In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-3188

STEPHEN BOSEDE,

Petitioner,

v.

JOHN ASHCROFT,

ATTORNEY GENERAL,

Respondent.

____________

On Petition for Review of an Order

of the Board of Immigration Appeals

____________

ARGUED APRIL 15, 2002—DECIDED OCTOBER 29, 2002

____________

Before ROVNER, DIANE P. WOOD, and EVANS, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. Stephen Bosede, a

Nigerian citizen, is a permanent resident of the United

States. Afflicted with drug addiction and now HIV-positive, Bosede unfortunately accumulated three felony convictions. After the third one, the INS initiated removal

proceedings against him. An Immigration Judge (IJ) held

a hearing and found that he was removable and ineligible for asylum, withholding of removal, or protection under the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (CAT),

23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985).
2 No. 01-3188

Bosede appealed this decision to the Board of Immigration Appeals (BIA), arguing that he was not removable

and alternatively that he was eligible for relief from

removal through either withholding of removal or by the

application of CAT. The BIA affirmed the IJ’s decision and

subsequently denied Bosede’s motion to reopen the decision. On appeal to this court, Bosede again argues that

he is eligible for withholding of removal. He also claims

that the hearing he was given failed to satisfy the due

process standards of the Fifth Amendment.

We find many aspects of the course of proceedings so far

quite disturbing. They purport to decide Bosede’s fate

based on a fundamental mistake of fact, brought about

through sloppy legal representation and a general failure

to follow up on information that would have brought the

mistake to light. Notwithstanding these serious flaws,

there is little this court can do under the system of review

Congress has established for these cases. For the reasons

we explain in this opinion, Bosede’s petition must be dismissed for want of jurisdiction, because he has not exhausted his administrative remedies.

I

Bosede has lived in the United States since 1980; since

1982, he has been a lawful permanent resident. Now 49

years old, Bosede is currently employed as a cabdriver.

He lives with his wife and two children, who are all United

States citizens. In 1997, Bosede and his wife were both

diagnosed as HIV-positive (i.e., infected with the virus that

causes AIDS), which requires a strict regimen of prescription drugs. Because of her illness, his wife is wheelchairbound and unable to work.

The INS charged that Bosede was removable based upon

three felony convictions. On December 13, 1993, Bosede

was convicted of a controlled substance offense; the INS
No. 01-3188 3

thought it was for possession with intent to deliver, although as we shall see, it may have been only for simple

possession. On April 13, 1995, he was convicted of possession of a controlled substance. Finally, on March 1,

2000, he was convicted of retail theft. Bosede retained

attorney Michael Cohen to represent him at the immigration proceedings. By all accounts, Cohen’s representation

was at best unhelpful. He failed to appear at multiple

hearings without any legitimate excuse. The IJ even chastised Cohen for not appreciating the seriousness of the

proceedings and “oversimplifying the issues.”

Despite his poor representation, Bosede tried to challenge the 1993 and 2000 convictions before the IJ. He

argued that the 2000 conviction was not an aggravated

felony because he did not serve a year in prison and because the facts underlying the offense (he had been caught

drinking a bottle of liquor in a store and allegedly did

not intend to pay for it) showed that it was minor. Bosede

also testified that the 1993 conviction, which the INS

asserted was for possession with intent to deliver, was

really only a conviction for possession. The INS based

its information on a “cover sheet” that reported the charge

as possession with intent to deliver. But the document

contained no record of either the indictment or the ultimate finding of guilt. Recognizing a potential conflict between Bosede’s testimony and the INS evidence, the IJ

stated:

I would think it might be incumbent upon the Service,

now that the respondent has denied that this cover

sheet is correct under oath, that they request investigations, go back to 26 in California and obtain the

indictment and check the docket sheet to see if there

was an amendment. I’m not requiring you do that.

But you’re confronted with testimonial evidence from

the respondent saying he pled it down. And then I’ll

make a decision.
4 No. 01-3188

The IJ then added, “I’m not positive that [the cover sheet

is] clear, convincing and unequivocal in light of the respondent’s denial under oath.” Despite this warning, neither

the INS nor Bosede introduced any additional evidence

regarding the 1993 offense. The IJ subsequently found

that Bosede was removable as an aggravated felon and

went on to consider his requested relief from removal.

