Enwonwu v. Gonzales

• Decision Date: 13 February 2006
• Docket Number: No. 05-2053.,05-2053.
• Citation: 438 F.3d 22
• Parties: Frank Igwebuike ENWONWU, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

438 F.3d 22

Frank Igwebuike ENWONWU, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-2053.

United States Court of Appeals, First Circuit.

Heard January 11, 2006.

Decided February 13, 2006.

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Robert B. Carmel-Montes and Morton Sklar of the World Organization for Human Rights USA, with whom The Carmel Law Group was on brief, for petitioner.

Andrew C. MacLachlan, Office of Immigration Litigation, Civil Division, United States Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, and David V. Bernal, Assistant Director, were on brief, for respondent.

Before LYNCH and HOWARD, Circuit Judges, and CAMPBELL, Senior Circuit Judge.

LYNCH, Circuit Judge.

Frank Igwebuike Enwonwu is a Nigerian who entered the United States in 1986 as a heroin drug courier, on behalf, he said, of members of the Nigerian military. He was convicted the same year of federal drug felony crimes, which made him an aggravated felon for immigration law purposes. See 8 U.S.C. § 1101(a)(43)(B). He agreed to cooperate with the government and avoided imprisonment in exchange for being an informant.

Some years later, in 1997, the INS served on him a Notice to Appear to show cause why he should not be deported. As an aggravated felon he was eligible for neither asylum nor withholding of removal; in 1999, however, he became eligible and applied for relief under the Convention Against Torture (CAT). The Immigration Judge (IJ) who considered his CAT claim ruled that he had met his burden of showing he would be tortured if returned to Nigeria. The Board of Immigration Appeals (BIA) disagreed, reversed the IJ, and later denied Enwonwu's motion to reopen. Enwonwu did not petition this court for review of those two decisions.

Faced with removal, Enwonwu brought a habeas action in federal district court in Boston on the basis, inter alia, that removing him from the United States would violate substantive due process under the state-created danger theory because he is likely to be tortured on his return to Nigeria. The district court, which had habeas jurisdiction at the time pursuant to 28 U.S.C. § 2241, held evidentiary hearings and prepared findings of fact. On May 11, 2005, that court lost jurisdiction under the terms of the new REAL ID Act, Pub.L. No. 109-13, § 106, 119 Stat. 302, 311 (2005) (codified as amended at 8 U.S.C. § 1252 note), and the case was transferred to this court. Nonetheless, the district court wrote an advisory opinion on what it was prepared to find, see generally Enwonwu v. Chertoff, 376 F.Supp.2d 42 (D.Mass.2005), including that Enwonwu should prevail on his state-created danger theory, id. at 74.

In this court Enwonwu continues to press three major issues and some minor ones. He again makes a habeas-type constitutional claim on the state-created danger substantive due process rights theory. He also argues that the REAL ID Act is unconstitutional under the Suspension Clause, U.S. Const. art. 1, § 9, cl. 2, and that as a result the case must be returned to the district court. Finally, he makes a classic petition for review challenge to the BIA's determination that he is not eligible for CAT relief and to its denial of his motion to reopen, a claim also made in the habeas petition. The Department of Homeland Security (DHS) concedes that this court has jurisdiction to review all of these issues.¹

This opinion, then, addresses three claims: (1) that Enwonwu may not be removed from this country because it would violate constitutional substantive due process rights; (2) that the REAL ID Act itself is unconstitutional, and (3) that the BIA decision reversing the IJ's determination that Enwonwu had met the burden for CAT protection must be vacated.

We hold as a matter of law, regardless of the facts in this case, that a non-citizen trying to avoid removal from the country states no substantive due process claim on a state-created danger theory. As a result, in this case there is no possible claim that the REAL ID Act violates the Suspension Clause. Further, the case does not fairly raise Enwonwu's other arguments as to the constitutionality or proper interpretation of the REAL ID Act and so we do not reach those issues. Finally, utilizing our normal standards on petition for review of the BIA's decision on CAT relief, we remand to the BIA for further consideration of the CAT issue.

I. Prior Administrative Proceedings

Enwonwu first appeared before an IJ pursuant to a June 6, 1997, Notice to Appear. The INS alleged Enwonwu's removability and his ineligibility for asylum or withholding of deportation, based on his 1986 conviction for importation of heroin in violation of 21 U.S.C. §§ 952, 960, and 963, and his five-year prison sentence.² The IJ agreed and ordered Enwonwu deported to Nigeria.

