Eke, Prince H. v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3391
PRINCE HENRY EKE,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A97-322-428.
____________
ARGUED MAY 29, 2007—DECIDED JANUARY 7, 2008
____________
Before BAUER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. Facing expedited removal from
the United States as an alien convicted of committing
an aggravated felony, Prince Henry Eke filed this petition
for review from the decision of the Board of Immigration
Appeals (“BIA” or Board) rejecting his request for with-
holding of removal. Initially, the Board argued before
this court that we lacked jurisdiction to consider Eke’s
arguments. After oral argument, however, the Attorney
General withdrew that argument and, with the court’s
permission, filed a supplemental brief defending the
Board’s decision on the merits. Eke filed a response to
2 No. 06-3391
that brief on November 28, 2007, and so the case is now
ready for decision.
Eke claims that if he is returned to his native Nigeria,
it is more likely than not that he will be harmed seriously
or even killed, because he is homosexual. The Board
rejected this assertion, relying primarily on adverse
credibility determinations; it found that Eke was sub-
ject to summary removal based on his guilty pleas to
three crimes of theft of financial identity. Before this
court, Eke now presents four reasons in support of his
petition: (1) his convictions were not for crimes that
fall within the definition of “aggravated felony” under
8 U.S.C. § 1101(a)(43)(M)(i); (2) he should not have been
required to provide corroborating evidence of his homo-
sexuality; (3) the Board should have considered the pat-
tern of persecution against homosexuals in Nigeria; and
(4) Eke’s due process rights were violated when the
Immigration Judge (“IJ”) insisted on conducting the
hearing on the merits by video conference. We conclude
that the government correctly conceded that we have
jurisdiction over the petition, but that Eke’s claims fail on
their merits. We therefore deny his petition for review.
I
Eke is a 40-year-old native of Nigeria and member of
the Ibo tribe. He claims to be a homosexual. Eke reported
that he had a long-term sexual relationship with a male
companion, Gozie, in Nigeria. Even though he tried to
keep his sexual orientation a secret, Eke claimed that
others in his community saw through his efforts, and
he was, as a result, frequently harassed. According to
Eke, his community’s traditional law forbids homosex-
uality and regards it as punishable by death. After Eke’s
father was named king of his village, Eke allegedly be-
came a prince and thus was responsible for certain cere-
No. 06-3391 3
monial duties. Bowing to pressure from his family, he
at that time married a childhood friend, Rose Mary, and
accepted her two children as his own. The record indicates
that these children, in fact, were his own. The IJ noted
that Eke’s testimony on this point shifted over time. On
direct examination, he admitted that he had fathered
the children but initially had disclaimed paternity “be-
cause he did not want (them) and thought it was incred-
ible that he had children. However, on cross examination,
[Eke] testified that he never consummated the marriage
and that he did not have any physical relationship with
Rose Mary. Later during his cross examination,” Eke
“testified further that he did in fact have sexual rela-
tions with Rose Mary, on at least two occasions, and that
he did have two children with her.” Eventually, the
marriage failed, after Rose Mary discovered Eke and his
lover Gozie in flagrante delicto. At that point, Eke was
forced to flee his village. He took refuge in an isolated
village for three years, until he obtained the documenta-
tion needed to come to the United States, which he be-
lieved would be more accepting of his sexual orientation.
Once in the United States, he lived briefly with his
sister, but, he testified, she asked him to leave because
of his gay lifestyle. This rejection prompted him to divorce
his Nigerian wife and to marry an American woman. The
latter wife also discovered that he was gay and ended
the relationship.
In 2004, Eke made the mistake of trying to help a friend
buy a used car with false documentation. He presented
another person’s social security card, a permanent resi-
dence card, an Illinois driver’s license, and a state ID card,
in an effort to purchase an automobile worth more than
$10,000. Caught in the act, Eke pleaded guilty to con-
spiring to violate the Illinois identity theft statute, 720
ILCS 5/16G-15(a), and to two substantive counts of
identity theft. On April 27, 2005, the Department of
4 No. 06-3391
Homeland Security (“DHS”) served Eke with a Notice of
Intent To Issue a Final Administrative Removal Order,
based on those convictions. Although at one point Eke
claimed that he never received this Notice, the govern-
ment has now furnished a copy of it, and the copy
shows clearly that Eke acknowledged service. More
than that, the copy shows that Eke, by checking some
boxes on the form, admitted the allegations in the
Notice, admitted that he was deportable, waived his
right to contest the charges, and designated Nigeria as
the country to which he would be removed. Notwith-
standing these representations, Eke then expressed a fear
of persecution upon removal to Nigeria. DHS responded
by putting Eke in proceedings for withholding of removal.