Bosede offered three reasons why he should not be

removed from the United States: first, he was eligible for

asylum, second, he was eligible for withholding of removal, and finally, he was entitled to relief under the CAT.

In support of the first and third theories, Bosede claimed

that he would be persecuted as a Christian if he was

sent back to Nigeria. He pointed out that his parents

were killed by Muslim militants in 1969. Despite his many

attempts over the years, Bosede was never able to recover the property stolen from his parents. Bosede also

claimed that he would be detained and imprisoned upon

returning to Nigeria, which, given his medical condition,

would amount to a de facto death sentence (because of

both lack of access to the necessary medications and predictable violence from prisoners directed against HIVpositive individuals). He testified that he fears discrimination and possible torture if he returns to Nigeria as

an HIV-positive man. Although Bosede has returned to

Nigeria several times since he has been a resident of the

United States, this fear was based in large part on his 1999

trip to Nigeria.

In 1999, Bosede traveled to Nigeria to visit his grandparents’ graves with his wife. On that trip, he and his

wife brought with them a large amount of medication

(which, they stated, was not available in Africa). Suspicious airport officials detained them for two hours, until

Bosede alerted the officials to their HIV condition. They

were released after they agreed to stay in a particular

hotel. Although they initially went to the recommended
No. 01-3188 5

hotel, they later left it, fearing that they would be killed

because of their HIV status. After approximately a month’s

stay, they left Nigeria quietly through a neighboring country. Bosede testified that he believed that if he was sent

back, he would be detained or imprisoned and certainly

would be unable to find work because of his HIV status.

He presented background information on Nigerian prisons and the HIV epidemic. Finally, he submitted an

e-mail that indicated that the Nigerian government had

a policy of detaining persons with AIDS to curb the

spread of the disease. To counter this testimony, the INS

introduced evidence that the Nigerian government has

taken positive steps to address the HIV problem in Nigeria,

where the disease currently affects five percent of the

population.

The IJ was not impressed by Bosede’s evidence and

again chastised the attorney. “Mr. Cohen, you can’t win

cases without evidence. And all the cases I’ve read concerning aliens granted asylum based upon HIV-positive or

AIDS, there were tremendous amounts of background

evidence and reports submitted by the attorneys for the

aliens, all kinds of documentary evidence.” Cohen responded that such documentary evidence was merely

“double and triple hearsay” and later stated that the

government’s documents were “quadruple hearsay.”

In the end, the IJ concluded that Bosede was not entitled to relief from removal. He found that Bosede was

statutorily barred from asylum because his 1993 conviction (understood to be the trafficking offense, not the

possession offense) was an aggravated felony. The judge

also found Bosede ineligible for withholding of removal

under 8 U.S.C. § 1231, again relying on the contested 1993

conviction, which he concluded was per se a particularly

serious crime. Finally, he ruled that the evidence did not

establish that Bosede would be persecuted or tortured
6 No. 01-3188

upon his return to Nigeria, which meant that he was

ineligible for CAT relief.

Bosede filed a pro se appeal to the BIA. The BIA held

that the 1993 conviction was not a per se bar to withholding of removal, but (accepting the INS’s evidence

that it was a distribution offense) it agreed that the conviction was for a particularly serious crime, considering

the seriousness and danger of drug trafficking crimes.

It affirmed the IJ’s decision that Bosede was not entitled

to CAT relief because it agreed that Bosede had failed

to meet his burden of showing a likelihood of torture in

Nigeria. The BIA accordingly dismissed the appeal. It

later denied a motion that Bosede filed to reopen his

removal proceedings. Bosede now appeals the BIA order

dismissing the appeal to this court.

II

Bosede’s claim is governed by the rules of the Illegal

Immigration Reform and Immigrant Responsibility Act

of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009

(Sept. 30, 1996). Before proceeding to the merits we address the INS’s contention that we do not have jurisdiction to hear Bosede’s appeal because Bosede is removable

as a criminal alien. 8 U.S.C. § 1252(a)(2)(C) (“[N]o court

shall have jurisdiction to review any final order of removal

against an alien who is removable by reason of having

committed a criminal offense. . . .”). Although the INS has

accurately quoted the statute, matters are more complex than it is willing to admit. At a minimum, this court

retains jurisdiction to determine its own jurisdiction.

