NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_________________

No. 22-3338

_________________

CHUKWUDI GABRIEL OLEKA,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

 ________________

On Petition for Review of a 

Decision of the Board of Immigration Appeals

(A209-355-331)

Immigration Judge: Kuyomars “Q” Golparvar

________________

Submitted Under Third Circuit L.A.R. 34.1(a)

October 27, 2023

Before: HARDIMAN, FREEMAN, and MONTGOMERY-REEVES, Circuit Judges.

(Opinion filed: February 15, 2024)

______________

OPINION*

______________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
2

MONTGOMERY-REEVES, Circuit Judge.

Chukwudi Gabriel Oleka petitions this Court for review of a final order of removal 

issued by the Board of Immigration Appeals (the “BIA”). The order affirmed the 

Immigration Judge’s (the “IJ”) denial of Oleka’s applications for asylum, withholding of 

removal, and protection under the Convention Against Torture. 

On appeal, Oleka argues that the IJ violated his due process rights by unduly 

restricting the removal hearing such that Oleka was unable to make arguments on his 

behalf, improperly relying on findings from a separate bond proceeding as well as 

impeachment evidence that Oleka was unable to review, and refusing to sign a subpoena 

for discovery from the criminal case. Oleka also argues that the BIA committed 

reversible error by requiring that he show substantial prejudice to establish his due 

process claim. As discussed below, Oleka has failed to show that the IJ violated his due 

process rights. Therefore, we will deny his petition. 

I. BACKGROUND

Oleka is a native of Nigeria. On April 8, 2016, Oleka, accompanied by his wife

and daughter, entered the United States on a non-immigrant visa after receiving threats of 

violence against their family. Oleka believed that these threats were orchestrated by the 

Islamist militant organization Boko Haram, which caused Oleka to fear for his own safety 

and that of his family. To facilitate his family’s entry into the United States, Oleka

authorized his sister to hire a travel agent on his behalf to assist him and his family with 

their visa applications to the United States. At some point, Oleka learned that the travel
3

agent provided false information about Oleka’s employment in Nigeria and his reasons 

for traveling to the United States in his visa application. 

Before his visa expired on October 7, 2016, Oleka hired an attorney to help him

seek asylum. According to Oleka, the attorney encouraged him to “have someone ‘make’

a letter for [him]” to obtain evidence to support his asylum application—even after Oleka 

told him that there was none. A.R. 574. Among other things, the attorney instructed 

Oleka to write a statement saying that his father was “killed by [Boko Haram]” even 

though Oleka knew this was not true. A.R. 989. Oleka also admits to “obtain[ing] 

several pieces of doctored letters and other informal documents and submitt[ing] them” in 

support of his asylum application. Oleka Br. 12.

In August 2020, Oleka was arrested and charged with three crimes—each of 

which related to allegations by his wife that he had sexually abused their daughter. The 

prosecution later dropped two of the three charges and amended the third to Endangering 

the Welfare of a Child. Immediately following Oleka’s release from State custody, he 

was detained by Immigration and Customs Enforcement, and the Department of 

Homeland Security (“DHS”) began removal proceedings against him. 

On May 17, 2022, the IJ held a hearing on Oleka’s removal. While reviewing the 

record, the IJ initially marked into evidence his earlier memorandum opinion denying 

Oleka’s request for bond because Oleka had failed to demonstrate that he was not a 

danger to the community (the “Bond Memo”). Oleka’s counsel objected and argued that 

the evidence and findings in the removal proceeding should be considered separately 

from the evidence and findings in the bond proceeding. After hearing from DHS, the IJ 
4

determined that the Bond Memo would be marked for identification purposes only. 

Oleka’s counsel requested additional assurance that the IJ would not rely on the Bond 

Memo in the removal proceeding, to which the IJ responded, “[a]bsolutely.” A.R. 159–

60. 

Oleka’s counsel also requested that the IJ subpoena photographs from Oleka’s 

criminal case depicting the injuries that Oleka’s daughter sustained from the alleged 

sexual abuse. DHS opposed Oleka’s request on the ground that there was enough 

alternative evidence to determine whether Oleka had sexually abused his daughter and 

that the IJ should not allow Oleka to relitigate his criminal case in an immigration 

proceeding. The IJ denied Oleka’s request for a subpoena. 