An asylum officer found that Eke’s fear was reasonable,
but the IJ rejected his petition after a full hearing. The
BIA agreed with the IJ, and Eke now presents his peti-
tion for review.
II
Although the government has now withdrawn its
challenge to this court’s jurisdiction, we have a duty
independent of its concession to assure ourselves that
jurisdiction is secure. We therefore begin by explaining
why we too have concluded that we have jurisdiction
over this petition.
This case arose under the provisions of the Immigra-
tion and Nationality Act (“INA”) that authorize expedited
removal of certain aliens who have been convicted of
committing aggravated felonies. See INA § 238(b), 8 U.S.C.
§ 1228(b). Critically, section 238(b) allows a final removal
order to issue without a hearing for the alien. Expedited
removal begins with formal notice served on the alien. See
8 U.S.C. § 1228(b)(4) (“The Attorney General shall pro-
vide that . . . the alien is given reasonable notice of the
No. 06-3391 5
charges and of the opportunity [to inspect the evidence
and rebut the charges].”); 8 C.F.R. § 238.1 (“Removal
proceedings . . . shall commence upon personal service of
the Notice of Intent upon the alien . . . .”) (emphasis
added).
As we noted, DHS served Eke with a Notice of Intent
To Issue a Final Administrative Removal Order on
April 27, 2005. The Notice provided, consistently with
8 C.F.R. § 238(b)(2)(i), that Eke had 10 calendar days in
which to respond to the charges. For an alien who does
not file a response, the regulations provide that DHS
may follow up with a Final Administrative Removal Order.
8 C.F.R. § 238.1(d). Eke’s Notice informed him that he
would be entitled to “seek judicial review of any final
administrative order by filing a petition for review within
14 calendar days after the date such final administra-
tive order is issued.” DHS in fact issued its Final Order
in Eke’s case on May 5, 2005. Although Eke did not seek
independent judicial review of that determination, what
happened next was that DHS referred him for a credible-
fear interview, based on his statement that he believed
that he would be killed or injured upon his return to
Nigeria because of his sexual orientation. An Asylum
Officer from DHS’s Citizenship and Immigration
Services office interviewed him on June 2 and 30, 2005,
and determined that Eke had demonstrated a reasonable
fear of persecution. His case was then referred to the
Immigration Court on July 19, 2005, for consideration of
his petition for withholding of removal.
An IJ held a hearing on July 26, 2005, at which he
considered Eke’s eligibility for both withholding of re-
moval and relief under the Convention Against Torture.
With respect to the former, the IJ noted that Eke had the
burden of demonstrating a clear probability of persecution
in Nigeria on account of his race, religion, nationality,
membership in a particular social group, or political
6 No. 06-3391
opinion. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). In
a written decision dated May 23, 2006, the IJ found
that Eke failed to meet that burden. The record, the IJ
thought, was riddled with inconsistencies going to the
heart of Eke’s claims; at one point Eke fraudulently
entered into a marriage in order to obtain a benefit
under the immigration laws; and Eke never sought
asylum until after he had committed the aggravated
felony. Eke’s testimony was not even clear on such a
major point as how and why his son was killed at the
hands of the village elders. The IJ also found that Eke’s
commission of the crimes of identity theft independently
barred him from withholding of removal, as those crimes
were particularly serious, that Eke had not shown a clear
probability of future persecution based on his sexual
orientation, and that he had failed to show that the
threat of persecution he faced existed throughout the
country. On the last point, the IJ noted that Eke’s claim
that he could not relocate was not objectively reasonable,
in light of the fact that he had remained in Nigeria for
three years in a different village without apparent dif-
ficulty. The BIA affirmed the IJ’s decision and denied
Eke’s motion to remand the matter to the IJ in a decision
dated August 31, 2006.
