In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2201

ADEOYE ORIADE ADEBOWALE,

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. A98-814-677

ARGUED AUGUST 5, 2008—DECIDED OCTOBER 24, 2008

Before POSNER, COFFEY, and MANION, Circuit Judges.

COFFEY, Circuit Judge. Adeoye Adebowale, a Nigerianborn citizen of the United Kingdom, was ordered

removed after he failed to appear at the scheduled hearing. Shortly thereafter he filed a motion to reopen

his asylum proceedings. The immigration judge (IJ)

denied the motion, and the Board of Immigration Appeals

(BIA) upheld that decision. Adebowale petitions this
2 No. 07-2201

Adebowale did not elaborate on this point other than to 1

assert that “there is a pervading view in the U.K. police that

all persons of Nigerian origin are frauders and/or have a

propensity for such.”

court for review, but this court lacks jurisdiction because

his challenge is only as to questions of fact not questions

of law underlying the discretionary decision on his motion.

Adebowale, who purports to be a solicitor, claims that he

was persecuted on account of his race, nationality, and

membership in a social group. He explains that in

August 2001 police in London arrested and detained

him for thirteen hours on suspicion of using a stolen

credit card, a crime he says he did not commit. He

alleges that this arrest was part of a campaign by British

police to harass him with unsubstantiated criminal

charges because of his reputation as a human-rights

advocate and because of their belief that his Nigerian

ethnicity makes him a “fraudster.” Adebowale was 1

admitted into the United States in December of 2004

under the Visa Waiver Program, but he failed to depart

by the required date, March 2005. Just one week after

the deadline for his departure, he applied for asylum

and withholding of removal. At a status hearing before

the IJ, he was notified in person that his asylum hearing

would be conducted on September 7, 2006. Also,

Adebowale was personally served with written notice

of the hearing date.

Adebowale failed to appear at the September 7 hearing

and was ordered removed in absentia. The next day,
No. 07-2201 3

September 8, 2006, he appeared at the building where

his hearing was to have been conducted and, after speaking with the staff, he filed a handwritten motion to

reopen. He claimed that he misread the notice of his

hearing and thought that the hearing was set for

September 9, not September 7. Without elaborating, he

stated that his mistake might have resulted from an

alleged disorientation accompanying a “viral infection”

during the previous week and the stress of his being

“threatened with homelessness.”

In denying Adebowale’s motion, the IJ concluded that

Adebowale had received adequate notice of the asylum

hearing and had failed to demonstrate the exceptional

circumstances required to excuse his absence. The IJ

pointed out in his decision that Adebowale’s illness

could not have left him bedridden or have been so

severe because he was able to personally appear and file

his motion to reopen on the following day, September 8.

And, the IJ continued, Adebowale presented no evidence

(much less offered any details) in substantiation of his

alleged illness. Additionally, the IJ noted the absence of

evidence suggesting that a threat of eviction prevented

Adebowale from attending his hearing. In contrast, the

IJ said, the September 7 hearing date was clearly set forth

in the written notice to appear that Adebowale had received. Furthermore, he was also advised of the location,

date, and time of the hearing in person at the prior

status hearing, and at that earlier hearing Adebowale

confirmed that he understood the date and the consequences of failing to appear. The BIA upheld the IJ’s

decision, noting the lack of evidence to substantiate the

allegations set forth in Adebowale’s motion to reopen.
4 No. 07-2201

Adebowale petitions for review of the denial of his

motion to reopen. Where the decision of the BIA relies on

the decision of the IJ, we review the decision of the IJ as

supplemented by the BIA. Terezov v. Gonzales, 480 F.3d

558, 560 (7th Cir. 2007); see also Oryakhil v. Mukasey, 528

F.3d 993, 998 (7th Cir. 2008). This court lacks jurisdiction

to review decisions on motions to reopen except constitutional claims or questions of law. Huang v. Mukasey,

534 F.3d 618, 620 (7th Cir. 2008); Kucana v. Mukasey, 533

F.3d 534, 535-37 (7th Cir. 2008). A question does not

become “constitutional” or “legal” just because its resolution involves the application of a legal standard; otherwise, nearly all factual determinations would fall within

our jurisdiction despite Congress’ mandate to the contrary. See Huang, 534 F.3d at 620; Kucana, 533 F.3d at 536-37.