Next, the IJ addressed witness and examination issues. The IJ asked Oleka’s 

counsel how much time she needed for direct examination, and she anticipated one hour. 

The IJ gave counsel the full hour but asked that she try to finish in 45 minutes. During 

direct examination, Oleka’s counsel began asking questions about Oleka’s asylum 

application and the attorney who helped him prepare it. The IJ interrupted this line of 

questioning and asked about its relevance. Counsel responded, “I’m laying a foundation 

for the withdrawal of documents and both the unlawful and ineffective advice given by 

his attorney around that.” App. 206. The IJ reminded counsel that he had granted her 

motion to withdraw the documents and even though the Government stated that it may 

reintroduce the documents on cross-examination, the documents were not currently part

of the record. Id. Counsel responded, “[o]kay, thank you, [Y]our [H]onor. Then we 

won’t ask questions about that right now.” Id. She then moved on. At the 45-minute 
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mark, the IJ informed Oleka’s counsel that she should try to finish in the next 15 minutes. 

After exceeding the one hour, the IJ informed counsel that she had “10 more minutes” to 

conclude direct examination. A.R. 215. Oleka’s counsel then requested another 20 

minutes and proposed that the time allocated for a different witness be reallocated to 

Oleka’s direct examination. Although the IJ seemed like he would potentially grant the 

request, he ultimately denied it after Oleka’s counsel continued to object to the IJ’s 

“limit[ing] [Oleka’]s testimony.” App. 217. He then reiterated that Oleka’s counsel had 

“until 3:05[,]” to wrap up. Id. 

During cross-examination, DHS inquired into the false information Oleka 

submitted in his visa and asylum applications. Oleka’s counsel objected on hearsay 

grounds, and the IJ overruled the objection. On redirect, Oleka’s counsel asked questions 

about Oleka’s asylum application and the attorney who helped him prepare it. Around

4:00 p.m., the IJ informed the parties that because of the time restraints placed on Oleka,

as an ICE detainee, and the fact that several witnesses remained, the hearing would be 

continued to May 31 at 1:30 p.m. None of the parties objected. 

On May 25, Oleka’s counsel moved to reopen direct examination, arguing that the 

time limitations imposed by the IJ were unreasonable and violated Oleka’s due process 

rights. Counsel’s motion provided eight bullet points listing the topics Oleka wished to 

address. The topics focused on evidence that the sexual assault allegations against him 

were false, details of his arrest, Oleka’s positive work history and religious activities 

while in the United States, and “all subjects relevant to discretion[.]” A.R. 366–67. 
6

The immigration hearing resumed on May 31. At the close of witness testimony, 

the IJ considered Oleka’s motion to reopen. Oleka’s counsel requested 30 minutes to 

conduct direct examination, and DHS did not oppose this motion. The IJ confirmed that 

Oleka sought to testify further on the “discretionary component” of Oleka’s requests for 

relief—including the IJ’s credibility determination. A.R. 337. The IJ determined that 

reopening the record for 30 minutes of live testimony seemed like “a lot” because (1) 

counsel had received an hour and a half to conduct Oleka’s direct examination, (2) the 

record contained a “detailed statement” from Oleka, and (3) Oleka presented “many 

witnesses” who testified about the discretion issue. A.R. 338. Rather than allowing live 

testimony, the IJ permitted Oleka to submit a three-page statement addressing any 

discretionary issues that he believed were not adequately covered during the hearing. 

The IJ also instructed the parties to submit written closing statements. None of the 

parties objected to the IJ’s instructions. Oleka then submitted a seven-page declaration 

addressing his life in the United States, the allegedly false accusations that led to his

arrest, and his submission of false information in his visa and asylum applications. 

After considering the evidence and the parties’ submissions, the IJ denied Oleka’s 

requests for relief. The IJ determined that Oleka was not a credible witness because of

the “[n]umerous discrepancies” in his visa and asylum applications, “unpersuasive” 

explanations for the false contents in these documents, admission that he submitted false 

information, failure to acknowledge “any wrongdoing[,]” and evasive demeanor and 

vague testimony about the falsities in his visa and asylum applications. App. 25–26.