Eke filed a timely petition for review from the BIA’s
order. We are satisfied that the Attorney General is cor-
rect that the immigration authorities were not finished
with Eke’s case until the BIA’s final decision, and thus
we are authorized to consider the question whether DHS
correctly determined that Eke’s state court convictions
were “aggravated felonies” for purposes of the immigra-
tion laws. The Real ID Act, 8 U.S.C. § 1252(a)(1)(D), put an
end to any doubt on the matter. Moreover, even before
that, we had explained that “we retain jurisdiction to
determine whether we have jurisdiction—that is, to
determine whether an alien’s criminal conviction is
No. 06-3391 7
indeed an ‘aggravated felony’ under the INA, thereby
triggering the jurisdictional bar of § 1252(a)(2)(C).” Lara-
Ruiz v. INS, 241 F.3d 934, 938-39 (7th Cir. 2001).
Even though we lack jurisdiction to review the Attorney
General’s exercise of discretion to grant or deny relief to
an alien, we have the authority to decide constitutional
claims and questions of law. See 8 U.S.C. § 1252(a)(1)(D);
Ali v. Achim, 468 F.3d 462, 465 (7th Cir. 2006). Our
review of the determination that Eke committed an
aggravated felony is de novo. Lara-Ruiz, 241 F.3d at 938-
39. Our review of the legal standards that the IJ and BIA
applied is also de novo. Gattem v. Gonzales, 412 F.3d 758,
763 (7th Cir. 2005).
III
On the merits, the government argues first that Eke
conceded that he was deportable for having been con-
victed of an aggravated felony, and that should be the
end of it. Eke responds that the Notice presented to him
did not indicate that he could contest the characteriza-
tion of his offenses, and thus that he should not be found
to have waived an argument that he never knew he had.
Moreover, Eke points out, the government did not make
its own waiver argument in its initial brief in this case,
and thus we should find that it has forfeited its waiver
argument. Given the shifts in position that have occurred
in this case, we prefer not to resolve it on waiver grounds,
either way. We are satisfied that Eke has been trying
to raise the argument that his convictions, for various
reasons, should not automatically lead to his removal.
Both sides have now briefed the merits of this point, and
so we see no reason not to reach them.
Eke contends that he was not convicted of an “aggra-
vated felony,” as defined by 8 U.S.C. § 1101(a)(43), because
8 No. 06-3391
there is an incomplete overlap between the Illinois law
identity theft statute under which he was convicted, which
encompasses cases where a criminal has obtained $10,000
or more in “credit, money, goods, services, or other prop-
erty,” and the relevant INA section, which requires “a
loss to the victim or victims [that] exceeds $10,000.” See
720 ILCS 5/16G-15; 8 U.S.C. § 1101(a)(43)(M)(i).
To determine whether any of Eke’s convictions amounts
to a conviction for an “aggravated felony,” we follow the
“categorical approach.” Hashish v. Gonzales, 442 F.3d 572,
575-76 (7th Cir. 2006). The Ninth Circuit did the same
in a case very similar to the one now before us:
We first make a categorical comparison between the
generic crime—here, an “aggravated felony,” defined
as an offense that “involves fraud or deceit in which
the loss to the victim or victims exceeds $10,000,”
8 U.S.C. § 1101(a)(43)(M)(i)—and the elements of
each particular offense of which Petitioner was con-
victed. If the statutory crime of conviction is broader
than the generic crime (that is, if Petitioner could have
been convicted under the statute for conduct that
would not satisfy the generic crime) then we must
move to the ‘modified categorical approach’:
Under the modified categorical approach, we conduct
a limited examination of documents in the record of
conviction to determine if there is sufficient evidence
to conclude that a defendant was convicted of the
elements of the generically defined crime even
though his or her statute of conviction was facially
overinclusive.
Li v. Ashcroft, 389 F.3d 892, 895-96 (9th Cir. 2004) (inter-
nal citations and quotation marks omitted). Other circuits
employ the same analysis. For example, the First Circuit
observed in Conteh v. Gonzales, 461 F.3d 45 (1st Cir.
2006), that
No. 06-3391 9
[t]he INA does not prescribe a detailed methodology
for determining whether a predicate offense fits
within these definitions (and, thus, qualifies as an
aggravated felony). Where uncertainty exists, however,
virtually every court of appeals faced with the ques-
tion has sought some form of guidance from the
categorical approach devised by the Supreme Court
for use in the criminal sentencing context. The BIA
has followed suit, citing the leading Supreme Court
precedent, Taylor v. United States, 495 U.S. 575
(1990), in a number of aggravated felony decisions.