Rather, a legal question arises when the BIA has misinterpreted a statute, regulation, or constitutional provision,

misread its own precedent, applied the wrong legal

standard, or failed to exercise its discretion. Huang, 534

F.3d at 620; see Khan v. Mukasey, 517 F.3d 513, 517-18 (7th

Cir. 2008); Zamora-Mallari v. Mukasey, 514 F.3d 679, 694 (7th

Cir. 2008); Bosede v. Mukasey, 512 F.3d 946, 950-51 (7th

Cir. 2008). Adebowale has failed to present either

a constitutional or legal claim.

First, Adebowale quibbles with the determination that

his failure to appear was not justifiable. In his filing, the

petitioner states that the IJ and BIA failed to give

adequate consideration to his allegation of illness and

did not properly investigate and weigh the circumstances

that supposedly kept him from attending. But as this

court said in Huang, 534 F.3d at 621, a disagreement with
No. 07-2201 5

the weight assigned by the immigration courts to

particular evidence does not present a question of law.

See also Kucana, 533 F.3d at 536-37; Khan, 517 F.3d at 517-18.

Second, Adebowale contends that the IJ and BIA applied

a de facto requirement that he produce medical records

to substantiate his allegation of illness. By doing so, he

argues, the IJ and BIA discriminated against him because

he cannot afford to pay for medical services. But

Adebowale misrepresents what actually transpired

before the IJ. The IJ did not demand medical evidence, but

instead noted that the lack of any corroborating

evidence, including medical records, harmed the credibility of Adebowale’s factual allegations. Adebowale

did not even describe the symptoms that he suffered or

explain why his illness prevented him from attending

the hearing or accurately reading the date on the

hearing notice. Indeed, Adebowale said only that he

suffered from a “viral illness” that disoriented him and

possibly contributed to his mistake. Adebowale’s argument on this point really is an attempt to have this court

reconsider whether his assertions, standing alone, constituted compelling evidence of a serious condition that

prevented him from attending the hearing, and that is a

factual question not premised on any legal mistake on

the part of the IJ or BIA. See Zamora-Mallari, 514 F.3d at

694 (explaining that petitioner cannot disguise legal

argument as factual one). As we pointed out earlier, this

court lacks jurisdiction over this argument as well.

Finally, Adebowale argues that the notice to appear

for his September 7 hearing was inadequate and thus
6 No. 07-2201

violated his right to due process because it incorrectly

stated that he was scheduled for a removal hearing when

he was actually scheduled for an asylum hearing. (That

does not, of course, explain his failure to appear.) He also

contends that the notice of the IJ’s in absentia order of

removal violates his right to due process because it

does not state that the decision was in absentia and

also says that his claims were denied rather than deemed

abandoned. These arguments are nothing but another

attempt to invoke our jurisdiction when there is in fact

no legal question at stake. Regardless what Adebowale’s

notice designated the hearing as, the notice was clear

that he had to appear. Equally clear were the admonishments delivered by the IJ. And Adebowale’s allegations

about the specific language in the order of removal are

irrelevant because he already had moved to reopen the

proceedings on September 8, before the written order of

removal was even issued. Thus, the language in the

order of removal was clear and could not have had

any bearing on his actions. Adebowale’s alleged

misdesignation of the nature of the hearing could not

possibly implicate due process, and that word choice

is inadequate to make legal questions of his arguments.

See Zamora-Mallari, 514 F.3d at 694. This court lacks

jurisdiction over these contentions as well.

DISMISSED.

10-24-08