Eke, Prince H. v. Mukasey, Michael B.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 06-3391

PRINCE HENRY EKE,

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. A97-322-428.

____________

ARGUED MAY 29, 2007—DECIDED JANUARY 7, 2008

____________

Before BAUER, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. Facing expedited removal from

the United States as an alien convicted of committing

an aggravated felony, Prince Henry Eke filed this petition

for review from the decision of the Board of Immigration

Appeals (“BIA” or Board) rejecting his request for with-

holding of removal. Initially, the Board argued before

this court that we lacked jurisdiction to consider Eke’s

arguments. After oral argument, however, the Attorney

General withdrew that argument and, with the court’s

permission, filed a supplemental brief defending the

Board’s decision on the merits. Eke filed a response to

2 No. 06-3391

that brief on November 28, 2007, and so the case is now

ready for decision.

Eke claims that if he is returned to his native Nigeria,

it is more likely than not that he will be harmed seriously

or even killed, because he is homosexual. The Board

rejected this assertion, relying primarily on adverse

credibility determinations; it found that Eke was sub-

ject to summary removal based on his guilty pleas to

three crimes of theft of financial identity. Before this

court, Eke now presents four reasons in support of his

petition: (1) his convictions were not for crimes that

fall within the definition of “aggravated felony” under

8 U.S.C. § 1101(a)(43)(M)(i); (2) he should not have been

required to provide corroborating evidence of his homo-

sexuality; (3) the Board should have considered the pat-

tern of persecution against homosexuals in Nigeria; and

(4) Eke’s due process rights were violated when the

Immigration Judge (“IJ”) insisted on conducting the

hearing on the merits by video conference. We conclude

that the government correctly conceded that we have

jurisdiction over the petition, but that Eke’s claims fail on

their merits. We therefore deny his petition for review.

I

Eke is a 40-year-old native of Nigeria and member of

the Ibo tribe. He claims to be a homosexual. Eke reported

that he had a long-term sexual relationship with a male

companion, Gozie, in Nigeria. Even though he tried to

keep his sexual orientation a secret, Eke claimed that

others in his community saw through his efforts, and

he was, as a result, frequently harassed. According to

Eke, his community’s traditional law forbids homosex-

uality and regards it as punishable by death. After Eke’s

father was named king of his village, Eke allegedly be-

came a prince and thus was responsible for certain cere-

No. 06-3391 3

monial duties. Bowing to pressure from his family, he

at that time married a childhood friend, Rose Mary, and

accepted her two children as his own. The record indicates

that these children, in fact, were his own. The IJ noted

that Eke’s testimony on this point shifted over time. On

direct examination, he admitted that he had fathered

the children but initially had disclaimed paternity “be-

cause he did not want (them) and thought it was incred-

ible that he had children. However, on cross examination,

[Eke] testified that he never consummated the marriage

and that he did not have any physical relationship with

Rose Mary. Later during his cross examination,” Eke

“testified further that he did in fact have sexual rela-

tions with Rose Mary, on at least two occasions, and that

he did have two children with her.” Eventually, the

marriage failed, after Rose Mary discovered Eke and his

lover Gozie in flagrante delicto. At that point, Eke was

forced to flee his village. He took refuge in an isolated

village for three years, until he obtained the documenta-

tion needed to come to the United States, which he be-

lieved would be more accepting of his sexual orientation.

Once in the United States, he lived briefly with his

sister, but, he testified, she asked him to leave because

of his gay lifestyle. This rejection prompted him to divorce

his Nigerian wife and to marry an American woman. The

latter wife also discovered that he was gay and ended

the relationship.

In 2004, Eke made the mistake of trying to help a friend

buy a used car with false documentation. He presented

another person’s social security card, a permanent resi-

dence card, an Illinois driver’s license, and a state ID card,

in an effort to purchase an automobile worth more than

$10,000. Caught in the act, Eke pleaded guilty to con-

spiring to violate the Illinois identity theft statute, 720

ILCS 5/16G-15(a), and to two substantive counts of

identity theft. On April 27, 2005, the Department of

4 No. 06-3391

Homeland Security (“DHS”) served Eke with a Notice of

Intent To Issue a Final Administrative Removal Order,

based on those convictions. Although at one point Eke

claimed that he never received this Notice, the govern-

ment has now furnished a copy of it, and the copy

shows clearly that Eke acknowledged service. More

than that, the copy shows that Eke, by checking some

boxes on the form, admitted the allegations in the

Notice, admitted that he was deportable, waived his

right to contest the charges, and designated Nigeria as

the country to which he would be removed. Notwith-

standing these representations, Eke then expressed a fear

of persecution upon removal to Nigeria. DHS responded

by putting Eke in proceedings for withholding of removal.