461 F.3d at 52 (citations omitted).
The INA includes many offenses within its definition of
“aggravated felony,” but only one is relevant to Eke’s case:
“an offense that—(i) involves fraud or deceit in which the
loss to the victim or victims exceeds $10,000 . . . .” INA
§ 101(a)(43)(M)(i); 8 U.S.C. § 1101(a)(43)(M)(i). We must
therefore determine whether Eke’s Illinois convictions
met these criteria, by looking at the “terms of the charg-
ing document, the terms of a plea agreement or tran-
script of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the de-
fendant, or to some comparable judicial record of this
information.” Shepard v. United States, 544 U.S. 13, 26
(2005). Two elements stand out: first, did the offense
involve fraud or deceit; and second, was “the loss to the
victim or victims” more than $10,000. Although at one
point, Eke had argued that his conspiracy conviction did
not involve an amount over $10,000, he has now with-
drawn that argument. We thus analyze all three convic-
tions together.
The relevant Illinois statute bars using another per-
son’s identity information “to fraudulently obtain credit,
money, goods, services, or other property.” 720 ILCS
5/16G-15(a). The record here includes an indictment
10 No. 06-3391
from the Grand Jury in Cook County, Illinois, charging
that Eke violated this statute when he
knowingly used any identification document, to wit:
social security card and naturization [sic] permanent
residency card of another person, Peace Ralston[,] to
fraudulently obtain credit, money, goods, services, or
other property, to wit: an automobile in the name of
Peace Ralston and the value of the credit, money,
goods, services, other property exceeded ten thousand
dollars but did not exceed one hundred thousand
dollars . . . .
Another count of the indictment alleged a violation of
5/16G-15(a) with the use of “Illinios [sic] driver’s lecense
[sic] and Illinois state ID of another person, Peace
Ralston.” Finally, the third count of the indictment
charged Eke with conspiracy to commit a financial crime,
in violation of 720 ILCS 5/16H-45, in that he “had
personal information of Peace Ralston mailed to his post
office box on two occasions in furtherance of that agree-
ment with Sabina Olapindo and presented said docu-
ments of Peace Ralston to purchase an automobile as part
of a common scheme . . . .” There is also a “Certified
Statement of Conviction/Disposition,” which lists the
three charges as follows:
720-5/16G-15(a) . . . F . . . . FIN ID THEFT $10,000<$100,000
720-5/16G-15(a) . . . F . . . . FIN ID THEFT $10,000<$100,000
720-5/16H-45 . . . . . F. . . . FIN CRIME/CONSPIRACY/>10K-
100K
Eke argues that these convictions punish frauds in
which the value of the credit or item exceeded $10,000,
but that the aggravated felony that DHS identified
focuses on a loss to the victim that exceeds $10,000.
Here, Eke continues, he never actually “obtain[ed] credit,
money, goods, services, or other property” through his
No. 06-3391 11
attempted use of Ralston’s identity. At most, he at-
tempted to obtain credit and goods through the use of
Ralston’s documents, but his efforts were unsuccessful. (As
we read his arguments, Eke concedes that the Illinois
convictions involved fraud or deceit, and so we focus
only on the monetary element.)
The government agrees that a categorical approach is
proper, citing Taylor v. United States, 495 U.S. 575, 602
(1990), as modified by Shepard v. United States, 544 U.S.
13, 26 (2005), and as applied to immigration cases in
Espinoza-Franco v. Ashcroft, 394 F.3d 461, 465 (7th Cir.
2006), superceded by statute on other grounds, as stated in
Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir. 2005).
Relying on INA § 101(a)(43)(U), which includes in the
definition of “aggravated felonies” covered by the Act “an
attempt or conspiracy to commit an offense described
in this paragraph,” the government argues that Eke’s
Illinois convictions fall within the Act’s definition. Even
though Illinois was not prosecuting Eke for attempted
identity theft, it did prosecute him for conspiracy, and so
§ 101(a)(43)(U) is directly implicated. The documents
we are entitled to consult show that he conspired to
obtain more than $10,000 in valuable goods or services
through his fraudulent acts; they also support a showing
that he attempted to commit the felony identified by
subsection (M).
Eke’s conviction for conspiracy is enough by itself to
justify our looking to the full amount of the loss Eke
intended to inflict. We therefore need not decide wheth-
er § 101(a)(43)(M), standing alone, refers only to actual
loss or to intended loss. Over the objection of one member
of the panel, the Ninth Circuit suggested in dicta that
subsection (M) in isolation does not include intended loss.
