

But Apouviepseakoda did not apply for asylum in October of 2001. Instead, after 6 months, she left her children and returned to Togo in an effort, she says, to secure money and track down her husband, whom she believed to be in Ghana. She was assisted into the country by a friend, a lieutenant in the armed forces. She also testified that after her return to Togo, a warrant for her arrest was issued. She again stayed with her mother. Six days after she arrived, another warrant was issued, followed 3 days later by a summons requiring her to appear before the police. Notwithstanding these obstacles, Apouviepseakoda testified at her hearing that she returned to the Lom é hospital to see a gynecologist. Ultimately, she gathered some money and, finding no information on her husband, again obtained the assistance of her friend the lieutenant and left the country to return to the United States. This time, after landing in Chicago, she requested asylum and other relief. Pending the resolution of that application, she was paroled into the country.

After a hearing, the IJ issued a written decision finding that Apouviepseakoda's testimony was not credible and that her offered corroborating documentary evidence only raised additional questions. He found that she failed to establish eligibility for asylum, much less withholding of removal and CAT relief, and he ordered her removed to Togo. On appeal, the BIA adopted and affirmed the IJ's decision as to the merits and rejected Apouviepseakoda's argument that the IJ's handling of her hearing constituted a denial of due process.

In this appeal, Apouviepseakoda repeats the arguments she made to the BIA. She first argues that the IJ's adverse credibility finding is not supported by substantial evidence and is based instead upon conclusions that bear no reference to the record. Second, she contends that the IJ violated her due process rights because he improperly took over her direct examination and began asking her questions to discredit her testimony. She also alleges that he wrongly stopped the hearing and should not have relied on an offer of proof from her counsel rather than listen to the live testimony of two witnesses who were present.

We turn first to her second argument, because if Apouviepseakoda was prejudiced by an unfair hearing we must grant her petition and remand for further proceedings. The BIA's determination that the immigration judge did not violate due process is a conclusion of law, Podio v. INS, 153 F.3d 506, 509 (7th Cir.1998), which we therefore review de novo. See Borca v. INS, 77 F.3d 210, 214 (7th Cir. 1996).

The Fifth Amendment guarantees due process in removal proceedings, Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439 123 L.Ed.2d 1 (1993). But before we get to the Constitution, there are statutory, 8 U.S.C. § 1229a(b)(4), and regulatory, 8 C.F.R. § 1240.1(c), provisions that govern the conduct of those proceedings. Apouviepseakoda has not challenged the constitutionality of these, and indeed she was wise not to, for we have already explained that "[a]ny proceeding that meets these requirements satisfies the Constitution as well." Rehman v. Gonzales, 441 F.3d 506, 508 (7th Cir.2006); see also Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538 (7th Cir.2005). In other words, Apouviepseakoda, like many before her, has made the mistake of employing "flabby constitutional arguments to displace more focused contentions," Rehman, 441 F.3d at 508-09; see also Boyanivskyy v. Gonzales, 450 F.3d 286, 292 (7th Cir.2006); Pronsivakulchai v. Gonzales, 461 F.3d 903, 907 (7th Cir.2006), and is really arguing that the IJ's hearing violated these statutory and regulatory provisions. We shall treat her argument as though it were properly made in this fashion.

Under those provisions, a lawful removal proceeding is one in which "[t]he immigration judge shall receive and consider material and relevant evidence, rule upon objections, and otherwise regulate the course of the hearing," 8 C.F.R. § 1240.1(c), and "the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government. . . .", 8 U.S.C. § 1229a(b)(4)(B). In order to succeed in challenging the legality of such a hearing, the alien must show not only that her "reasonable opportunity" was denied, but also that she was prejudiced. Rehman, 441 F.3d at 509.

Apouviepseakoda argues that she was denied the reasonable opportunity to be heard because the IJ "demonstrated impatience, hostility, and a predisposition to deny" her claims, took over her direct examination so as to limit her time to testify on her own behalf, and improperly asked for an offer of proof from her counsel rather than make additional time for the testimony of two witnesses.

Congress has specifically authorized immigration judges to operate in the dual role of decisionmaker and prosecutor, see 8 U.S.C. § 1229a(b)(1) (granting the immigration judge the authority to "administer oaths, receive evidence, interrogate, examine, and cross-examine the alien and any witnesses"). The IJ has "broad discretion to control the manner of interrogation in order to ascertain the truth," Iliev v. INS, 127 F.3d 638, 643 (7th Cir. 1997), but "that discretion is bounded by the applicant's right to receive a fair hearing." Podio, 153 F.3d at 509; cf. LeTourneur v. INS, 538 F.2d 1368, 1370 (9th Cir.1976) ("That this dual role of the [immigration judge] is fair and proper under established standards of due process is clear.").

"We have previously given impatient and inappropriate judges a pass on the theory that `[a]n immigration judge is permitted to interrogate, examine, and cross-examine the alien and any witnesses,'" Giday v. Gonzales, 434 F.3d 543, 549 (7th Cir.2006) (citation omitted), because "although one hopes that an immigration judge will perform these tasks with patience and decorum befitting a person privileged with this position, such failures to do so do not in and of themselves create due process violations." Diallo v. Ashcroft, 381 F.3d 687, 701 (7th Cir.2004).

Although we have never held that such circumstances alone establish the denial of a reasonable opportunity to be heard, the closest cases are those in which "the questioning becomes so aggressive that it frazzles applicants and nit-picks inconsistencies" until a petitioner "became so distraught that the immigration judge was forced to pause the proceedings to give `the [non-citizen] a chance to collect herself,'" Giday, 434 F.3d at 549; see also Rodriguez Galicia v. Gonzales, 422 F.3d 529, 539 (7th Cir.2005). Instead, we have been more likely to find a denial where an IJ bars "complete chunks of oral testimony that would support the applicant's claims," Kerciku v. INS, 314 F.3d 913, 918 (7th Cir.2002)...

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