An asylum officer found that Eke’s fear was reasonable,

but the IJ rejected his petition after a full hearing. The

BIA agreed with the IJ, and Eke now presents his peti-

tion for review.

II

Although the government has now withdrawn its

challenge to this court’s jurisdiction, we have a duty

independent of its concession to assure ourselves that

jurisdiction is secure. We therefore begin by explaining

why we too have concluded that we have jurisdiction

over this petition.

This case arose under the provisions of the Immigra-

tion and Nationality Act (“INA”) that authorize expedited

removal of certain aliens who have been convicted of

committing aggravated felonies. See INA § 238(b), 8 U.S.C.

§ 1228(b). Critically, section 238(b) allows a final removal

order to issue without a hearing for the alien. Expedited

removal begins with formal notice served on the alien. See

8 U.S.C. § 1228(b)(4) (“The Attorney General shall pro-

vide that . . . the alien is given reasonable notice of the

No. 06-3391 5

charges and of the opportunity [to inspect the evidence

and rebut the charges].”); 8 C.F.R. § 238.1 (“Removal

proceedings . . . shall commence upon personal service of

the Notice of Intent upon the alien . . . .”) (emphasis

added).

As we noted, DHS served Eke with a Notice of Intent

To Issue a Final Administrative Removal Order on

April 27, 2005. The Notice provided, consistently with

8 C.F.R. § 238(b)(2)(i), that Eke had 10 calendar days in

which to respond to the charges. For an alien who does

not file a response, the regulations provide that DHS

may follow up with a Final Administrative Removal Order.

8 C.F.R. § 238.1(d). Eke’s Notice informed him that he

would be entitled to “seek judicial review of any final

administrative order by filing a petition for review within

14 calendar days after the date such final administra-

tive order is issued.” DHS in fact issued its Final Order

in Eke’s case on May 5, 2005. Although Eke did not seek

independent judicial review of that determination, what

happened next was that DHS referred him for a credible-

fear interview, based on his statement that he believed

that he would be killed or injured upon his return to

Nigeria because of his sexual orientation. An Asylum

Officer from DHS’s Citizenship and Immigration

Services office interviewed him on June 2 and 30, 2005,

and determined that Eke had demonstrated a reasonable

fear of persecution. His case was then referred to the

Immigration Court on July 19, 2005, for consideration of

his petition for withholding of removal.

An IJ held a hearing on July 26, 2005, at which he

considered Eke’s eligibility for both withholding of re-

moval and relief under the Convention Against Torture.

With respect to the former, the IJ noted that Eke had the

burden of demonstrating a clear probability of persecution

in Nigeria on account of his race, religion, nationality,

membership in a particular social group, or political

6 No. 06-3391

opinion. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). In

a written decision dated May 23, 2006, the IJ found

that Eke failed to meet that burden. The record, the IJ

thought, was riddled with inconsistencies going to the

heart of Eke’s claims; at one point Eke fraudulently

entered into a marriage in order to obtain a benefit

under the immigration laws; and Eke never sought

asylum until after he had committed the aggravated

felony. Eke’s testimony was not even clear on such a

major point as how and why his son was killed at the

hands of the village elders. The IJ also found that Eke’s

commission of the crimes of identity theft independently

barred him from withholding of removal, as those crimes

were particularly serious, that Eke had not shown a clear

probability of future persecution based on his sexual

orientation, and that he had failed to show that the

threat of persecution he faced existed throughout the

country. On the last point, the IJ noted that Eke’s claim

that he could not relocate was not objectively reasonable,

in light of the fact that he had remained in Nigeria for

three years in a different village without apparent dif-

ficulty. The BIA affirmed the IJ’s decision and denied

Eke’s motion to remand the matter to the IJ in a decision

dated August 31, 2006.