See Kharana v. Gonzales, 487 F.3d 1280, 1282 n.3 (9th Cir.
2007). But see id. at 1286 (Wallace, J., concurring). For
what it is worth, we think that Judge Wallace, who
12 No. 06-3391
argued that intended loss could be considered for sub-
section (M), had the better of the exchange. The definition
of the term “aggravated felony” appears in § 101(a)(43) as
a whole; each of that section’s subparts contributes to
the definition, including subpart (U), which adds to
everything that went before “an attempt or conspiracy to
commit an offense described in this paragraph.” In general,
courts should give effect to all parts of the statute. Fur-
thermore, reading subsection (M) to include intended loss
is consistent with the way that loss is defined for purposes
of the sentencing guidelines. This court has held that the
guidelines call for the use of intended loss in fraud cases,
where intended loss is greater than actual loss. United
States v. Saunders, 129 F.3d 925, 932 (7th Cir. 1997).
Indeed, an unused line of credit is generally viewed as an
intended loss. See, e.g., United States v. Mei, 315 F.3d 788,
792 (7th Cir. 1993) (“[I]n determining an intended loss
courts focus on the amount that the scheme placed at risk,
not the amount of money or property stolen.”); United
States v. Lin, 410 F.3d 1187, 1191-93 (10th Cir. 2005)
(estimating intended loss in credit card fraud by aggregat-
ing the limits on the unused credit cards); United States v.
Sowels, 998 F.2d 249, 251 (5th Cir. 1993) (calculating loss
from credit card fraud as the aggregated credit limits of
the cards).
The charging documents and the record of conviction
show that Eke pleaded guilty to using and to conspiring
to use someone else’s identifying information to obtain
“credit, money, goods, services, or other property” in an
amount exceeding $10,000. We therefore hold that the
Attorney General relied on a permissible conviction for
purposes of the Final Administrative Removal Order.
No. 06-3391 13
IV
A
Eke also claims that the BIA should have granted his
petition for withholding of removal. Both the IJ and the
BIA erred, he claims, by requiring him to corroborate
his claim of persecution based on his membership in the
social group of homosexual men. The Real ID Act changed
the landscape for our review of this type of claim. See
Real ID Act of 2005 § 101(e), Pub. L. No. 109-13, 119 Stat.
231 (May 11, 2005). Under the amended statute, “[n]o
court shall reverse a determination made by a trier of
fact with respect to the availability of corroborating
evidence . . . unless the court finds . . . that a reasonable
trier of fact is compelled to conclude that such corroborat-
ing evidence is unavailable.” INA § 242(b)(4), 8 U.S.C.
§ 1252(b)(4).
The IJ concluded that Eke did not present credible
testimony, noting that his testimony lacked “sufficient
detail and . . . failed to logically explain away the myriad
of inconsistencies and clearly contradictory statements
present throughout his entire testimony, affidavit, and
Credible Fear interviews.” The IJ then added that
“[s]pecific, detailed, and credible testimony or a comb-
ination of detailed testimony and corroborative back-
ground evidence is necessary to prove a case,” but that
“[h]ere the respondent has failed to provide both.” There
is nothing in the nature of Eke’s claims that would
compel us to find that corroborating evidence was unavail-
able to him. The BIA’s comments on the lack of corrob-
orating evidence are telling:
The applicant did not provide any supporting wit-
nesses. . . . He also failed to either submit some kind
of documentation indicating his sexual preferences,
such as letters, affidavits, photographs, or other
forms of corroborative evidence; or establish that
14 No. 06-3391
such evidence was not reasonably available to him. In
fact, the applicant could not even provide the name
of the gentleman with whom he was allegedly in-
volved in a homosexual relationship.
The BIA’s description shows that many different kinds of
materials might have served as corroborating evidence;
it was Eke’s failure to present anything useful, combined
with the gaps and inconsistencies in his various accounts
of his story, that undermined his case in the IJ’s eyes.
B
Eke also argues that the BIA committed legal error
when it considered the issue of future persecution. Under
the relevant regulation, 8 C.F.R. § 208.16(b)(2)(i) and (ii),
an alien does not have
to provide evidence that he or she would be singled out
individually for such persecution if:
(i) The applicant establishes that in that country there
is a pattern or practice of persecution of a group of
persons similarly situated to the applicant on account
of race, religion, nationality, membership in a par-
ticular social group, or political opinion; and
(ii) The applicant establishes his or her own inclusion
in and identification with such group of persons
such that it is more likely than not that his or her
life or freedom would be threatened upon return to
that country.