Thus, the IJ discounted Oleka’s testimony. The IJ then determined that there was no 
7

“independent evidence to corroborate any of [Oleka’s] activities in Nigeria” and thus no 

evidence supporting Oleka’s requests for relief. App. 29. 

Oleka appealed the IJ’s decision. The BIA affirmed the IJ’s decision and adopted 

the IJ’s reasoning. The BIA also held that Oleka failed to show that the IJ’s adverse 

credibility finding was clearly erroneous or that he suffered substantial prejudice from the 

IJ’s purported due process violations during the removal hearing. Oleka timely appealed.

II. ANALYSIS1

On appeal, Oleka argues that the IJ violated his due process rights by (1) marking 

the Bond Memo for identification purposes only, (2) denying Oleka’s request to 

subpoena photographs from the child-endangerment case to support his claim that he did 

not sexually abuse his daughter, (3) imposing unreasonable restrictions on the time and 

scope of Oleka’s direct examination and denying his motion to reopen direct 

examination, and (4) relying on DHS’s impeachment evidence to find that Oleka’s 

testimony was not credible.

2 For the reasons below, we hold that the IJ did not violate 

Oleka’s due process rights.

1 The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction under 8 

U.S.C. § 1252. Generally, our jurisdiction is limited to final orders issued by the BIA. 

When, however, the BIA adopts the reasoning of an IJ, we also review the IJ’s decision. 

Blanco v. Att’y Gen., 967 F.3d 304, 309–10 (3d Cir. 2020). “But we look to the IJ’s 

opinion only where the BIA has substantially relied on that opinion.” S.E.R.L. v. Att’y 

Gen., 894 F.3d 535, 543 (3d Cir. 2018) (cleaned up).

2 The Government argues that Oleka has waived (or forfeited) any argument on the 

merits of the IJ’s denial of his requests for removal relief. Because Oleka only asserts 

that the alleged due process violations entitle him to a new hearing, we do not address the 

merits of his removal petition. In re: Asbestos Prods. Liab. Litig. (No. VI), 873 F.3d 232, 

237 (3d Cir. 2017) (“As a general matter, an appellant [forfeits] an argument in support 
8

We review due process claims de novo. Serrano-Alberto v. Att’y Gen., 859 F.3d 

208, 213 (3d Cir. 2017). “The Fifth Amendment protects the liberty of all persons within 

our borders, including aliens in immigration proceedings who are entitled to due process 

of law—that is, a meaningful opportunity to be heard—before being deported.” Id. at 

211. “This guarantee comprises three key protections: (1) factfinding based on a record 

produced before the decisionmaker and disclosed to him or her; (2) the opportunity to 

make arguments on his or her own behalf; and (3) an individualized determination of his 

[or her] interests.” Id. at 213 (alteration in original) (cleaned up). In the context of 

removal proceedings, “[a] petitioner claiming a procedural due process violation because 

he was not afforded the opportunity to argue on his own behalf is required to show ‘(1) 

that he was prevented from reasonably presenting his case[,] and (2) that substantial 

prejudice resulted.’” Id. (alteration in original) (quoting Fadiga v. Att’y Gen., 488 F.3d 

142, 155 (3d Cir. 2007)). If, however, a due process claim turns on an agency’s failure to 

comply with a regulation that it adopted to protect the “fundamental statutory or 

constitutional rights of parties appearing before it,” a showing of substantial prejudice is 

not required. See, e.g., Freza v. Att’y Gen., 49 F.4th 293, 299 (3d Cir. 2022).

3

of reversal if it is not raised in the opening brief.”) (citing McCray v. Fid. Nat’l Title Ins. 

Co., 682 F.2d 229, 241 (3d Cir. 2012)).

3

 Oleka argues that the BIA erred by requiring that he show substantial prejudice to 

establish his due process claim. Because we hold that the IJ did not violate Oleka’s due 

process rights, we need not address this argument.
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A. Entry of the Bond Memo into the Evidentiary Record

Oleka argues that the IJ violated his due process rights by failing to make any de 

novo findings in the removal case related to the criminal charges against him, and 

introducing, sua sponte, the Bond Memo, which included findings related to the criminal 

charges. 