The BIA affirmed. On June 2, 1999, however, the BIA granted Enwonwu's motion to reopen proceedings on the ground that he had become eligible for relief under Article 3 of the newly applicable CAT.³ The BIA remanded the case to the IJ to provide Enwonwu an opportunity to apply for CAT protection.

On remand, the IJ held additional hearings and concluded on December 16, 1999, that Enwonwu had met his burden for deferral of removal under the CAT. The IJ found that Enwonwu had smuggled heroin from Nigeria into the United States, and that after he was apprehended, he "cooperate[d] with the Drug Enforcement Administration and provided names" of his co-conspirators. The IJ said he disbelieved Enwonwu's testimony that Enwonwu had told the DEA that "high level [Nigerian] military official[s]" were among his co-conspirators. Nonetheless, the IJ found that "the respondent was involved with others in Nigeria and there also remains the possibility that the people with whom he was involved were indeed connected to the military or the Government."

The IJ found that "the Nigerian prison system is a haven for human rights abuses and . . . prisoners within that system are routinely beaten and tortured." He also found that "it is the policy and the law in Nigeria that those who have been convicted of drug trafficking crimes outside of that country are subject to arrest, detention, and prosecution on account of those convictions." The IJ accepted the testimony of University of California at Berkeley Professor Michael J. Watts. Watts had testified that (1) Nigeria is a major heroin trafficking center, (2) members of the "Nigerian elite" with links to the Nigerian government and military had a hand in the drug trafficking in the country, and (3) Enwonwu would be "highly identifiable" upon his return to Nigeria because "many people who do return to that country after even 10 to 15 years are . . . arrested for grievances which the Government may have had against them which occurred a long time ago."

On the basis of this evidence, the IJ concluded that "it is more likely than not that the respondent would face torture if he were to be returned to Nigeria." The IJ reasoned that this was so because "either the Government would . . . arrest him because of his conviction in the United States and subject him to imprisonment and potential torture because of the law in that country, or because of the interrelationship of the drug traffickers, the military and the Government, that retribution would be still sought against him because of his cooperation with the Drug Enforcement Administration." The IJ thus identified two alternative reasons for his finding as to the likelihood of torture: one general, applicable to anyone convicted of drug crimes who is repatriated to Nigeria, and one specific to Enwonwu and his status as a cooperator and informant.

The DHS appealed, and on May 30, 2003, the BIA reversed the IJ's grant of CAT protection. It wrote:

The Immigration Judge granted relief largely based on the fact that the respondent, under Nigerian law, will likely be subject to arrest, detention and prosecution on account of his drug conviction in the United States. We have previously held that a Nigerian convicted of a drug offense in the United States failed to establish eligibility for deferral of removal because the evidence she presented regarding the enforcement of [Nigerian law] could not meet the burden of proof for CAT.

On the strength of this precedent, the BIA concluded "that the mere possibility of arrest and prosecution in Nigeria does not establish that the respondent in this instance would more likely than not be subject to torture by a public official or with the acquiescence of such an official." It vacated the IJ's decision and ordered Enwonwu removed from the United States.

Enwonwu did not petition for review of the BIA's order in this court. On October 13, 2004, more than a year after the BIA decision, Enwonwu filed a motion to reopen with the BIA. He stated that he had not been notified of the DHS' appeal to the BIA or even of the BIA's decision, and that he therefore had had no chance to oppose the DHS' position or to appeal the BIA's order. The BIA denied Enwonwu's motion as untimely filed. It denied his lack of notice argument, finding that a notice of the DHS' appeal had been mailed to Enwonwu's attorney of record and that Enwonwu, who was supposed to inform the government of any change of address, had failed to do so when he moved after the date of the October 1999 order which granted him CAT protection.

II. Prior Court Proceedings

On March 17, 2005, Enwonwu initiated habeas corpus proceedings in the district court. He argued (1) that his right to procedural due process was violated when the BIA issued its orders without providing him with sufficient notice of the proceedings, (2) that he had met his CAT burden and the IJ's finding to that effect should have been permitted to stand, and (3) that the BIA's order violated his substantive due process rights because his removal to Nigeria would subject him to a government-created danger.

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