Dugboe v. Holder, 10–3010.

• Decision Date: 06 July 2011
• Docket Number: No. 10–3010.,10–3010.
• Citation: 644 F.3d 462
• Parties: Uyi DUGBOE, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

644 F.3d 462

Uyi DUGBOE, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–3010.

United States Court of Appeals, Sixth Circuit.

July 6, 2011.

ON BRIEF: Matthew L. Benson, Bartlett & Weigle Co., L.P.A., Cincinnati, Ohio, for Petitioner. Michael C. Heyse, United States Department of Justice, Washington, D.C., for Respondent.Before: COLE, CLAY, and GILMAN, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Uyi Dugboe faces removal to Nigeria, his home country. He challenges the decisions of the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) to deny him withholding of removal under both the Immigration and Nationality Act (INA) and the United Nation's Convention Against Torture (CAT). He also contests the denial of his motion to remand (which would have allowed him to seek the adjustment of his status based on his marriage to a U.S. citizen) and the denial of his motion to transfer the venue of his removal proceedings from Detroit to his hometown of Chicago. For the reasons set forth below, we DENY Dugboe's petition for review.

I. BACKGROUND

Dugboe is a native and citizen of Nigeria who entered the United States illegally in 1992. He married a U.S. citizen in 1995, and the couple has a daughter who was born in 1996. In the same year that his daughter was born, Dugboe applied to adjust his status to that of a lawful permanent resident.

On May 11, 1997, Dugboe attempted to enter Canada near Port Huron, Michigan by falsely claiming to be Frank Nelson, Jr., a U.S. citizen, and by presenting documents purporting to be Nelson's birth certificate, Illinois driver's license, and Illinois identification card. Canadian authorities refused him entry and escorted him back to U.S. immigration officials at Port Huron. Immigration Supervisor Fochtman and Senior Immigration Inspector Cozza questioned Dugboe, who repeated his claim that he was Nelson and that he was a U.S. citizen.

Several discrepancies, however, strongly suggested to these officials that Dugboe was not who he claimed to be. Dugboe, for example, could not correctly name the parents on Nelson's birth certificate, i.e., Dugboe's alleged parents. He also incorrectly identified where his alleged parents were born. Although Dugboe further claimed that he had no prior convictions, an FBI database search revealed a 15–page criminal record for Nelson. Dugboe denied the crimes at first, but then admitted to committing some of them. Yet Dugboe's fingerprints did not match those on file for Nelson.

Inspector Cozza searched Dugboe's belongings and found an Amtrak ticket issued in Dugboe's name, which Dugboe denied was his. When Cozza ran the name Dugboe through the United States Customs and Immigration Service's database, he learned that Dugboe was a known alien. Cozza then advised Dugboe of the consequences of falsely claiming U.S. citizenship, but Dugboe continued to insist that he was a U.S. citizen. After being detained for several hours while immigration officials attempted to obtain his picture from immigration records, Dugboe finally admitted in a sworn statement that his real name was Dugboe, that he was a native and citizen of Nigeria, that he entered the United States in 1992 without being inspected, that he had purchased the birth certificate and Social Security card of Nelson for $100, that he had falsely claimed to immigration officials at Port Huron that he was a U.S. citizen, and that he knew that falsely claiming U.S. citizenship was illegal.

A search of the FBI database using Dugboe's name revealed several theft arrests in Atlanta under the name Osa Michael, a black male using the name Dugboe as an alias. Dugboe denied both having been arrested in Atlanta and having used the name Michael. But Dugboe's fingerprints matched those for Michael on file with the FBI.

In May 1997, the Immigration and Naturalization Service (INS) personally served Dugboe with a Notice to Appear (NTA), charging him with being removable as an alien who (1) “entered at a time/place/manner other than as designated by the Attorney General,” in violation of 8 U.S.C. § 1182(a)(6)(A)(i), and (2) falsely claimed to be a U.S. citizen in order to conceal his identity, nationality, and immigration status, in violation of 8 U.S.C. § 1182(a)(6)(C)(ii). Dugboe was served with another NTA by mail in October 1998 that contained additional allegations, including the charge that Dugboe falsely claimed to be a U.S. citizen “for the purpose of remaining in the United States.” This NTA was filed with the immigration court in Detroit. (The enforcement functions of the INS have since been transferred to the Department of Homeland Security by § 441 of the Homeland Security Act of 2002, Pub.L. No. 107–296, 116 Stat. 2135. For simplicity, we will continue to use the term INS.)