Eke filed a timely petition for review from the BIA’s

order. We are satisfied that the Attorney General is cor-

rect that the immigration authorities were not finished

with Eke’s case until the BIA’s final decision, and thus

we are authorized to consider the question whether DHS

correctly determined that Eke’s state court convictions

were “aggravated felonies” for purposes of the immigra-

tion laws. The Real ID Act, 8 U.S.C. § 1252(a)(1)(D), put an

end to any doubt on the matter. Moreover, even before

that, we had explained that “we retain jurisdiction to

determine whether we have jurisdiction—that is, to

determine whether an alien’s criminal conviction is

No. 06-3391 7

indeed an ‘aggravated felony’ under the INA, thereby

triggering the jurisdictional bar of § 1252(a)(2)(C).” Lara-

Ruiz v. INS, 241 F.3d 934, 938-39 (7th Cir. 2001).

Even though we lack jurisdiction to review the Attorney

General’s exercise of discretion to grant or deny relief to

an alien, we have the authority to decide constitutional

claims and questions of law. See 8 U.S.C. § 1252(a)(1)(D);

Ali v. Achim, 468 F.3d 462, 465 (7th Cir. 2006). Our

review of the determination that Eke committed an

aggravated felony is de novo. Lara-Ruiz, 241 F.3d at 938-

39. Our review of the legal standards that the IJ and BIA

applied is also de novo. Gattem v. Gonzales, 412 F.3d 758,

763 (7th Cir. 2005).

III

On the merits, the government argues first that Eke

conceded that he was deportable for having been con-

victed of an aggravated felony, and that should be the

end of it. Eke responds that the Notice presented to him

did not indicate that he could contest the characteriza-

tion of his offenses, and thus that he should not be found

to have waived an argument that he never knew he had.

Moreover, Eke points out, the government did not make

its own waiver argument in its initial brief in this case,

and thus we should find that it has forfeited its waiver

argument. Given the shifts in position that have occurred

in this case, we prefer not to resolve it on waiver grounds,

either way. We are satisfied that Eke has been trying

to raise the argument that his convictions, for various

reasons, should not automatically lead to his removal.

Both sides have now briefed the merits of this point, and

so we see no reason not to reach them.

Eke contends that he was not convicted of an “aggra-

vated felony,” as defined by 8 U.S.C. § 1101(a)(43), because

8 No. 06-3391

there is an incomplete overlap between the Illinois law

identity theft statute under which he was convicted, which

encompasses cases where a criminal has obtained $10,000

or more in “credit, money, goods, services, or other prop-

erty,” and the relevant INA section, which requires “a

loss to the victim or victims [that] exceeds $10,000.” See

720 ILCS 5/16G-15; 8 U.S.C. § 1101(a)(43)(M)(i).

To determine whether any of Eke’s convictions amounts

to a conviction for an “aggravated felony,” we follow the

“categorical approach.” Hashish v. Gonzales, 442 F.3d 572,

575-76 (7th Cir. 2006). The Ninth Circuit did the same

in a case very similar to the one now before us:

We first make a categorical comparison between the

generic crime—here, an “aggravated felony,” defined

as an offense that “involves fraud or deceit in which

the loss to the victim or victims exceeds $10,000,”

8 U.S.C. § 1101(a)(43)(M)(i)—and the elements of

each particular offense of which Petitioner was con-

victed. If the statutory crime of conviction is broader

than the generic crime (that is, if Petitioner could have

been convicted under the statute for conduct that

would not satisfy the generic crime) then we must

move to the ‘modified categorical approach’:

Under the modified categorical approach, we conduct

a limited examination of documents in the record of

conviction to determine if there is sufficient evidence

to conclude that a defendant was convicted of the

elements of the generically defined crime even

though his or her statute of conviction was facially

overinclusive.

Li v. Ashcroft, 389 F.3d 892, 895-96 (9th Cir. 2004) (inter-

nal citations and quotation marks omitted). Other circuits

employ the same analysis. For example, the First Circuit

observed in Conteh v. Gonzales, 461 F.3d 45 (1st Cir.

2006), that

No. 06-3391 9

[t]he INA does not prescribe a detailed methodology

for determining whether a predicate offense fits

within these definitions (and, thus, qualifies as an

aggravated felony). Where uncertainty exists, however,

virtually every court of appeals faced with the ques-

tion has sought some form of guidance from the

categorical approach devised by the Supreme Court

for use in the criminal sentencing context. The BIA

has followed suit, citing the leading Supreme Court

precedent, Taylor v. United States, 495 U.S. 575

(1990), in a number of aggravated felony decisions.