Section 1003.19(d) of the Code of Federal Regulations (“CFR”) provides that 

“[c]onsideration by the [IJ] of an application or request of a respondent regarding custody 

or bond under this section shall be separate and apart from, and shall form no part of, any 

deportation or removal hearing or proceeding.” 8 C.F.R. § 1003.19(d). 

The record shows that when Oleka’s counsel expressed concern over the marking 

of the Bond Memo for identification purposes, the IJ assured counsel that he would 

“[a]bsolutely” consider de novo the evidence supporting Oleka’s innocence regarding his 

prior criminal charges, with no reliance on the findings from the Bond Memo. A.R. 159–

60. Furthermore, the IJ’s opinion does not mention the Bond Memo. And Oleka does

not point to any findings of fact from the Bond Memo on which the IJ relied in ruling on 

Oleka’s removal relief. To the contrary, all the facts about Oleka’s arrest appear to come 

from Oleka’s seven-page declaration. And the opinion mentions nothing about Oleka 

being a danger to the community. Rather, the opinion demonstrates that the IJ made an 

adverse credibility finding against Oleka based on his testimony and his “evasive” and 

“vague” responses when presented with questions about his prior misrepresentations. 

App. 26. The IJ explained that Oleka’s responses on cross-examination showed a 

“failure [to] take responsibility . . . for the blatant misrepresentations made in his visa 
10

application.” Id. Thus, the IJ’s reasoning shows that the IJ did not rely on the Bond 

Memo during the removal hearing. Accordingly, we conclude that the IJ did not violate 

Oleka’s due process rights by marking the Bond Memo for identification. 

B. Denial of Oleka’s Motion for a Subpoena

Oleka argues that the IJ violated his due process rights by refusing to issue a 

subpoena for photographic evidence related to his criminal case. 

Section 1003.35 of the CFR provides that an immigration judge “shall” issue a 

subpoena, among other things, to produce documents if the IJ is satisfied that the 

evidence sought is “essential.” 8 C.F.R. § 1003.35(b)(3). Evidence is considered 

“essential” if it is relevant or helpful to the factfinder in resolving a contested issue. See, 

e.g., Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 273 (3d Cir. 2012) (concluding that 

documents regarding policies and procedures for conducting searches and seizures were 

essential to an alien’s claim of “egregious or widespread . . . constitutional violations by 

the Government” in opposition to her removal). 

To begin, Oleka’s request for a subpoena was untimely. The IJ could have denied 

the request for a subpoena on this basis. But rather than do so, the IJ heard argument on 

the motion and determined that DHS’s argument that there was enough alternative 

evidence to determine whether Oleka had sexually abused his daughter was more 

persuasive. In explaining why he found that Oleka lacked credibility, the IJ does not

mention the criminal charges. Rather, the IJ gave a detailed recount of Oleka’s “evasive” 

and “vague” responses to questions about his submission of false information. App. 26. 

Accordingly, Oleka has failed to show that any evidence to be acquired from the 
11

subpoena was essential. Thus, he cannot show that the IJ violated his due process rights 

by denying Oleka’s request for a subpoena.

C. Limitations on Direct Examination and Denial of the Motion to Reopen

Oleka argues that the IJ imposed unreasonable restrictions on the time and scope 

of his direct examination. Oleka also argues that the IJ’s denial of his motion to reopen 

precluded him from addressing the Government’s impeachment evidence. 

The INA gives immigration judges broad discretion in conducting proceedings. 

