                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                 No. 07-15666
                                                                JULY 1, 2008
                             Non-Argument Calendar
                                                             THOMAS K. KAHN
                           ________________________               CLERK

                      D. C. Docket No. 04-01380-CV-JEC-1

JONATHAN O. MADU,

                                                    Plaintiff-Appellant,

                                      versus

MICHAEL CHERTOFF,
Secretary of the Department
of Homeland Security,
MICHAEL ROZOS,
Interim Director, Atlanta Bureau
of Immigration and Customs Enforcement,
ROSEMARY MELVILLE,
Director, Atlanta District U.S. Citizenship
and Immigration Services,

                                                    Defendants-Appellees.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                   (July 1, 2008)
Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

       Jonathan O. Madu appeals the district court’s denial of his 28 U.S.C. § 2241

petition for a writ of habeas corpus 1, which alleged that the deportation order that

formed the basis for his current detention never came into being because he

departed the country voluntarily within the time permitted, i.e., before 5 June 1987.

On appeal, Madu argues that the district court clearly erred in denying his § 2241

petition because a preponderance of the evidence established that he departed to

Mexico before 5 June 1987. After review, we find that the district court did not

clearly err in determining that Madu did not show by a preponderance of the

evidence that he had departed the country prior to 5 June 1987, because the

evidence presented by Madu was unauthenticated and incomplete. Accordingly,

we AFFIRM.

                                   I. BACKGROUND

       On 17 May 2004, Madu, a Nigerian citizen, filed a petition for a writ of

habeas corpus in the U.S. District Court for the Northern District of Georgia,


       1
         As an initial matter, Madu may proceed before us despite the lack of a Certificate of
Appealability (“COA”). Under 28 U.S.C. § 2253(c)(1), a COA is required in a habeas
proceeding when “the detention complained of arises out of process issued by a State court,” or
the proceeding was pursuant to § 2255. By negative implication, a habeas proceeding involving
a federal detention complained of under § 2241 does not need a COA to appeal. See 28 U.S.C. §
2253(c); Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003).

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pursuant to 28 U.S.C. § 2241, alleging that his detention and imminent deportation

by the Department of Homeland Security (“DHS”) was illegal. Specifically, Madu

argued that his arrest by the DHS, pursuant to an order of deportation from 1987,

violated his due process because he had actually voluntarily departed the United

States before the order was issued. Madu also filed an emergency motion to stay

deportation while his petition was pending, which the district court granted.

      After several filings by the parties, the district court summarized the dispute

as "whether [Madu] is subject to a final order of removal," noting that either he

departed the country as he claimed and no order went into effect or he did not leave

the United States and is subject to removal. R2-21 at 9. The court therefore

determined that Madu was challenging a final order of removal and found that the

REAL ID Act divested it of jurisdiction, and it transferred the action to us.

      We held that Madu was not challenging a final administrative order of

removal because the question presented in the case was whether there was there

was a removal order at all. Madu v. U.S. Atty. Gen., 470 F.3d 1362, 1367 (11th

Cir. 2006). Therefore, the district court retained jurisdiction under § 2241 to hear

Madu’s habeas petition. Id. We vacated the district court’s order transferring the

case and remanded it to the district court for habeas proceedings, including an

evidentiary hearing, to determine whether Madu complied with the voluntary



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departure order by leaving the country. Id. at 1368.

      At the district court’s evidentiary hearing, Madu testified and submitted

documentary evidence. Priscilla Sterling-Madu testified that she married Madu in

1984, they divorced in 1985, and then later remarried. She said that Madu went to

Mexico in 1987 because he had to leave the country by June 5th of that year. R3 at

57. She let him take their son to make sure he would come back, but immediately

explained that she allowed Madu to take their son “just to make it easy for him to

get a visa to come back.” Id. at 57-58. She did so although they were not married

at the time and, in fact, she was married to someone else. Id. at 57, 59-60. A

friend took Madu and her son to the airport, and Madu called her from Mexico. Id.

at 58-59. Madu and his son rode a bus back from Mexico. Id. at 59. Onyema Joe

Maduabuchi, Madu’s son, testified that he went to Mexico with his father. Id. at

68. Although he was only two years old, he remembered bits and pieces of the

trip, and knows “for a fact” that he went to Mexico. Id. The government then

presented the testimony of Terry Bird, chief counsel for Immigration and Customs

Enforcement (“ICE”) in Atlanta, Mark Lee Johns, acting assistant field officer

director for the Department of Immigration, and Mildred Ellis, an immigration

officer for DHS.

