United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 3, 2010

Decided August 10, 2010

Before

Hon. Daniel A. Manion, Circuit Judge

Hon. Terence T. Evans, Circuit Judge

Hon. Diane S. Sykes, Circuit Judge

No. 09-3255

Jean Marie Vianney Mudahinyuka,

Petitioner,

v.

Eric H. Holder, Jr., Attorney General of the

United States,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals

A078-782-984

O R D E R

The Department of Homeland Security determined that Jean Marie Vianney

Mudahinyuka, a native of Rwanda, was subject to expedited removal proceedings because he had

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 09-3255 Page 2

committed an aggravated felony after his admission to the United States. He then applied for

withholding of removal and protection under the Convention Against Torture. Following a

hearing, an immigration judge denied the applications, and the Board of Immigration Appeals

dismissed Mudahinyuka’s appeal. Mudahinyuka petitions for review of the Board’s decision. 

For the reasons that follow, we deny the petition in part and dismiss in part for want of

jurisdiction.

I.

In September 2000, Mudahinyuka, a native and citizen of Rwanda, was admitted to the

United States as a refugee by using the alias Thierry Rugamba and claiming to be a victim of the

1994 Rwandan genocide. Over three years later, the Department of Homeland Security (“DHS”)

discovered Mudahinyuka’s true identity and that the Rwandan government had issued a warrant

for his arrest on charges of genocide and crimes against humanity. A criminal complaint was

filed, and immigration officers arrested him in May 2004. He pleaded guilty to four charges: (1)

evading the immigration laws by appearing under an assumed or fictitious name while applying

for admission, (2) knowingly making false statements under oath with respect to a material fact

in an application, (3) knowingly making a materially false, fictitious, or fraudulent statement in a

matter within the jurisdiction of the executive branch of the Government of the United States,

and (4) forcibly assaulting and resisting federal immigration officers engaged in official duties

using a deadly weapon and inflicting bodily injury. (The assault charge arose from the events

surrounding his arrest in May 2004.) The district court sentenced him to 51 months’

imprisonment. 

DHS revoked Mudahinyuka’s refugee status because he was ineligible for refugee status

at the time of his admission and determined that he was amenable to expedited removal

proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had been convicted of an aggravated

felony. The agency then issued a final administrative order that he be removed to Rwanda. But

before he could be removed, Mudahinyuka indicated that he fears persecution and torture if

returned to Rwanda because he has been accused of participating in the genocide. His claims

were referred to an asylum officer to determine whether he should be allowed to apply for

withholding of removal and protection under the Convention Against Torture (“CAT”). The

asylum officer determined there was a reasonable possibility Mudahinyuka would be subject to

persecution or torture in Rwanda and referred the case to an immigration judge (“IJ”). 

Mudahinyuka then applied for withholding of removal and protection under the CAT. 

Over the course of several hearings before an IJ, Mudahinyuka presented various

testimonial and documentary evidence in support of his claims, the relevant parts of which we

now recount. He admitted being a member of the National Republican Movement for

Democracy and Development (“MRND”), the ruling Hutu political party at the time of the

genocide, and serving as a leader for the Interahamwe, the MNRD’s youth militia. But he
No. 09-3255 Page 3

claimed he withdrew from the MNRD when the genocide of Tutsis began and denied

participating in it. He said he fears he will be persecuted or tortured if he returns to Rwanda

because the current government wrongly believes he, as a former MRND leader, took part in the

genocide. 

Mudahinyuka and his wife also testified about his May 2004 arrest. They averred that

they awoke to five armed officers barging into their bedroom and handcuffing them. They

denied that he resisted arrest, touched the officers’ weapons, and that any of the officers were

injured. 

Mudahinyuka sought to have Rwandan refugee Noel Twagiramungu, a doctoral candidate

in international relations and human rights at Tufts University and a lecturer at Harvard

University on genocide, designated as an expert on the Rwandan genocide and judicial system. 

Twagiramungu had previously served as an observer of the gacaca courts—tribunals set up by

Rwanda to adjudicate the thousands of genocide prosecutions—and written a master’s thesis on

the subject. He opined that Rwandan courts do not meet international standards of justice and

that Mudahinyuka would not receive a fair trial there if prosecuted for his purported involvement

in the genocide. He also testified that prison conditions in Rwanda are generally poor, that

political prisoners are more likely to be tortured than other prisoners, and that there is an eighty

percent chance Mudahinyuka will be tortured if removed to Rwanda. 

The evidence presented by the government painted a very different picture. It offered

documentary evidence of the international arrest warrant for Mudahinyuka and the seven-count

indictment issued by the Rwandan government charging him with genocide and crimes against

humanity. It also presented several witness statements and reports directly implicating

Mudahinyuka (also known as “Zuzu”) in the genocide. 

The government also elicited the testimony of immigration agents Gregory Carpenter and

John St. John, two of the officers who arrested Mudahinyuka in May 2004. Carpenter stated that

during the arrest, Mudahinyuka tried to take his shotgun and, in the process, struck him in the

forehead with the weapon, breaking his glasses and leaving a gash that required medical

attention. St. John gave a similar account and stated that, in attempting to subdue Mudahinyuka,

he suffered lacerations on his hand and a broken finger that necessitated six weeks of physical

therapy. 

