Bosede v. Ashcroft

• Citation: 309 F.3d 441
• Decision Date: 29 October 2002
• Docket Number: No. 01-3188.,01-3188.
• Parties: Stephen BOSEDE, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

309 F.3d 441

Stephen BOSEDE, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 01-3188.

United States Court of Appeals, Seventh Circuit.

Argued April 15, 2002.

Decided October 29, 2002.

COPYRIGHT MATERIAL OMITTED

Therese C. King (argued), Foley & Lardner, Chicago, IL, for Petitioner.

George P. Katsivalis, INS, Chicago, IL, Norah Ascoli Schwarz (argued), DOJ, Civ. Div., Immigration Lit., Washington, DC, for Respondent.

Before ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Stephen Bosede, a Nigerian citizen, is a permanent resident of the United States. Afflicted with drug addiction and now HIV-positive, Bosede unfortunately accumulated three felony convictions. After the third one, the INS initiated removal proceedings against him. An Immigration Judge (IJ) held a hearing and found that he was removable and ineligible for asylum, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985). Bosede appealed this decision to the Board of Immigration Appeals (BIA), arguing that he was not removable and alternatively that he was eligible for relief from removal through either withholding of removal or by the application of CAT. The BIA affirmed the IJ's decision and subsequently denied Bosede's motion to reopen the decision. On appeal to this court, Bosede again argues that he is eligible for withholding of removal. He also claims that the hearing he was given failed to satisfy the due process standards of the Fifth Amendment.

We find many aspects of the course of proceedings so far quite disturbing. They purport to decide Bosede's fate based on a fundamental mistake of fact, brought about through sloppy legal representation and a general failure to follow up on information that would have brought the mistake to light. Notwithstanding these serious flaws, there is little this court can do under the system of review Congress has established for these cases. For the reasons we explain in this opinion, Bosede's petition must be dismissed for want of jurisdiction, because he has not exhausted his administrative remedies.

I

Bosede has lived in the United States since 1980; since 1982, he has been a lawful permanent resident. Now 49 years old, Bosede is currently employed as a cabdriver. He lives with his wife and two children, who are all United States citizens. In 1997, Bosede and his wife were both diagnosed as HIV-positive (i.e., infected with the virus that causes AIDS), which requires a strict regimen of prescription drugs. Because of her illness, his wife is wheelchair-bound and unable to work.

The INS charged that Bosede was removable based upon three felony convictions. On December 13, 1993, Bosede was convicted of a controlled substance offense; the INS thought it was for possession with intent to deliver, although as we shall see, it may have been only for simple possession. On April 13, 1995, he was convicted of possession of a controlled substance. Finally, on March 1, 2000, he was convicted of retail theft. Bosede retained attorney Michael Cohen to represent him at the immigration proceedings. By all accounts, Cohen's representation was at best unhelpful. He failed to appear at multiple hearings without any legitimate excuse. The IJ even chastised Cohen for not appreciating the seriousness of the proceedings and "oversimplifying the issues."

Despite his poor representation, Bosede tried to challenge the 1993 and 2000 convictions before the IJ. He argued that the 2000 conviction was not an aggravated felony because he did not serve a year in prison and because the facts underlying the offense (he had been caught drinking a bottle of liquor in a store and allegedly did not intend to pay for it) showed that it was minor. Bosede also testified that the 1993 conviction, which the INS asserted was for possession with intent to deliver, was really only a conviction for possession. The INS based its information on a "cover sheet" that reported the charge as possession with intent to deliver. But the document contained no record of either the indictment or the ultimate finding of guilt. Recognizing a potential conflict between Bosede's testimony and the INS evidence, the IJ stated:

I would think it might be incumbent upon the Service, now that the respondent has denied that this cover sheet is correct under oath, that they request investigations, go back to 26 in California and obtain the indictment and check the docket sheet to see if there was an amendment. I'm not requiring you do that. But you're confronted with testimonial evidence from the respondent saying he pled it down. And then I'll make a decision.