In February 1999, Dugboe alternatively moved to terminate his proceedings, to allow a telephonic hearing, or to change the venue to his hometown of Chicago. He noted, among other things, that the Chicago immigration office had jurisdiction over his pending application to adjust his status, and that appearing at a hearing in Detroit would be a great hardship due to the travel required. The INS opposed the motion for three primary reasons: (1) Dugboe is ineligible to adjust his status because the INA deems him “inadmissible” due to his false claim of U.S. citizenship; (2) Dugboe attempted to enter, and was apprehended in, the Detroit area; and (3) Dugboe had not conceded the charges against him, which would require the INS to call Port Huron immigration officials to prove the charges against Dugboe. All of Dugboe's motions were denied for the reasons given by the INS.

Dugboe appeared before the immigration court in Detroit in May 1999, where he denied all of the factual allegations and removability charges, indicated his intention to seek asylum and withholding of removal under the INA and the CAT, and renewed his motions to terminate the proceedings or change the venue to Chicago. The IJ offered to transfer the venue to Chicago if Dugboe would admit that he falsely claimed to be a U.S. citizen, but Dugboe declined. Dugboe countered by suggesting that any government witnesses could testify by telephone, an offer that the IJ rejected.

In August 1999, Dugboe again appeared before the immigration court in Detroit and filed his application for asylum and withholding of removal (asylum application). The IJ denied the asylum application because it was not timely filed. Dugboe then orally renewed his venue-transfer motion, but the IJ declined to consider the issue absent a written motion.

The immigration court held a merits hearing in October 2003 on Dugboe's removal proceedings. Inspector Cozza was called by the INS to discuss Dugboe's attempt to reenter the United States on May 11, 1997 by falsely claiming to be a U.S. citizen. Cozza's testimony was consistent with the facts recounted above about those events. Of particular note, Cozza explained that the interview transcript of Dugboe's sworn statement contained Dugboe's initials after each question and answer, which indicated that Dugboe agreed with the answers given.

Dugboe testified next. He initially claimed to never have used another name or alias, but then refused to answer whether he had ever used the name Frank Nelson, Jr. The IJ informed Dugboe that although he could refuse to answer a question, the IJ could draw an adverse inference against him based on that refusal. Dugboe still refused to answer whether he attempted on May 11, 1997 to enter Canada from Port Huron using Nelson's name and documents. Although Dugboe claimed that he could not remember when he spoke to U.S. immigration officials at Port Huron, he did not deny that he had spoken to them. Dugboe later refused to answer whether he remembered being interviewed by an immigration official. Simultaneously, he claimed that he could not remember anything about the interview, including the answers that had his initials next to them. When he was shown his signature at the bottom of the sworn statement, he did not deny that it was his signature, but instead claimed that he did not remember signing the document.

Dugboe further claimed that he could not remember whether he bought Nelson's birth certificate, but later changed his answer to a refusal to respond. Nor could he recall being issued an Illinois driver's license in the name of Frank Nelson, Jr., although he later admitted that his photo appeared on an Illinois license issued to Nelson. Dugboe did not remember ever possessing this license. Similarly, he admitted that his photo appeared on an Illinois identification card in Nelson's name, but he did not remember applying for the card.

Dugboe's testimony was also inconsistent with his asylum application and other filed documents. He denied ever leaving the United States, even though his asylum application indicated that he last left the United States in 1997 to visit his father, who was ill in Nigeria. Dugboe then refused to answer whether his asylum application was wrong, but still claimed that he had never left the United States.

The IJ found that all of the facts and charges alleged by the government had been demonstrated by clear and convincing evidence. Accordingly, the IJ found that Dugboe was removable. The IJ then turned to Dugboe's applications for relief. Because Dugboe had testified contrary to several statements in his asylum application, the IJ gave Dugboe time to review and amend the application before signing it under oath. Dugboe reviewed the application with his attorney for 28 minutes, made some changes, and then signed it.

Concerning the merits of his claims for relief, Dugboe testified that he left Nigeria in 1992 because he and his family are Christians, that there were problems between Christians and Muslims, and that one of his brothers, who he initially called Harry, became involved in these problems. Harry allegedly took part in a...