NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0379n.06 No. 10-3761 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

CHI DI CHRI STI AN NWACHUKWU, Petitioner,

v. ERI C H. HOL DER, J r., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM A FI NAL ORDER OF TH E BO ARD OF I MMI GRATI ON APPEAL S

Be fore : KEI TH, MARTI N, and COOK , Circuit J udg es.

PER CURI AM. Chidi Christian Nwac hukwu, a native and citizen of Nig eria , petitions for revie w of a Boa

rd of I mmigration Appea ls order aff irming an I mmigration J udg e’s decision denying his applications for asylum, withholding of remova l, a nd protec tion under the Convention Ag ainst Torture

. He also moves this court to proce ed in forma pauper is and for the appointment of counsel. This case has been ref

err ed to a panel of the court pursuant to Rule 34(j)(1) , Rules of the Six th Circuit. Upon examination, this panel una nimously ag ree s that oral ar g ument is not needed. Fe d. R. App. P. 34(a). Nw ac h u k wu enter ed the United States in 2002 as a visitor. He marrie d a United States citizen in De ce m b er 2 0 0 2 , and his wife filed an immediate relative petition on his behalf

. This petition was approve d, and Nwac hukwu eventua lly beca me a lawful perma

nent resident. Howeve r, the couple separ ated soon afte r, and Nwac hukwu was charged wi t h n u merous counts of sexually abusing his 14-y ear -old stepdaug hter, who had lived with Nwac hukwu and hi s wife in the same household. Nwac hukwu pleade d nolo contende re to one count of first-de gre e cr i m inal sexualNo. 10-3761 - 2 - conduct in violation of Michig an Compil ed L aws § 750.520b(1)( b). In May 2007, he was sentenc ed to two y ear s to twe nty y ear s in prison, a nd serve d three y ear s befor e being parole d in March 2010. In Marc h 2009, while Nwac hukwu was incar cer ated, the Depa rtment of Homeland Security

serve d Nwac hukwu wi t h a No tice to Appea r, char g ing him with remova bility under 8 U.S.C. § 1 2 2 7 (a) (2)( A)(iii) for his conviction. They char acte rized his offe nses as an ag g ravated felony relating to the sexual abuse of a minor, and a crime of violence, as define d in sections 101(a) (43)( A) and (43)( F) of the I mmigra tion and Nationality Act. Nwac hukwu then filed an application for asylum, withholdi ngof re moval, and prote ction under the Torture Act. After a hear ing was held, it was deter mined that the documents submitt ed by the g overnme nt establi s h ed the char g es and conviction, and that Nwac hukwu’s offe nse, define d under Michig an Compil ed L aws § 750.520b(1) (b) as sexual penetr ation with a victim of 13 to 16 year s of ag e and the defe ndant being a member of the same household, constituted the ty pe of conduct which C ong ress intended to include as an “ag g ravated felony” under the I mmigration Act. I t was conclude d that the first char g e of remova bility , pursuant to section 237(a) (2)( A)(iii) of the Act was sustainable. See 8 U.S.C. §§ 1101(a) (43)( A), 1227(a) (2)( A)

. I t was deter mined that the offe nse also fell within the definition of a “cr ime of violence” so this alternative char g e of remova bility was also sustainable. See 8 U.S.C. §§ 1101(a)(43) (F ), 1227(a )(2) (A). I t was then deter

mined that, as a result of the conviction, Nwac hukwu was statutorily barr ed from asylum relief

, pursuant to section 208(b)( 2)(B )(i) of the Act. See 8 U.S.C. § 1158(b)( 2)(A) (ii), (b)( 2)(B )(i). I t was also deter mined that Nwac hukwu’s application for withholding of remova l was also barr ed, pursuant to section 241(b)( 3)(B )(ii), b ec au s e the conviction involved a “par ticularly serious crime.” There fore , Nwachukwu’s claim for relief under the Torture Act was the onl y one not statutorily barr ed. See 8 C.F.R. § 1208.16(c) ,(d). Neve rtheless, Nwac hukwu was elig ible only for defe rra l of remova l rathe r than withholding of remova l under the Act. See 8 C.F.R. § 1208.17(a)

