United States Court of Appeals
For the First Circuit
No. 04-1824
BERNARD CHICKWENDU IBE,
Petitioner,
v.
ALBERTO GONZALES, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya, and Lynch
Circuit Judges.
Derege B. Demissie and Demissie & Associates on brief for
petitioner.
Deborah N. Misir, Trial Attorney, United States Department of
Justice, Civil Division, Office of Immigration Litigation, Peter D.
Keisler, Assistant Attorney General, Civil Division, and Julia Doig
Wilcox, Senior Litigation Counsel, on brief for respondent.
July 14, 2005
LYNCH, Circuit Judge. The only question presented is
whether an immigrant charged with removal (based on overstaying a
visa and on marriage fraud) was denied due process when the
Immigration Judge (IJ) during the removal hearing inadvertently
failed to record testimony of two witnesses but then recreated a
record of their testimony, with the assistance of counsel, from her
notes. There was no denial of due process. The petition for
review is denied. The effect of this, inter alia, is that Ibe will
be deported and barred from being granted future visa applications.
I.
Bernard Chickwendu Ibe, a native and citizen of Nigeria,
was admitted into the United States on July 24, 1997, as a non-
immigrant visitor with permission to remain in the country for six
months. He remained longer than permitted. On January 17, 2001,
the Immigration and Naturalization Service (INS)1 issued him a
notice of removability based on two grounds: his having overstayed
his visa, 8 U.S.C. § 1227(a)(1)(B), and his being an alien who
sought to procure an immigration benefit by willfully
misrepresenting a material fact through entering into a marriage
for the purpose of obtaining immigration benefits, 8 U.S.C.
1
On March 1, 2003, the INS ceased to exist and its principal
functions were transferred to the Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135,
2205 (codified as amended at 6 U.S.C. § 291(a)). We refer to the
agency as the INS throughout this opinion.
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§ 1227(a)(1)(A); 8 U.S.C. § 1182(a)(6)(C)(i).
At his initial removal hearing on May 1, 2001, Ibe
applied for adjustment of status to that of lawful permanent
resident based on his purported marriage to Tamar Ellis in 2000,
and in the alternative for voluntary departure. The IJ scheduled
a second removal hearing to adjudicate the marriage-fraud claim
(for Ibe admitted he had overstayed his visa). Testimony was heard
on several days from July to September 2002. Ibe testified, as did
his purported wife, Tamar Ellis, and two friends, Charles Iwejuo
and Stanley Chukweuzi. Iwejuo and Chukweuzi also submitted
affidavits. After the oral testimony of witnesses Iwejuo and
Chukweuzi, the IJ realized that she had accidentally forgotten to
tape record their testimony (which was consistent with their
affidavits), and from her notes and with help from counsel for both
sides, she restated on the record the substance of their
statements.
INS Special Agent Seth Plumb, the investigating officer
for Ibe's case, testified for the government. The government
entered into evidence Ibe's wife's withdrawal of her I-130 petition
filed on Ibe's behalf. The I-130 petition was a prerequisite to
his application for adjustment of status. See 8 U.S.C. § 1255(a).
The IJ rendered a decision on February 3, 2003, finding
the defendant removable both because he had overstayed his visa and
because he had entered into a marriage for the purpose of obtaining
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an immigration benefit. The IJ pretermitted Ibe's application for
adjustment of status because, due to the withdrawal of the I-130
petition, there was no approved visa petition for Ibe. Based on
the marriage-fraud finding, the IJ held that Ibe was permanently
barred from being granted a visa petition in the future, pursuant
to 8 U.S.C. § 1154(c)(1). The IJ also denied Ibe voluntary
departure because he had produced no evidence of a valid passport,
and therefore was statutorily ineligible for that relief, and in
the alternative denied voluntary departure as a matter of
discretion based on the marriage-fraud finding.
Ibe appealed the IJ's decision to the Board of
Immigration Appeals (BIA), arguing, inter alia, that the failure to
tape record the testimony of Iwejuo and Chukweuzi denied Ibe his
right to a full and fair hearing. On May 28, 2004, the BIA adopted
and affirmed the decision of the IJ. In addressing the claimed
unfairness of Ibe's hearing, the BIA found:
[Ibe] has not demonstrated any deficiency by
the [IJ] in applying legal standards, in
evaluating the testimonial and documentary
evidence presented, or otherwise in conducting
[her] hearings. Moreover, [Ibe] has not
demonstrated any resultant prejudice such as
would constitute a due process violation,
particularly in view of his failure to
establish eligibility for relief from removal.
Ibe timely petitioned for review of the BIA's decision.2
2
Alberto Gonzales was sworn in as Attorney General of the
United States on February 3, 2005. We have substituted him for
John Ashcroft, previous holder of that office, as the
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II.
On appeal, Ibe argues that the BIA's affirmance of the
IJ's decision without the full recorded testimony of Iwejuo and
Chukweuzi denied him his right to a full and complete
administrative review and violated his due process rights.
See Laurent v. Ashcroft, 359 F.3d 59, 62 (1st Cir. 2004). Our
review of whether the IJ's actions violated Ibe's due process
rights is de novo. Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st
Cir. 1999).
We reject Ibe's argument. True, the IJ has a "duty to
prepare a reasonably accurate, reasonably complete transcript,"
Ortiz-Salas v. INS, 992 F.2d 105, 106 (7th Cir. 1992); see 8 C.F.R.
§ 1240.47. That duty was met here. After the accidental failure
to record the testimony of two witnesses, the IJ created a record
of their testimony from her notes and their written statements with
assistance from both counsel and without objection. This does not
rise to the level of a due process violation. Ibe offers nothing
indicating that the record, as recreated, is inaccurate.
Further, Ibe has failed even to argue that he was
prejudiced by the error here, an essential requirement of a due
process claim. See Ortiz-Salas, 992 F.2d at 106. There could be
no prejudice as to Ibe's principal claim for adjustment of status,
because the IJ was correct in holding that he lacked the statutory
respondent. See Fed. R. App. P. 43(c)(2).
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predicate for that relief due to his wife's withdrawal of her I-130
petition on his behalf. See 8 U.S.C. § 1255(a).
The only effect of the marriage-fraud finding (the only
issue as to which Iwejuo's and Chukweuzi's testimony was relevant)
was the holding that Ibe would be barred from applying for a visa
in the future, pursuant to 8 U.S.C. § 1154(c)(1). Given Ibe's
counsel's admission that the content of the two witnesses'
testimony would provide nothing more than existed in their
affidavits, which are a part of the record, there could be no
serious claim of prejudice on this issue. We also find that the
BIA's affirmance based on this record neither violated Ibe's
statutory right to administrative review nor his right to due
process.
We affirm the decision of the BIA and deny the petition
for judicial review.
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