Flores-Leon v. I.N.S., 272 F.3d 433, 437 (7th Cir. 2001).

We have held before on a number of occasions that the

review-preclusion provisions in the 1996 amendments to

the immigration laws do not prevent us from determining whether the alien is being removed for a permis-
No. 01-3188 7

sible reason. Sandoval v. I.N.S., 240 F.3d 577, 580 (7th

Cir. 2001); Yang v. I.N.S., 109 F.3d 1185, 1192 (7th Cir.

1997). Under the Supreme Court’s decisions in CalcanoMartinez v. I.N.S., 533 U.S. 348 (2001), and I.N.S. v.

St. Cyr, 533 U.S. 289 (2001), it is also clear that Bosede

may not raise other constitutional or statutory challenges in a direct review petition, but that habeas corpus

under 28 U.S.C. § 2241 remains available for some such

claims. See Calcano-Martinez, 533 U.S. at 351. We are

therefore precluded from considering in the present appeal Bosede’s claim that his Fifth Amendment due process rights were violated in the proceedings before the

IJ, and we express no opinion on that argument.

Bosede now concedes that his 2000 theft conviction qualifies as an aggravated felony, see 8 U.S.C. § 1101(a)(43)(G),

that he is removable, see 8 U.S.C. § 1227(a)(2)(A)(iii),

and that he is ineligible for asylum relief, see 8 U.S.C.

§ 1158(b)(2)(A)(ii). We are therefore concerned only with

the BIA’s finding that he was ineligible for withholding

of removal and deferral under CAT because of the 1993

felony conviction.

Withholding of removal is governed by statute, 8 U.S.C.

§ 1231(b)(3)(A), and so we begin with the relevant language of that provision:

[T]he Attorney General may not remove an alien to

a country if the Attorney General decides that the

alien’s life or freedom would be threatened in that

country because of the alien’s race, religion, nationality,

membership in a particular social group, or political

opinion.

This relief is not discretionary. If an alien meets the

statutory criteria, the Attorney General must withhold removal. I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999).

The scope of the statutory entitlement to withholding

is limited, however, by § 1231(b)(3)(B)(ii), which states
8 No. 01-3188

that subparagraph (A) does not apply to an alien who has

been “convicted by a final judgment of a particularly serious crime.” It goes on to state that “an alien who has

been convicted of an aggravated felony (or felonies) for

which the alien has been sentenced to an aggregate term

of imprisonment of at least 5 years shall be considered

to have committed a particularly serious crime.”

The IJ found that Bosede was an aggravated felon who

had committed a particularly serious crime. His opinion makes it clear that the characterization of the 1993

conviction as an aggravated felony was critical to that

decision. The fact of the two drug convictions barred

Bosede from consideration for asylum, but, as we have

already noted, Bosede is not pursuing that claim on appeal. It is the IJ’s finding that one of his convictions was

for a “particularly serious crime” that precluded him

from eligibility for withholding of removal, and it is that

finding that Bosede is trying to challenge. The IJ’s opinion is crystal clear that the only offense of the three that

he thought was “particularly serious” was the 1993 conviction: “I determine, however, that the respondent’s conviction in 1993 for the possession with intent to deliver

is a particular serious crime.” The IJ also referred to the

fact that Bosede received a two-year sentence for the 1993

conviction.

At the time, all the IJ had to go on was Bosede’s testimony that the conviction was not for trafficking but instead was for simple possession, and the cover sheet

that the INS had produced that showed conviction on

charges of possession with intent to distribute. Apparently, the IJ concluded that the cover sheet standing

alone, even in the face of Bosede’s testimony, was “clear

and convincing evidence” of the nature of the prior conviction. Evidence it may have been, but it now appears

that it was also wrong. Before this court, Bosede has

produced the entire Cook County Certified Statement
No. 01-3188 9

of Conviction and Order of Sentence and Commitment to

the Illinois Department of Corrections. This four-page

official document indicates that Bosede was telling the

truth when he said that he had been convicted only of

simple possession, not possession with intent to distribute. Other details of the full record supply further corroboration of Bosede’s account. The charge and order of

conviction show that Bosede was convicted of possession or

“P.C.S.,” Ill. Rev. Stat. ch. 56.5 § 1402 ¶ C. Moreover, we

would have to assume that the state judge imposed an

unlawful sentence if we thought that the 1993 conviction was for possession with intent to distribute: the

statutory minimum sentence for the latter offense is

three years, see 730 ILL. COMP. STAT. 5/5-8-1(a)(5), and

Bosede received only a two-year sentence for his conviction (a lawful sentence for the simple possession offense).