461 F.3d at 52 (citations omitted).

The INA includes many offenses within its definition of

“aggravated felony,” but only one is relevant to Eke’s case:

“an offense that—(i) involves fraud or deceit in which the

loss to the victim or victims exceeds $10,000 . . . .” INA

§ 101(a)(43)(M)(i); 8 U.S.C. § 1101(a)(43)(M)(i). We must

therefore determine whether Eke’s Illinois convictions

met these criteria, by looking at the “terms of the charg-

ing document, the terms of a plea agreement or tran-

script of colloquy between judge and defendant in which

the factual basis for the plea was confirmed by the de-

fendant, or to some comparable judicial record of this

information.” Shepard v. United States, 544 U.S. 13, 26

(2005). Two elements stand out: first, did the offense

involve fraud or deceit; and second, was “the loss to the

victim or victims” more than $10,000. Although at one

point, Eke had argued that his conspiracy conviction did

not involve an amount over $10,000, he has now with-

drawn that argument. We thus analyze all three convic-

tions together.

The relevant Illinois statute bars using another per-

son’s identity information “to fraudulently obtain credit,

money, goods, services, or other property.” 720 ILCS

5/16G-15(a). The record here includes an indictment

10 No. 06-3391

from the Grand Jury in Cook County, Illinois, charging

that Eke violated this statute when he

knowingly used any identification document, to wit:

social security card and naturization [sic] permanent

residency card of another person, Peace Ralston[,] to

fraudulently obtain credit, money, goods, services, or

other property, to wit: an automobile in the name of

Peace Ralston and the value of the credit, money,

goods, services, other property exceeded ten thousand

dollars but did not exceed one hundred thousand

dollars . . . .

Another count of the indictment alleged a violation of

5/16G-15(a) with the use of “Illinios [sic] driver’s lecense

[sic] and Illinois state ID of another person, Peace

Ralston.” Finally, the third count of the indictment

charged Eke with conspiracy to commit a financial crime,

in violation of 720 ILCS 5/16H-45, in that he “had

personal information of Peace Ralston mailed to his post

office box on two occasions in furtherance of that agree-

ment with Sabina Olapindo and presented said docu-

ments of Peace Ralston to purchase an automobile as part

of a common scheme . . . .” There is also a “Certified

Statement of Conviction/Disposition,” which lists the

three charges as follows:

720-5/16G-15(a) . . . F . . . . FIN ID THEFT $10,000<$100,000

720-5/16G-15(a) . . . F . . . . FIN ID THEFT $10,000<$100,000

720-5/16H-45 . . . . . F. . . . FIN CRIME/CONSPIRACY/>10K-

100K

Eke argues that these convictions punish frauds in

which the value of the credit or item exceeded $10,000,

but that the aggravated felony that DHS identified

focuses on a loss to the victim that exceeds $10,000.

Here, Eke continues, he never actually “obtain[ed] credit,

money, goods, services, or other property” through his

No. 06-3391 11

attempted use of Ralston’s identity. At most, he at-

tempted to obtain credit and goods through the use of

Ralston’s documents, but his efforts were unsuccessful. (As

we read his arguments, Eke concedes that the Illinois

convictions involved fraud or deceit, and so we focus

only on the monetary element.)

The government agrees that a categorical approach is

proper, citing Taylor v. United States, 495 U.S. 575, 602

(1990), as modified by Shepard v. United States, 544 U.S.

13, 26 (2005), and as applied to immigration cases in

Espinoza-Franco v. Ashcroft, 394 F.3d 461, 465 (7th Cir.

2006), superceded by statute on other grounds, as stated in

Hamid v. Gonzales, 417 F.3d 642, 647 (7th Cir. 2005).

Relying on INA § 101(a)(43)(U), which includes in the

definition of “aggravated felonies” covered by the Act “an

attempt or conspiracy to commit an offense described

in this paragraph,” the government argues that Eke’s

Illinois convictions fall within the Act’s definition. Even

though Illinois was not prosecuting Eke for attempted

identity theft, it did prosecute him for conspiracy, and so

§ 101(a)(43)(U) is directly implicated. The documents

we are entitled to consult show that he conspired to

obtain more than $10,000 in valuable goods or services

through his fraudulent acts; they also support a showing

that he attempted to commit the felony identified by

subsection (M).

Eke’s conviction for conspiracy is enough by itself to

justify our looking to the full amount of the loss Eke

intended to inflict. We therefore need not decide wheth-

er § 101(a)(43)(M), standing alone, refers only to actual

loss or to intended loss. Over the objection of one member

of the panel, the Ninth Circuit suggested in dicta that

subsection (M) in isolation does not include intended loss.