8 C.F.R. § 208.16(b)(2). Eke claims that he has satisfied
these two requirements, but that the IJ (ratified by the
BIA) erroneously required him to show that he “would be
singled out individually” for persecution.
We do not read the IJ’s opinion that way. The IJ ac-
knowledged that Eke had shown evidence of a pattern of
No. 06-3391 15
persecution against the social group of homosexuals,
specifically noting “[t]he U.S. Department of State
Country Reports and supporting material submitted by
the respondent generally describe the social conditions
and situation for homosexuals in Nigerian society.” The
problem was that the IJ did not credit Eke’s testimony
that he, individually, was part of this persecuted group.
It was Eke’s burden to “establish[] his or her own inclu-
sion and identification with such group of persons . . . .”
8 C.F.R. § 208.16(b)(2)(ii). Although it would have been
helpful had the IJ stated explicitly that its finding
that Eke was not credible meant that it could not con-
clude that Eke is a homosexual, such that it was more
likely than not that a return to Nigeria would threaten
Eke’s life or freedom, this degree of precision was not
essential. Eke’s testimony and affidavit contained sev-
eral inconsistencies about his homosexuality and history of
homosexual conduct. Because of these inconsistencies and
the IJ’s credibility finding (which we cannot disturb
on these facts), Eke failed to show his inclusion in the
social group of “homosexuals.” Thus, the IJ was not
required to consider further his argument under 8
C.F.R. § 208.16(b)(2).
C
Finally, Eke claims that the government violated his
due process rights by conducting his hearing by tele-
video rather than in person. Eke contends that if the IJ
had seen him in person, the IJ would have recognized
that Eke is in fact homosexual.
We note at the outset that the statute governing Eke’s
hearing, 8 U.S.C. § 1229a, specifically authorizes pro-
ceeding by means of a video conference. See 8 U.S.C.
§ 1229a(b)(2)(A)(iii). Eke claims that this part of the
statute, which is implemented by 8 C.F.R. § 1003.25(c),
16 No. 06-3391
violates his constitutional due process rights. No court
has ever so held, however. Indeed, the Fourth Circuit
rejected a due process argument in similar circumstances.
Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002). In Rusu,
the three-hour hearing “was plagued by communication
problems.” Id. at 319. The petitioner’s “damaged mouth
and missing teeth [made him] . . . unable to speak clearly.”
Id. Yet even though the IJ had difficulty compre-
hending the petitioner’s testimony, the court reporter had
to write “indiscernible” a total of 132 times on the tran-
script of the hearing, and the petitioner had difficulty
comprehending the questions of his counsel, and even
though there were technological problems with the video
conference equipment, the Fourth Circuit found no due
process violation because “the IJ concluded that she could
glean the asserted factual basis of Rusu’s Application.” Id.
(No such technical difficulties occurred in this case.) The
Rusu court relied on the Supreme Court’s decision in
Mathews v. Eldridge, 424 U.S. 319, 333-34 (1976), which
“recognized that ‘the fundamental requirement of due
process is the opportunity to be heard at a meaningful time
and in a meaningful manner’ . . . [but that] will have
different meanings in different circumstances, and due
process only ‘calls for such procedural protections as the
particular situation demands.’ ” Rusu, 296 F.3d at 321; see
also Hermez v. Gonzales, 227 Fed. Appx. 441, 445 (6th
Cir. 2007) (nonprecedential).
We agree with the Fourth Circuit that Eldridge should
guide our analysis here. An alien in removal proceedings
is not entitled to all of the protections that a criminal
defendant would receive, even though at a broad level
of generality both are entitled to due process. As for
Eke, even if we thought (stereotypically) that something
about his physical presence could prove his homosex-
uality, he has not explained how the tele-video format
prevented the IJ from considering that evidence. Thus, Eke
No. 06-3391 17
has failed to show prejudice, which is required for him to
succeed on this claim. Capric v. Ashcroft, 355 F.3d 1075,
1087-88 (7th Cir. 2004).
V
We conclude, in summary, that the Illinois convictions
on which the government relied in Eke’s removal pro-
ceeding were properly characterized as aggravated felo-
nies, and that Eke’s other challenges to his petition for
withholding of removal are without merit. We therefore
DENY his petition for review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-7-08