Bosede contends that the IJ’s reliance on the incomplete “cover sheet” violated his statutory right to have

the Attorney General decide whether he was entitled to

withholding of removal under § 1231(b)(3)(A). He may

be right. This record gives us no confidence that the

agency’s decision on the withholding aspect of his petition

was correct or based upon a proper basis. Nevertheless,

for the reasons explained above, we express no final opinion on this point. This is the kind of argument Bosede

must submit first to the agency, either through a motion

to reopen or through some kind of petition to the district director. See Toptchev v. I.N.S., 295 F.3d 714, 721

(7th Cir. 2002). While the BIA has already denied one motion to reopen, as far as we know Bosede has never given

it the opportunity to take into consideration the full

Cook County Statement of Conviction that he presented

to this court. We hope that the agency would be open to

revisiting a critical issue like this one that may rest on a

fundamental mistake of fact. But no matter what, the

law entitles the INS to an initial opportunity to consider
10 No. 01-3188

the evidence and correct its error. Bosede would have to

consider other remedies, such as habeas corpus, only if

this avenue fails, although we also express no opinion

on whether he would be entitled to relief in a habeas

corpus proceeding.

Although we agree with the INS that Bosede’s claim

before this court must be rejected because he has not exhausted his administrative remedies, we reject its further argument that the errors below were harmless. See

Shahandeh-Pey v. I.N.S., 831 F.2d 1384, 1389 (7th Cir.

1987); see also Kuciemba v. I.N.S., 92 F.3d 496, 501-02

(7th Cir. 1996). Bosede may well have been prejudiced by

the IJ and BIA determinations that he committed a

“particularly serious crime” in 1993. If they re-evaluate

his case on the corrected assumption that the 1993 crime

was merely for possession, it seems likely that he would

be eligible for a decision on withholding of removal (though

we cannot say what decision the Attorney General would

make on the merits).

The INS has also offered the alternative argument that

Bosede’s multiple convictions for possession add up in

the aggregate to one particularly serious crime. If what

this means is that multiple convictions for possession for

which the cumulative sentences add up to less than five

years are per se classified as “particularly serious crimes,”

this is incorrect. See, e.g., In re L-S-, 22 I. & N. Dec. 645

(B.I.A. 1999) (A per se rule for particularly serious

crimes would conflict with Congressional intent to eliminate any presumption that all aggravated felonies are

also particularly serious crimes for withholding of removal purposes); see also Yousefi v. I.N.S., 260 F.3d 318,

328 (4th Cir. 2001) (applying a series of factors to consider when identifying whether a conviction is a particularly serious crime). We have no idea whether the BIA

could, or would, decide that two particular possession

convictions were equivalent to one particularly serious
No. 01-3188 11

crime, but it is entitled to make that kind of individualized determination in the first instance.

For his part, Bosede asks that we simply take judicial

notice of the Statement of Conviction and resolve everything here. Although we have taken judicial notice of

court documents from state proceedings before, see Opoka

v. I.N.S., 94 F.3d 392, 394 (7th Cir. 1996), we do not find

it appropriate in this case. First, a court simply cannot

reverse an agency on the basis of evidence that is not in

the administrative record. Second, we will take notice

only of facts “not subject to reasonable dispute.” FED. R.

EVID. 201. Bosede has shown that there is a conflict between the certified cover sheet the INS used and the

certified Statement of Conviction, but we are ill-equipped

to reconcile the two documents. We will not consider

this issue in the first instance. Singh v. Reno, 182 F.3d

504, 511 (7th Cir. 1999).

III

Although there appear to be serious flaws in the INS’s

consideration of Bosede’s petition for withholding of removal, he must present the facts that underlie his claim

to the agency before this court can do anything. Because

he has not exhausted his administrative remedies, we

DISMISS the petition for lack of jurisdiction.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-29-02