See Kharana v. Gonzales, 487 F.3d 1280, 1282 n.3 (9th Cir.

2007). But see id. at 1286 (Wallace, J., concurring). For

what it is worth, we think that Judge Wallace, who

12 No. 06-3391

argued that intended loss could be considered for sub-

section (M), had the better of the exchange. The definition

of the term “aggravated felony” appears in § 101(a)(43) as

a whole; each of that section’s subparts contributes to

the definition, including subpart (U), which adds to

everything that went before “an attempt or conspiracy to

commit an offense described in this paragraph.” In general,

courts should give effect to all parts of the statute. Fur-

thermore, reading subsection (M) to include intended loss

is consistent with the way that loss is defined for purposes

of the sentencing guidelines. This court has held that the

guidelines call for the use of intended loss in fraud cases,

where intended loss is greater than actual loss. United

States v. Saunders, 129 F.3d 925, 932 (7th Cir. 1997).

Indeed, an unused line of credit is generally viewed as an

intended loss. See, e.g., United States v. Mei, 315 F.3d 788,

792 (7th Cir. 1993) (“[I]n determining an intended loss

courts focus on the amount that the scheme placed at risk,

not the amount of money or property stolen.”); United

States v. Lin, 410 F.3d 1187, 1191-93 (10th Cir. 2005)

(estimating intended loss in credit card fraud by aggregat-

ing the limits on the unused credit cards); United States v.

Sowels, 998 F.2d 249, 251 (5th Cir. 1993) (calculating loss

from credit card fraud as the aggregated credit limits of

the cards).

The charging documents and the record of conviction

show that Eke pleaded guilty to using and to conspiring

to use someone else’s identifying information to obtain

“credit, money, goods, services, or other property” in an

amount exceeding $10,000. We therefore hold that the

Attorney General relied on a permissible conviction for

purposes of the Final Administrative Removal Order.

No. 06-3391 13

IV

A

Eke also claims that the BIA should have granted his

petition for withholding of removal. Both the IJ and the

BIA erred, he claims, by requiring him to corroborate

his claim of persecution based on his membership in the

social group of homosexual men. The Real ID Act changed

the landscape for our review of this type of claim. See

Real ID Act of 2005 § 101(e), Pub. L. No. 109-13, 119 Stat.

231 (May 11, 2005). Under the amended statute, “[n]o

court shall reverse a determination made by a trier of

fact with respect to the availability of corroborating

evidence . . . unless the court finds . . . that a reasonable

trier of fact is compelled to conclude that such corroborat-

ing evidence is unavailable.” INA § 242(b)(4), 8 U.S.C.

§ 1252(b)(4).

The IJ concluded that Eke did not present credible

testimony, noting that his testimony lacked “sufficient

detail and . . . failed to logically explain away the myriad

of inconsistencies and clearly contradictory statements

present throughout his entire testimony, affidavit, and

Credible Fear interviews.” The IJ then added that

“[s]pecific, detailed, and credible testimony or a comb-

ination of detailed testimony and corroborative back-

ground evidence is necessary to prove a case,” but that

“[h]ere the respondent has failed to provide both.” There

is nothing in the nature of Eke’s claims that would

compel us to find that corroborating evidence was unavail-

able to him. The BIA’s comments on the lack of corrob-

orating evidence are telling:

The applicant did not provide any supporting wit-

nesses. . . . He also failed to either submit some kind

of documentation indicating his sexual preferences,

such as letters, affidavits, photographs, or other

forms of corroborative evidence; or establish that

14 No. 06-3391

such evidence was not reasonably available to him. In

fact, the applicant could not even provide the name

of the gentleman with whom he was allegedly in-

volved in a homosexual relationship.

The BIA’s description shows that many different kinds of

materials might have served as corroborating evidence;

it was Eke’s failure to present anything useful, combined

with the gaps and inconsistencies in his various accounts

of his story, that undermined his case in the IJ’s eyes.

B

Eke also argues that the BIA committed legal error

when it considered the issue of future persecution. Under

the relevant regulation, 8 C.F.R. § 208.16(b)(2)(i) and (ii),

an alien does not have

to provide evidence that he or she would be singled out

individually for such persecution if:

(i) The applicant establishes that in that country there

is a pattern or practice of persecution of a group of

persons similarly situated to the applicant on account

of race, religion, nationality, membership in a par-

ticular social group, or political opinion; and

(ii) The applicant establishes his or her own inclusion

in and identification with such group of persons

such that it is more likely than not that his or her

life or freedom would be threatened upon return to

that country.