The IJ then added, "I'm not positive that [the cover sheet is] clear, convincing and unequivocal in light of the respondent's denial under oath." Despite this warning, neither the INS nor Bosede introduced any additional evidence regarding the 1993 offense. The IJ subsequently found that Bosede was removable as an aggravated felon and went on to consider his requested relief from removal.

Bosede offered three reasons why he should not be removed from the United States: first, he was eligible for asylum, second, he was eligible for withholding of removal, and finally, he was entitled to relief under the CAT. In support of the first and third theories, Bosede claimed that he would be persecuted as a Christian if he was sent back to Nigeria. He pointed out that his parents were killed by Muslim militants in 1969. Despite his many attempts over the years, Bosede was never able to recover the property stolen from his parents. Bosede also claimed that he would be detained and imprisoned upon returning to Nigeria, which, given his medical condition, would amount to a de facto death sentence (because of both lack of access to the necessary medications and predictable violence from prisoners directed against HIV-positive individuals). He testified that he fears discrimination and possible torture if he returns to Nigeria as an HIV-positive man. Although Bosede has returned to Nigeria several times since he has been a resident of the United States, this fear was based in large part on his 1999 trip to Nigeria.

In 1999, Bosede traveled to Nigeria to visit his grandparents' graves with his wife. On that trip, he and his wife brought with them a large amount of medication (which, they stated, was not available in Africa). Suspicious airport officials detained them for two hours, until Bosede alerted the officials to their HIV condition. They were released after they agreed to stay in a particular hotel. Although they initially went to the recommended hotel, they later left it, fearing that they would be killed because of their HIV status. After approximately a month's stay, they left Nigeria quietly through a neighboring country. Bosede testified that he believed that if he was sent back, he would be detained or imprisoned and certainly would be unable to find work because of his HIV status. He presented background information on Nigerian prisons and the HIV epidemic. Finally, he submitted an e-mail that indicated that the Nigerian government had a policy of detaining persons with AIDS to curb the spread of the disease. To counter this testimony, the INS introduced evidence that the Nigerian government has taken positive steps to address the HIV problem in Nigeria, where the disease currently affects five percent of the population.

The IJ was not impressed by Bosede's evidence and again chastised the attorney. "Mr. Cohen, you can't win cases without evidence. And all the cases I've read concerning aliens granted asylum based upon HIV-positive or AIDS, there were tremendous amounts of background evidence and reports submitted by the attorneys for the aliens, all kinds of documentary evidence." Cohen responded that such documentary evidence was merely "double and triple hearsay" and later stated that the government's documents were "quadruple hearsay."

In the end, the IJ concluded that Bosede was not entitled to relief from removal. He found that Bosede was statutorily barred from asylum because his 1993 conviction (understood to be the trafficking offense, not the possession offense) was an aggravated felony. The judge also found Bosede ineligible for withholding of removal under 8 U.S.C. § 1231, again relying on the contested 1993 conviction, which he concluded was per se a particularly serious crime. Finally, he ruled that the evidence did not establish that Bosede would be persecuted or tortured upon his return to Nigeria, which meant that he was ineligible for CAT relief.

Bosede filed a pro se appeal to the BIA. The BIA held that the 1993 conviction was not a per se bar to withholding of removal, but (accepting the INS's evidence that it was a distribution offense) it agreed that the conviction was for a particularly serious crime, considering the seriousness and danger of drug trafficking crimes. It affirmed the IJ's decision that Bosede was not entitled to CAT relief because it agreed that Bosede had failed to meet his burden of showing a likelihood of torture in Nigeria. The BIA accordingly dismissed the appeal. It later denied a motion that Bosede filed to reopen his removal proceedings. Bosede now appeals the BIA order dismissing the appeal to this court.

II

Bosede's claim is governed by the rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Before proceeding to the merits we address the INS's contention that we do not have jurisdiction to hear Bosede's appeal because Bosede is removable as a criminal alien. 8 U.S.C. § 1252(a)(2)(C) ("[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense...."). Although the INS has...