      Following the evidentiary hearing, the district court entered a written order



                                          4
denying Madu’s § 2241 petition and dismissing his case. The court first

determined that it would review the evidence presented de novo to decide whether

Madu had established that he had traveled to Mexico before 5 June 1987, by a

preponderance of the evidence. The court first found that Madu had shown himself

to be willing to “game” the immigration system and that he had a strong interest to

lie in this case, but it noted that it was not focusing on these findings in its

determination that Madu had not traveled to Mexico, but, instead, that

determination was based on the circumstances surrounding the alleged trip and the

corroborating evidence. R2-36 at 20. The court then noted that Madu’s credibility

was hurt by the fact that he had a felony conviction for making false statements to

obtain student assistance, but noted that in determining his credibility, the court

relied more on the specific plausibility of his story and his demeanor on the stand.

Id. at 20-21.

       Based on the improbability of Madu’s story and his demeanor on the stand,

the court found Madu’s testimony that he traveled to Mexico unbelievable.

Specifically, the court found the details regarding his reentry into the United States

to be implausible because, according to Madu, his passport bore a stamp denying a

visa from the U.S. embassy in Mexico, and Bird had testified that border agents

would not have allowed Madu into the country under the circumstances. Id. at 22.



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Next, the court found that Madu’s failure to create reliable documentary evidence

of his trip to Mexico was at odds with his purpose of the trip and the trouble he

would have gone through in traveling, although the court recognized that he was

not under an obligation to have created a record of such evidence. Id. at 22-24.

The court also determined that it would have been reasonable for Madu to inform

INS that his travel plans had changed and that he would travel to Mexico instead of

Nigeria in order to avoid the entry of a deportation order, which his testimony

shows he knew would occur if he did not actually depart. Id. at 24-25.

Additionally, the court noted that Madu’s explanation that he lost his passport in a

tornado was “convenient,” and did not believe him on that point. Id. at 24 n.10.

      The court then found the testimony of Madu’s wife to be of limited value

because she did not see him board a plane for Mexico and the phone call she

received could have come from anywhere. Id. at 25. The court also found that it

could not credit the testimony of Madu's son because he was only two-and-a-half

years old when the trip allegedly happened, and research has shown that

individuals are unable to remember events that occurred before the age of

approximately three-and-a-half. Id. at 25-26. Therefore, his son may have been

convinced by his father that he traveled to Mexico, and he might think he

remembers traveling there, but his testimony was not probative on the fact. Id. at



                                          6
26.

      The court then addressed Madu’s documentary evidence. First, the court

noted that Madu never offered his original passport, and found that since the

lawyer who certified the copies did not testify at the hearing or present a statement

regarding the document, the document was not persuasive, especially considering

the ease with which the copies could have been falsified “with a pair of scissors,

cellophane tape, and a photocopy machine[.]” Id. at 26-27. The court noted that a

Google search of the supposedly authenticating lawyer’s name indicated that he

now practiced law in Washington, D.C. Id. at 27 n.12. The court also found that

the government refuted Madu’s claim that the INS must have accepted the copies

by showing that the only requirement for getting a work permit was submitting an

application. Id. at 27. The court observed that the remaining documents

demonstrated, at most, that someone had at some unspecified time planned a trip to

Mexico. The court noted that Madu had only submitted the copies of his passport

with his original application to stay deportation, and found that the fact that the

other evidence was presented only later further indicated that the documents were

not credible. Finally, the court determined that the absence of evidence that Madu

attempted to notify officials that he had actually left the country rendered his

evidence less credible, even though he was not required to do so. Having found



                                           7
that Madu did not establish by a preponderance of the evidence that he traveled to

Mexico before 5 June 1987, the court concluded that the order of deportation was

still in effect.

