Bosede v. Mukasey

• Citation: 512 F.3d 946
• Decision Date: 14 January 2008
• Docket Number: No. 06-1625.,06-1625.
• Parties: Stephen BOSEDE, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

512 F.3d 946

Stephen BOSEDE, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 06-1625.

United States Court of Appeals, Seventh Circuit.

Argued February 12, 2007.

Decided January 14, 2008.

Michael S. Shapiro, Michael P. Tomlinson (argued), Foley & Lardner, Chicago, IL, for Petitioner.

Stephen J. Flynn, Melissa Neiman-Kelting (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before KANNE, ROVNER, and SYKES, Circuit Judges.

ROVNER, Circuit Judge.

Stephen Bosede, a Nigerian citizen who has lived in the United States for 27 years, was ordered removed after he was convicted twice for possession of small amounts of cocaine and once for retail theft. In his petition for review, he principally argues that the Immigration Judge (IJ) erroneously concluded that his two drug offenses are "particularly serious crimes" that make him statutorily ineligible for withholding of removal, and that the IJ violated his right to due process by rejecting his application for withholding of removal relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). We grant his petition for review and remand to the Board of Immigration Appeals (BIA).

Bosede came to the United States from his native Nigeria in 1980 and became a permanent resident in 1982. He is married to a U.S. citizen and has two children. In 1997 he was diagnosed with HIV, and he now follows a strict treatment regimen. He is an active member of the community—he holds a job, stays involved in his church, performs volunteer work, and attends college classes. But he also has a criminal record. In 1993 he was convicted of possessing 0.1 gram of cocaine and was sentenced to two years in prison. See 720 ILCS 570/402(c). In 1995 he again was convicted of possessing cocaine, this time 0.4 gram, and was sentenced to a one-year term of imprisonment. See id. And in 2000 he received a one-year sentence after he was convicted of retail theft for drinking liquor in a grocery store without first stopping at the cash register to pay for it. See 720 ILCS 5/16A-3(a). After the third conviction the Immigration and Naturalization Service, now the Department of Homeland Security, charged him with removability as an alien convicted of a drug offense and an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii), (B)(i). Bosede then applied for asylum, withholding of removal, and protection under the CAT claiming he would be persecuted on the basis of his religion—he is a Christian— and his HIV status. But the BIA ruled against him and ordered him removed, and he petitioned this court for review.

The first time this case was before us, we dismissed Bosede's petition because we lacked jurisdiction to review his final order of removal. Bosede v. Ashcroft, 309 F.3d 441 (7th Cir.2002). But we expressed concerns about perceived flaws in the proceedings and remarked that the IJ apparently had decided "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." Id. at 443. We encouraged the government to agree to reopen the proceedings, id. at 447, which it did. The BIA granted Bosede's and the government's joint motion to reopen and remanded the case to the IJ.

In the second round of proceedings before the IJ in 2003, Bosede submitted an affidavit reiterating that he fears persecution in Nigeria because he is a Christian and is infected with HIV. He maintained that he visited Nigeria in 1999 and was detained by authorities at the airport when they discovered he is HIV-positive. They released him, he explained, only when he agreed to stay in a hotel they specified. Bosede, though, feared the authorities would harm him, so he escaped from the hotel. He was able to leave Nigeria, he said, only by paying a bribe to get through security undetected.

In this second round Bosede further asserted that if returned to Nigeria he will be imprisoned under a law commonly known as Decree 33, which mandates a five-year sentence for "any Nigerian citizen found guilty in any foreign country of an offense involving narcotic drugs or psychotropic substances and who thereby brings the name of Nigeria into disrepute." National Drug Law Enforcement Agency (Amendment) Decree No. 33 (1990) (Nigeria). The IJ requested and received evidence from the State Department's Bureau of Democracy, Human Rights and Labor, which advised that Decree 33 is still in force.