8 C.F.R. § 208.16(b)(2). Eke claims that he has satisfied

these two requirements, but that the IJ (ratified by the

BIA) erroneously required him to show that he “would be

singled out individually” for persecution.

We do not read the IJ’s opinion that way. The IJ ac-

knowledged that Eke had shown evidence of a pattern of

No. 06-3391 15

persecution against the social group of homosexuals,

specifically noting “[t]he U.S. Department of State

Country Reports and supporting material submitted by

the respondent generally describe the social conditions

and situation for homosexuals in Nigerian society.” The

problem was that the IJ did not credit Eke’s testimony

that he, individually, was part of this persecuted group.

It was Eke’s burden to “establish[] his or her own inclu-

sion and identification with such group of persons . . . .”

8 C.F.R. § 208.16(b)(2)(ii). Although it would have been

helpful had the IJ stated explicitly that its finding

that Eke was not credible meant that it could not con-

clude that Eke is a homosexual, such that it was more

likely than not that a return to Nigeria would threaten

Eke’s life or freedom, this degree of precision was not

essential. Eke’s testimony and affidavit contained sev-

eral inconsistencies about his homosexuality and history of

homosexual conduct. Because of these inconsistencies and

the IJ’s credibility finding (which we cannot disturb

on these facts), Eke failed to show his inclusion in the

social group of “homosexuals.” Thus, the IJ was not

required to consider further his argument under 8

C.F.R. § 208.16(b)(2).

C

Finally, Eke claims that the government violated his

due process rights by conducting his hearing by tele-

video rather than in person. Eke contends that if the IJ

had seen him in person, the IJ would have recognized

that Eke is in fact homosexual.

We note at the outset that the statute governing Eke’s

hearing, 8 U.S.C. § 1229a, specifically authorizes pro-

ceeding by means of a video conference. See 8 U.S.C.

§ 1229a(b)(2)(A)(iii). Eke claims that this part of the

statute, which is implemented by 8 C.F.R. § 1003.25(c),

16 No. 06-3391

violates his constitutional due process rights. No court

has ever so held, however. Indeed, the Fourth Circuit

rejected a due process argument in similar circumstances.

Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002). In Rusu,

the three-hour hearing “was plagued by communication

problems.” Id. at 319. The petitioner’s “damaged mouth

and missing teeth [made him] . . . unable to speak clearly.”

Id. Yet even though the IJ had difficulty compre-

hending the petitioner’s testimony, the court reporter had

to write “indiscernible” a total of 132 times on the tran-

script of the hearing, and the petitioner had difficulty

comprehending the questions of his counsel, and even

though there were technological problems with the video

conference equipment, the Fourth Circuit found no due

process violation because “the IJ concluded that she could

glean the asserted factual basis of Rusu’s Application.” Id.

(No such technical difficulties occurred in this case.) The

Rusu court relied on the Supreme Court’s decision in

Mathews v. Eldridge, 424 U.S. 319, 333-34 (1976), which

“recognized that ‘the fundamental requirement of due

process is the opportunity to be heard at a meaningful time

and in a meaningful manner’ . . . [but that] will have

different meanings in different circumstances, and due

process only ‘calls for such procedural protections as the

particular situation demands.’ ” Rusu, 296 F.3d at 321; see

also Hermez v. Gonzales, 227 Fed. Appx. 441, 445 (6th

Cir. 2007) (nonprecedential).

We agree with the Fourth Circuit that Eldridge should

guide our analysis here. An alien in removal proceedings

is not entitled to all of the protections that a criminal

defendant would receive, even though at a broad level

of generality both are entitled to due process. As for

Eke, even if we thought (stereotypically) that something

about his physical presence could prove his homosex-

uality, he has not explained how the tele-video format

prevented the IJ from considering that evidence. Thus, Eke

No. 06-3391 17

has failed to show prejudice, which is required for him to

succeed on this claim. Capric v. Ashcroft, 355 F.3d 1075,

1087-88 (7th Cir. 2004).

V

We conclude, in summary, that the Illinois convictions

on which the government relied in Eke’s removal pro-

ceeding were properly characterized as aggravated felo-

nies, and that Eke’s other challenges to his petition for

withholding of removal are without merit. We therefore

DENY his petition for review.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-7-08