Professor William Schabas, professor of human rights law at the National University of

Ireland, also testified on the government’s behalf. He opined that the Rwandan court in which

Mudahinyuka would be tried has fair-trial and right-to-counsel guarantees, that Mudahinyuka

would not have trouble finding free legal representation, that prison conditions are adequate and

improving, that torture and abuse of prisoners is rare and not tolerated by the Rwandan

government, and that Mudahinyuka is very unlikely to be tortured if removed. 
No. 09-3255 Page 4

At the conclusion of the hearings, the IJ denied Mudahinyuka’s applications for relief. 

The IJ held that Mudahinyuka is statutorily ineligible for withholding of removal under the

Immigration and Nationality Act because his conviction for assaulting federal officers was a

“particularly serious crime.” Alternatively, the IJ concluded that Mudahinyuka is barred from

relief under the Act because he participated in the persecution of Tutsis in the 1994 genocide. 

The IJ further held that even if the two statutory bars did not apply, Mudahinyuka was not

entitled to withholding of removal under the Act for the same reasons the IJ was denying his

claims under the CAT. 

Concerning Mudahinyuka’s claim for withholding of removal under the CAT, the IJ held

that the particularly-serious-crime bar also precluded relief under that provision. The IJ then

considered Mudahinyuka’s request for deferral of removal under the CAT and determined that he

had failed to demonstrate it is more likely than not he will be tortured if removed to Rwanda. In

reaching that conclusion, the IJ refused to recognize Twagiramungu as an expert because his

opinions did not meet the standards for expert testimony established in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). The IJ noted that although Twagiramungu had

observed national and gacaca Rwandan courts, he had not published any articles on the subjects

except for a master’s thesis a few years earlier. In addition, in concluding Twagiramungu’s

testimony had limited probative value, the IJ thought it significant that he had not observed

Rwandan courts for over five years (2004), had not observed Rwandan prisons since October

2003, cited no basis for his conclusion that Mudahinyuka faces an eighty percent chance of

torture, and derived his opinions from secondary sources and some contact with researchers in

Rwanda. 

Mudahinyuka appealed to the Board of Immigration Appeals. In dismissing his appeal,

the Board agreed with the IJ’s determination that Mudahinyuka is statutorily barred from

withholding relief under the Act and the CAT because his assault on immigration officers was a

particularly serious crime. The Board also determined that the record supported the IJ’s

alternative conclusion that Mudahinyuka is ineligible for withholding of removal because he

assisted in the 1994 persecution of Tutsis. In addition, it agreed that Twagiramungu should not

have been recognized as an expert witness and held Mudahinyuka did not qualify for deferral of

removal under the CAT because he had not proven he will more likely than not be tortured if

removed to Rwanda. Mudahinyuka petitions for review of the Board’s decision.

II.

The Board adopted and supplemented the IJ’s decision, so we review the IJ’s decision as

supplemented. Raghunathan v. Holder, 604 F.3d 371, 379 (7th Cir. 2010). But before we turn

to the arguments Mudahinyuka advances in his petition, we address our jurisdiction. Where, as

here, the Attorney General has determined an alien is removable under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having committed an aggravated felony, 8 U.S.C. § 1252(a)(2)(C)
No. 09-3255 Page 5

 Because Mudahinyuka has failed to successfully challenge the Board’s “particularly serious 1

crime” determination, we need not address his arguments challenging its alternative holding (based

on 8 U.S.C. § 1231(b)(3)(B)(i)) that he is ineligible for withholding of removal because he

participated in the persecution of Tutsis during the Rwandan genocide.

removes our jurisdiction to review a final order of removal. Vaca-Tellez v. Mukasey, 540 F.3d

665, 668 (7th Cir. 2008). But under 8 U.S.C. § 1252(a)(2)(D), we do retain jurisdiction to review

“constitutional claims or questions of law.” 

Mudahinyuka does not dispute that he committed an “aggravated felony” as that term is

defined in 8 U.S.C. § 1101(a)(43). He instead argues that the Board erred in concluding that he

is ineligible for withholding of removal under the Act and the CAT because his conviction on

count four of the indictment (assaulting federal immigration officers using a deadly weapon and

inflicting bodily injury) was a “particularly serious crime” under 8 U.S.C. § 1231(b)(3)(B)(ii). 