                                 II. DISCUSSION

       On appeal, Madu argues that the district court clearly erred in denying his §

2241 petition. He contends that a preponderance of the evidence established that

he departed to Mexico before 5 June 1987. Although he could not present his

original passport, he claims to have obtained copies that were kept by the INS

itself. He argues that the passport copies, along with the testimony of his wife and

son and the documentary evidence, all established that he traveled to Mexico on 18

May 1987. Madu contends that the district court was determined to reject the

petition, and ignored evidence that his passport was authentic and offered

insufficient reasons to reject his testimony, the testimony of his wife and son, and

his documentary evidence. In rejecting his passport, he claims that the court

ignored the evidence that showed that the copies were reliable, including the facts

that the copies were obtained from the INS as part of an application he made in

1990, long before the present proceedings, and they bore the certification of an

officer of the court, even if the INS never examined it at that time. Additionally,

although the court dismissed his story that his passport was destroyed by a tornado,



                                          8
Madu notes that the record included a letter from FEMA for disaster assistance,

although the letter was not presented at the hearing. He also argues that the court

was also incorrect in dismissing his testimony regarding his reentry because it is an

open secret that the U.S.-Mexico border is porous, and incorrectly relied on

evidence of his 1993 conviction as its probative value did not substantially

outweigh its prejudice. Madu contends that the court did not cite a valid reason to

discount his former wife’s testimony, and the fact that on average a child does not

remember events occurring before the age of three-and-a-half does not mean that

his son did not remember traveling to Mexico, and the study the district court cited

was not in the record. He claims that, due to the tornado, it was not surprising that

the documentary evidence was fragmented or that it was not discovered right away.

      “In reviewing the district court’s denial of a habeas corpus petition, we

review questions of law de novo and the court’s findings of fact for clear error.”

Coloma v. Holder, 445 F.3d 1282, 1284 (11th Cir. 2006) (per curiam) (quotation

and citation omitted). “A petitioner has the burden of establishing his right to

federal habeas relief.” Id. (quotation and citation omitted). As long as the district

court’s findings are plausible, we will not reverse the district court even if we

would have decided the case differently. United States v. McPhee, 336 F.3d 1269,

1275 (11th Cir. 2003) (quotation omitted). Finally, “we allot substantial



                                           9
deference” to the credibility determinations of the finder of fact. Id. (quotation

omitted). The only issue involved in this case is the factual determination of

whether Madu actually left the United States for Mexico before 5 June 1987. See

Madu, 470 F.3d at 1368.

      Here, Madu did present evidence that tends to indicate that he traveled to

Mexico City at some point. Most important for his case are the copies of his

passport obtained from the INS. See R.Exh., Pl.’s Exh. 2. If authentic, these

copies would conclusively show that he traveled to Mexico City before 5 June

1987, as there is a stamp from the U.S. embassy in Mexico City bearing the date of

20 May 1987, which was consistent with the practice of an embassy when dealing

with a visa application. R3 at 107-08. These copies purport to be certified by an

officer of the court, as they were stamped by Madu’s lawyer at the time.

Furthermore, although the district court dismissed Madu’s story regarding a

tornado destroying his original passport, the record did contain evidence that he

was the victim of a natural disaster sometime in 1998. R1-7 at Exh. B. Madu also

presented the testimony of his son, who said that he knew for a fact that he had

traveled to Mexico City with his father, R3 at 68, and his wife, who said that a

friend dropped Madu off at the airport and that Madu called from Mexico to report

that he had not obtained a visa. Id. at 58-59. Although the district court dismissed



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the testimony of Madu’s son because, on average, children do not remember events

before they are roughly three-and-a-half years old, just because three-and-a-half is

the average age of memory-forming does not mean that Madu’s son could not have

remembered what would have been a particularly memorable event a year before

average. Finally, Madu also presented several documents that, when added

together, seem to show that he did travel to Mexico at some point with his son, see

R.Exh., Pl.’s Exhs. 1, 3-9, although not necessarily before 5 June 1987.

      However, considering the weaknesses of Madu’s evidence, the demanding

standard of review, and the fact that much of the case hinges on determinations of

credibility, we are persuaded that the judgment of the district court is due to be

affirmed. First, regarding Madu’s passport, although the copies came from the INS

and had been in its possession for a long time, R3 at 138, testimony established

that the copies would not have been examined in order to issue Madu a work

permit, but rather the application itself was all that was required. Id. at 142-43.

