Afi M. Apouviepseakoda v. Alberto R. Gonzales

475 F.3d 881, 2007 U.S. App. LEXIS 2287, 2007 WL 286300
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 2, 2007
Docket05-3752
StatusPublished
Cited by38 cases

This text of 475 F.3d 881 (Afi M. Apouviepseakoda v. Alberto R. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Afi M. Apouviepseakoda v. Alberto R. Gonzales, 475 F.3d 881, 2007 U.S. App. LEXIS 2287, 2007 WL 286300 (7th Cir. 2007).

Opinions

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, [884]*884they told her to call if her husband turned up. She says that she immediately went to a Lorn 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 Lorn 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 Apouviepseako-da’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, [885]*885123 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(e), 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, Apouviepseako-da, 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).

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Bluebook (online)
475 F.3d 881, 2007 U.S. App. LEXIS 2287, 2007 WL 286300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/afi-m-apouviepseakoda-v-alberto-r-gonzales-ca7-2007.