More specifically, he takes issue with the Board’s analysis of the 51-month sentence he received

in the criminal case and its apportionment of the imprisonment term to the assault count. But

that is not a constitutional claim, nor is it a pure question of law in the same vein as a “challenge[

] to the BIA’s interpretation of a statute, regulation, or constitutional provision, [a] claim[ ] that

the BIA misread its own precedent or applied the wrong legal standard, or [a] claim[ ] that the

BIA failed to exercise discretion at all.” Patel v. Holder, 563 F.3d 565, 568 (7th Cir. 2009). So

try as he might, Mudahinyuka’s framing of the issue cannot turn the question into one over which

we have jurisdiction. Therefore, we must dismiss that portion of his petition for want of

jurisdiction. See Petrov v. Gonzales, 464 F.3d 800, 802 (7th Cir. 2006) (dismissing for lack of

jurisdiction petition challenging Board’s determination an aggravated felony was also a

“particularly serious crime”).1

Mudahinyuka also argues that the Board erred in denying his request for deferral of

removal under the CAT. He contends that the Board’s denial was based on a legal error, namely

improperly applying a stricter standard than Daubert in refusing to recognize Twagiramungu as

an expert. That argument is based in large part on the IJ’s observation that Twagiramungu had

not published any articles on the Rwandan courts other than a master’s thesis. (Tab 55.) 

Federal agencies are not bound by the Federal Rules of Evidence but only “the looser

standard of due process of law.” Niam v. Ashcroft, 354 F.3d 652, 659 (7th Cir. 2004). So

Daubert, which interprets Federal Rule of Evidence 702, technically does not apply to

administrative proceedings. Id. at 660. We have said, however, that the “spirit of Daubert” does

apply and opined that it would be odd for an agency to use a standard for expert testimony that is

more rigorous than Daubert. Id. In Niam, in granting a petition for review challenging an IJ’s

summary exclusion of proffered expert testimony, we also observed that “[t]here is no ironclad

requirement that an academic, to be qualified as an expert witness, must publish academic books

or articles on the precise subject matter of her testimony.” Id.
No. 09-3255 Page 6

Here, contrary to Mudahinyuka’s portrayal, the IJ did not conclude that Twagiramungu

was unqualified to testify as an expert solely because he had not published any recent articles. 

True, he did mention that Twagiramungu had not published any articles on the Rwandan courts

lately. Under Daubert, a witness’s publication record is certainly a pertinent consideration. See

509 U.S. at 594. But the IJ did not treat that fact as dispositive; he also considered other facts,

including that Twagiramungu had not cited any authority for his opinion that Mudahinyuka faces

an eighty percent chance of torture, had not recently observed Rwandan courts and prisons, and

based his opinion on secondary sources and researchers in Rwanda. Mudahinyuka takes issue

with those bases, too: he claims that the IJ’s approach teeters on the slippery slope of requiring

disqualification of experts unless they have personally observed the relevant subject matter. 

Again, contrary to Mudahinyuka’s portrayal, the IJ did not adopt a per se rule that an expert must

have observed the subject matter; rather, the IJ considered the totality of Twagiramungu’s

experience to conclude he was not qualified as an expert. While Mudahinyuka takes issue with

that conclusion, our jurisdiction is limited to the purely legal question of whether the IJ erred in

applying an inappropriate standard for expert testimony, which he did not.

Mudahinyuka’s second argument pertaining to the denial of his deferral of removal

request is that the IJ, by repeatedly interrupting his attorney’s questioning of Twagiramungu and

eliciting more testimony than his attorney did, violated his due process rights. We again remind

alien petitioners that statutory claims should be resolved before constitutional claims. Figueras

v. Holder, 574 F.3d 434, 437 (7th Cir. 2009). “Aliens have a statutory right to a reasonable

opportunity to present evidence in their favor, 8 U.S.C. § 1229a(b)(4), and proceedings which

comply with statutory and regulatory requirements also satisfy due process.” Id. Whether the IJ

violated this statutory right is a question of law we have jurisdiction to consider under §

1252(a)(2)(D). Id. We examine the totality of the circumstances in assessing whether an alien

had a reasonable opportunity to present evidence. Rodriguez Galicia v. Gonzales, 422 F.3d 529,

538 (7th Cir. 2005). 

Under 8 U.S.C. § 1229a(b)(1), Congress has authorized immigration judges to serve as

both decision makers and prosecutors. Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th

Cir. 2007). Immigration judges have broad discretion to control the interrogation process in

order to discover the truth, subject to the alien’s right to a fair hearing. Id. A hearing is fair even

when an IJ asks the majority of questions and frequently interrupts, as long as his goal is to focus

the testimony and exclude irrelevant evidence. Id. at 887. After our review of Twagiramungu’s

testimony at the hearing, we are satisfied that the IJ’s interruptions and sometimes aggressive

questioning were so designed and that Mudahinyuka had a reasonable opportunity to elicit

testimony from Twagiramungu. But even if the IJ did cross the line and impede the presentation

of evidence, Mudahinyuka has failed to show prejudice because he has not identified what

evidence he was unable to present. Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006). 

Mudahinyuka’s vague protest of not having been “afforded the right to question his witness and

elicit testimony favorable to his position” does not suffice. See id. Accordingly, we deny the
No. 09-3255 Page 7

part of the petition raising constitutional claims and pure question-of-law issues concerning the

Board’s deferral of removal under the CAT.

III.

The portion of the petition raising constitutional claims and pure questions of law is

DENIED. The remainder is DISMISSED for want of jurisdiction.