Moreover, although Madu testified that he presented the original and the INS made

copies of his passport, which his lawyer certified, id. at 23, 30-31, 34, that

procedure was not consistent with the practice of the INS, which would have

certified the copies itself. Id. at 89-91. Even though sending in copies was an

accepted practice for applications, an original would eventually be required, id. at



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102-03, 105-06, 144, 148-49, and the INS’s records did not indicate that anyone

there had ever actually seen Madu’s passport. Id. at 89-91. Finally, although the

copies purported to be authenticated by Madu’s then-lawyer, that individual did

not testify or present a statement verifying his signature. See R.Exh., Pl.’s Exh. 2.

This fact is especially important considering it was Madu’s burden to establish that

he had actually traveled to Mexico and, therefore, the authenticity of the document.

See Coloma, 445 F.3d at 1284.

      The district court placed heavy weight on the fact that it found Madu's story

regarding his reentry back into the United States implausible. Madu argues that

this conclusion was improper because it is well known that the United

States-Mexico border is porous. Whether or not that statement is accurate, Madu

did not state that he was able to sneak through the border or that he was not asked

for proper documentation. Instead, he testified that he presented his Nigerian

passport and was allowed to pass through without question even though his

passport bore a stamp showing he applied for a visa, yet he did not have one. See

R3 at 26-28; R.Exh., Pl.’s Exh. 2. Bird testified that such a scenario was unlikely,

even when traveling with a U.S. citizen child with a U.S. passport. R3 at 87-89.

Therefore, the district court’s determination that Madu’s story regarding his reentry

was not credible is due deference. See McPhee, 336 F.3d at 1275.



                                          12
      Madu challenges the district court’s decision to afford little, if any, weight to

the testimony of his wife and son and the additional documentary evidence he

presented. However, with the possible exception of his son’s testimony, this

evidence sheds little, if any, light on the issue. First, his wife had no direct

knowledge of Madu’s alleged trip because she did not take him to the airport or see

him board a plane, and the phone call she received from him could have been

placed from anywhere. See R3 at 57-59. Next, the additional documentary

evidence provided by Madu does seem to show that at some point he traveled to

Mexico City with his son, but, except for a postcard that was never mailed, none of

the documents bears any date and, therefore, they are of little or no probative value

on the issue of whether he traveled to Mexico City before 5 June 1987. See

R.Exh., Pl.’s Exhs. 1, 3-9. Although his son testified that he knew “for a fact” that

he had been to Mexico City, R3 at 68, he did not establish when the trip occurred

and, in fact, his testimony was unclear whether he knew for a fact that he had gone

because he remembered the trip or because he had been told by his father that he

had gone. Id. at 67-68. Finally, even if, as Madu asserts, the fact that the family’s

apartment was damaged by a tornado six years before he submitted his application

to stay deportation helps to explain why his documentary evidence is fragmented,

Madu had ample time to collect the documents that remained before he submitted



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his application. Therefore, the court understandably considered the fact that the

supporting documents were not submitted to the INS to be suspicious. R2-36 at

28; see McPhee, 366 F.3d at 1275.

      Madu also challenges the district court’s reliance on certain facts, including

his previous arrest for false statements and the fact the court’s determination that

he was willing to “game” the immigration system. However, the district court

specifically noted that although these facts tended to discredit Madu's testimony, it

would consider them only minimally or not at all in reaching its decision. R1-36 at

19-21. On the other hand, the court noted that it was relying heavily on Madu’s

demeanor on the witness stand. Id. at 21. We afford such determinations

substantial deference. See McPhee, 336 F.3d at 1275.

                                III. CONCLUSION

      In light of the foregoing, Madu has not established that the district court

clearly erred in making the factual determination that he did not depart the United

States before 5 June 1987, especially considering that he bears the burden of

proving his eligibility for habeas relief, there is a demanding standard of review,

and much of the court’s determination was based on credibility determinations that

are entitled to substantial deference. Accordingly, we AFFIRM.

AFFIRMED.



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