Matter of Jesus Interiano-Rosa, 25 I & N Dec. 264, 265 (BIA 2010). This discretion

includes whether to admit evidence. Id. The applicable regulations also provide that 

immigration judges “shall exercise their independent judgment and discretion and may 

take any action consistent with their authorities under the Act and regulations that is 

appropriate and necessary for the disposition of such cases.” 8 C.F.R. § 1003.10(b). But 

an IJ who interferes with a litigant’s right to present evidence on his own abuses that 

discretion and violates a litigant’s due process rights. See, e.g., Serrano-Alberto, 859 

F.3d at 214, 224–25 (concluding that an IJ’s “hostile and impatient attitude, repeated 

interruptions and castigations, constrictions on relevant responses, and inexplicable focus 

on irrelevant details” impaired the petitioner’s ability to present facts that, facially, 

supported the requested relief); see also Wang v. Att’y Gen., 423 F.3d 260, 269–71 (3d 

Cir. 2005) (concluding that an IJ’s “disparag[ing]” and “sarcas[tic]” tone during the 

petitioner’s removal hearing and consistent expression of disapproval regarding the 

petitioner’s personal life violated the petitioner’s due process rights). 
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Oleka’s argument that the IJ unreasonably restricted the scope of Oleka’s direct 

examination conflicts with the record. When the IJ interrupted and inquired into Oleka’s 

counsel’s line of questioning regarding the asylum application and assisting attorney, his 

counsel responded, “I’m laying a foundation for the withdrawal of documents and both 

the unlawful and ineffective advice given by his attorney around that.” A.R. 206. When 

the IJ reminded counsel that he granted her motion to withdraw the documents and that 

she could address them if the Government reintroduced them, counsel stated, “[o]kay, 

thank you, [Y]our [H]onor. Then we won’t ask questions about that right now.” Id. And 

counsel did in fact address the withdrawn documents on redirect after DHS introduced 

them on cross-examination. Thus, the record does not show that the IJ unduly restricted 

the scope of direct examination. 

Oleka also argues that during his direct examination, the IJ imposed unreasonable 

time restrictions. This argument also conflicts with the record. First, Oleka’s counsel 

originally requested an hour for direct examination. The IJ asked counsel to try to 

complete direct examination in 45 minutes but hedged that counsel could have the full 

hour if needed. And while Oleka is correct that at the 45-minute mark, the IJ interrupted 

and alerted counsel of the time, the IJ ultimately provided counsel with an hour and a half

to conduct direct examination. Second, Oleka’s counsel had a chance to conduct redirect 

after DHS cross-examined Oleka. Third and finally, in response to the motion to reopen

direct examination, the IJ provided Oleka another opportunity to establish facts by 

submitting a three-page declaration. And even though counsel exceeded the three-page 

limit by submitting a seven-page declaration, the detailed factual recitation in the IJ’s 
13

opinion shows that the IJ accepted and considered it. Therefore, we cannot conclude that 

the IJ’s limitations on direct examination and his decision to allow submission of a 

declaration in response to the motion to reopen, rather than live testimony, violated 

Oleka’s due process rights.

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D. The IJ’s Reliance on the Impeachment Evidence

Oleka argues that the IJ violated his due process rights by (1) allowing DHS to 

reintroduce, on cross-examination, Oleka’s visa and asylum applications, which Oleka’s 

counsel previously admitted and withdrew, and (2) relying on this impeachment evidence 

to support his adverse credibility finding. Oleka asserts that these rulings violated his due 

process because Oleka “had no opportunity to review and explain” any discrepancies in 

his applications. Oleka Br. 32. 

These arguments do not show that the IJ violated Oleka’s right to due process, for 

two reasons. First, Oleka’s assertion that he had no chance to review and explain this 

evidence is factually incorrect. Oleka’s counsel introduced the fraudulent documents for 

admission to evidence but then withdrew them. Thus, Oleka was aware of the evidence

and should have been prepared to address it. Second, after cross-examination, Oleka’s 

counsel conducted redirect and addressed the asylum application. Furthermore, Oleka’s 

counsel could have addressed any issues that she believed were insufficiently addressed

during redirect in Oleka’s seven-page declaration. Accordingly, Oleka has failed to show 

4 Together with Oleka’s direct examination testimony, the IJ also considered five

witnesses provided by Oleka. 
14

that the IJ’s reliance on the impeachment evidence violated his due process rights 

because Oleka’s counsel had sufficient opportunities to respond to the impeachment 

evidence. 

III. CONCLUSION

For the reasons above, we will deny the petition for review and affirm the BIA’s 

order dismissing the appeal.