Bosede also introduced evidence that, in a Nigerian prison, he would face extreme hardship because of his HIV status. He submitted news reports showing that the death rate of HIV-infected prisoners in Nigeria is high because they do not have access to doctors and medication, and because the poor nutrition that Nigerian prisoners suffer eliminates or greatly reduces the effectiveness of any medication they might receive. The State Department's submission supported this contention, noting that at least one HIV-positive prisoner in Nigeria had died because of insufficient medical treatment. Bosede also, submitted reports from the State Department, Human Rights Watch, and Amnesty International, all of which noted that prisoners in Nigeria are severely mistreated and that the responsible Nigerian officials operate with impunity. See U.S. Department of State, Report on Human Rights Practices: Nigeria 2, 5-6 (2005); Human Rights Watch, Obasanjo Confirms Torture, Killing by Police (Aug. 22, 2005), http://hrw.org/english/docs/2005/08/22/nigeri11650.htm; Amnesty International, Nigerian Prisoners Die in `Inhuman' Conditions (Mar.-Apr.1998). In short, Bosede argued that a return to Nigeria was akin to a death sentence.

The IJ again rejected Bosede's application for withholding of removal and CAT protection (by this time Bosede had abandoned his asylum claim). The IJ first concluded that Bosede is statutorily ineligible for withholding of removal because his two drug offenses are "particularly serious crimes." If an alien has committed a particularly serious crime, the alien is ineligible for withholding of removal. See 8 U.S.C. § 1231(b)(3)(B). The Attorney General has the discretion to determine whether an alien has committed a particularly serious crime. See id. The IJ noted that the Attorney General has determined that aggravated felonies involving drug trafficking are presumed to be particularly serious crimes. See In re Y-L, 23 I. & N. Dec. 270, 274 (BIA 2002). He observed that the Immigration and Nationality Act defines "drug trafficking crime," 8 U.S.C § 1101(a)(43)(B), by incorporating the definition in 18 U.S.C. § 924(c)(2), which is "any felony punishable under the Controlled Substances Act." The IJ reasoned that because both of Bosede's convictions for cocaine possession are felonies under Illinois law, see 720 ILCS 570/402(c), and because they involved conduct punishable under the Controlled Substances Act, see 21 U.S.C. § 844(a), they meet this definition of drug trafficking. Even though the IJ noted that each conviction involved less than one gram of cocaine, he concluded without elaboration that Bosede had not "presented the type of rebuttal evidence necessary to offset the conclusion that he has been convicted of a particularly serious crime."

The IJ went on to deny Bosede's CAT claim and also explained that he would have denied Bosede's application for withholding of removal even if Bosede was not statutorily barred from bringing it. He rejected Bosede's argument that, if returned to Nigeria, he would be imprisoned because of his drug possession in the United States and would suffer torture in prison as an HIV-positive inmate. The IJ recognized that Nigerian prisons are "decrepit," that they often lack "healthcare and access to medication," and that an "HIV positive prisoner could face a possibility of death due to a lack of medication." Yet the IJ deemed none of this relevant on the theory that, although Decree 33 is still in force, Bosede had "not shown that he will be necessarily detained on his return to Nigeria." The IJ acknowledged that because of Decree 33 "a drug offender should worry about his survival," but he determined that Bosede had not proved he would "automatically be detained." Further, the IJ remarked that since Bosede had once paid a bribe to escape Nigeria after being detained, he might have "other options available to avoid detention" even if he is arrested when returned. In a short order the BIA affirmed the IJ's ruling, so we examine the IJ's written opinion as supplemented by the BIA. See Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir. 2006).

Bosede first argues that the IJ erred as a matter of law in characterizing each of his cocaine possessions as a "drug trafficking crime" under 18 U.S.C. § 924(c)(2), and consequently, as a particularly serious crime under 8 U.S.C. § 1231(b)(3)(B) and In re Y-L, 23 I. & N. Dec. at 274. The government counters that 8 U.S.C. § 1252(a)(2)(C) bars our jurisdiction because Bosede is an aggravated felon,¹ The government is correct that for an alien with an aggravated felony conviction, § 1252(a)(2)(C) "blocks judicial review of the removal order whether or not the agency has made a discretionary decision," such as whether the crime is "particularly serious." Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir.2006). Bosede has conceded that he is an aggravated felon, and ordinarily that would be the end of the story—we would be unable to review his removal order. But we do retain jurisdiction to consider constitutional claims and questions of law, see 8 U.S.C. § 1252(a)(2)(D); Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir.2006); Ramos v. Gonzales, 414 F.3d 800, 802 (7th Cir.2005), including due-process claims, see Petrov, 464 F.3d at 802-03 (holding that court lacked jurisdiction to consider aggravated felon's...