. I t was d et ermined that Nwac hukwu was not cre dible, and had not met his burden of showing that more likely

than not he would be tor

tured upon be ing r emoved to Nig eria

.No. 10-3761 - 3 - On appea l, the Boa

rd agree d that Nwac hukwu’s nolo contende re plea co n s t i t uted a “convic tion” for purposes of his immigration appea l. The Board also ag ree d that Nwac hukwu’s conviction for criminal sexual conduct fell within the definition of “sexual abuse of a minor” under the Act, see 8 U.S.C. § 1101(a) (43)( A), and there fore satisfied the definition of “ag g rava ted felony .” The Boa rd found it unnece ssary to addre ss whether the conviction was a crime of violence under the Act. Be cause his conviction as an ag g ravated felon was established, the Boa rd upheld the decision finding that Nwac hukwu was not elig ible for asylum re lief, and also upheld the deter mination Nwac hukwu’s crime was particula rly serious so that he was also ineligible for withholding of

remova l. The Boa

rd also deter

mined Nwac hukwu was not entitled to defe rra l of remova l under the Convention Ag ainst Torture beca use he had failed to establish that, more likely than not, he would be torture d if remove d to Nige ria. See8 C.F.R. § 1208.17. The Boa rd reje cted numerous claims that Nwac hukwu raised for the first time on appea l, including his claim that he was denied due proce ss and a fair hear ing beca use portions of his hear ing

wer e transcr ibed as “indiscer nible.” The Boa

rd also deter

mined that Nwachu k wu h ad failed to explain how his rig hts under the Six th and Eig hth Amendments wer e violated, and held that it was unpersua ded by Nwac hukwu’s arguments surrounding his alleg ed rig ht to a consular repr esentative from his native country at the time of his arr est. Finally , the Boa rd denied Nwac hukwu’s motion for

canc ellation of re moval. Nwac hukwu timely

filed a pe tition for review , prese rvingthe followingarguments: 1) his plea of nolo contende re did not establish his guilt and conviction for purposes of his application for asylu m an d wi thholding of remova l; 2) he was denied acc ess to Nig eria n consulate when he was

arr ested, in violation of his rig hts under the Vienna Convention; 3) his underly ing conviction is invalid; 4) the remova l order subjects him to crue l and unusual punishment in violation of the Eig hth Amendment, and to double jeopar dy in violation of the Fifth Amendment; 5) he was wrong ly denied relief under the Torture Act beca use he has shown that he will b e tortured afte r his remova l to Nig eria ; 6) the adv e r s e c r e d ib il it y d e te r mi n a tion was err oneous; 7) the transcr ipt contained omissions and err ors that denied him due proce ss; 8) they failed to examine whether he was subjected toNo. 10-3761 - 4 - hardship in a

naly zing his claim of canc ellation of remova l; 9) the provisions of the Act barr ing his elig ibilit y for a sylum and withholding shoul d not be applied beca use his offe nse wa s g overne d by state law rathe r than fede ral law; and 1 0 ) h e m et his burden of showing a well-founde d fea r of perse cution in Nige ria to be e ntitled to asylum relief. In revie wing an a s y

lu m d e te r mi n a ti on wher e the Boa

rd adopts portions of the hear ing judge ’s

rea soning and supplements the opinion, we revie w the opinion as supplemented by the Boa rd’s analy sis. Zhao v. Holder , 569 F.3d 238, 246 ( 6th Cir. 2009). The exis tence of subject matter jurisdiction is revie wed de novo. Abu-Khaliel v. Gonzales , 436 F.3d 627, 630 (6th Ci r. 2 0 0 6). We lack jurisdiction to revie w a final order of remova l of an alien who is remove d for committing a criminal offe nse as set forth in 8 U.S.C. § 1227(a) (2)( A)(iii). See 8 U.S.C. § 1252(a) (2)( C). The onl y ex ce p t i on to this jurisdictional bar is when an appellate court considers “constitutional claims or qu es t i ons of law raised upon a petition for revie w,” as permitted under 8 U.S.C. § 1252(a) (2)( D). Thus, we do have jurisdiction to revie w Nwac hukwu’s due proce ss c laims, a s well as the issues relating to whether his nolo contende re plea in state court for c riminal sexual conduct constituted a convic tion for an ag g ravated felony as def ined under

the I mmigration Act. See I

kharo v. H

older , 614 F.3d 622, 629 ( 6th Cir. 2010). Nwac hukwu’s plea of nolo contende re was sufficie nt to establish his conviction for purposes of barr ing his application for asy l u m an d wi t h holding of remova l. The Act clea rly states that the term “convic tion” includes a p l ea of nolo contende re wher e some form of punishment has been order ed. 8 U.S.C. § 1101(a) (48)( A). We find no merit to Nwac hukwu’s argument that his conviction could not amount to an “ag g ravated felony

” under the Act beca

use it was g overne d by state rathe r than fede ral law. Under the Act, the term “ag g ravated felony” applies to any offe nse “in violation of Fe dera l or State law.” 8 U.S.C. § 1101(a) (43) (final para g raph)

. We conclude t h at Nwac hukwu’s conviction for sexual crimi n al conduct in Michig an was an “ag g ravated felony” and was also a “par ticularly serious crime” under the Act. The char g e of remova bility based on Nwac hukwu’s violation of Michig an’s sexual misconduct law under Michig an Compil ed L aws § 750.520b(1)(b) wa s a permissible constructionNo. 10-3761 - 5 - of the statute. See INS v. Aguirre-Aguirre , 526 U.S. 415, 424-25 (1999). As a result, Nwac hukwu’s conviction bar

red a sylum relief a

nd the withholding of re moval. See 8 U.S.C. §§ 1101(a)(43) (A), 1227(a) (2)( A), 1158(b)( 2)(A) (ii) , 1 1 5 8 (b ) ( 2 ) ( B ) ( i)

. B e c ause Nwac hukwu is statutorily ineligible for asylum relief

, we need not addre ss his argument that the evidenc e was sufficie nt to show that he had

a well-founde d fea

r of perse cution, an element he would otherwise be require d to show. L ikewise, beca use of his conviction, Nw achukwu is barr ed from relief as a “batter ed spouse.” See 8 U.S.C. § 1229b(b)( 2). An d , Nwac hukwu’s claim for relief under the Act, based only on Nwac hukwu’s challeng e to the Bo ar d ’s finding as to the likelihood that he will be tortured upon his return to Nig eria , is barr ed beca

use of his having committed a criminal offe nse. See Singh v. U.S. Att’y. Gen. , 561 F.3d 1275, 1280 ( 11th Cir. 2009)(per curiam). Nwac hukwu arg ues t hat he was subjected t o crue l and unusual punishme n t i n violation of the Eig hth Amendment when he was order ed remove d, and that he was subjected to double jeopar dy in violation of the Fifth Amendment when he was convicted in Mic higa n then remove d to Nige ria for the same offe nse. Howeve r, Nwac hukwu’ s remova l is not considere d “punishment” for purposes of applying these constitutional rights and principles. See Elia v. Gonzales , 431 F.3d 268, 276 (6th Cir. 2005); Cadet v. Bulger , 377 F.3d 1173, 1196 ( 11th Cir. 2004). Nwac hukwu argues that his due proce ss rig hts wer e violated when portions of the administrative hear ing wer e transcr ibed as “indiscer nible.” We revie w such claims de nov o in

remova l proce eding s. Garza-More no v. Gonzales , 489 F.3d 239, 241 (6th Cir. 2007). Whil e aliens

are entitled to due process i n deportation p ro ce eding s, a due proce ss violation may be established only upon a showing“that a c onstitut ional err or ca used ac tual prejudice .” Al-Ghorbani v. Holder , 585 F.3d 980, 992 (6th Cir. 2009). In other words, Nwac hukwu must demonstrate that any alleg ed defe ct aff ecte d the outcome of his proce eding s. See Ikharo , 614 F.3d at 631. The transcr ipt of the hear ing reve als that it wa s re as o n ably acc urate and allowed for meaning ful appellate revie w. See Sterkaj v. Gonzales , 439 F.3d 273, 279 (6th Cir. 2006). Nwac hukwu has failed to show how the minor omissi ons aff

ecte d the outcome of

the proc eeding s. Thus, we find no mer it to thi s claim.No. 10-3761 - 6 - Nwac hukwu’s rem a in in g c laim s a tt a c k th e v a li d it

y o f h is u n d e r ly ing conviction in state court. Howeve r, Nwac hukwu m ay n ot collater ally attack his underly ing conviction in these remova l proce eding s. See Al-Najar v. Mukase y , 5 1 5 F. 3 d 7 0 8 , 714-15 (6th Cir. 2008). It was proper to ref rain from “g o[i ng ] behind the judicial rec ord” to deter mine Nwac hukwu’s g uilt or innocenc e or examining t he validit y of hi s plea. Id . (quoting Palmur v. INS, 4 F.3d 482, 489 (7th Cir. 1993)). Acc ording ly , Nwac hukwu’s motion to proce ed in forma pauperis is g rante d for the limit ed purpose of revie wing his petition, his motion for the appointment of counsel is denied, the petition for r eview is de nied, and his re quest to stay remova l is also denied.