                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0379n.06
                                                                                         FILED
                                          No. 10-3761
                                                                                    Jun 06, 2011
                           UNITED STATES COURT OF APPEALS
                                                                              LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

 CHIDI CHRISTIAN NWACHUKWU,                     )
                                                )
        Petitioner,                             )    ON PETITION FOR REVIEW FROM A
                                                )    FINAL ORDER OF THE BOARD OF
 v.                                             )    IMMIGRATION APPEALS
                                                )
 ERIC H. HOLDER, Jr., Attorney General,         )
                                                )
        Respondent.                             )



       Before: KEITH, MARTIN, and COOK, Circuit Judges.


       PER CURIAM. Chidi Christian Nwachukwu, a native and citizen of Nigeria, petitions for

review of a Board of Immigration Appeals order affirming an Immigration Judge’s decision denying

his applications for asylum, withholding of removal, and protection under the Convention Against

Torture. He also moves this court to proceed in forma pauperis and for the appointment of counsel.

This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth

Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.

R. App. P. 34(a).

       Nwachukwu entered the United States in 2002 as a visitor. He married a United States

citizen in December 2002, and his wife filed an immediate relative petition on his behalf. This

petition was approved, and Nwachukwu eventually became a lawful permanent resident. However,

the couple separated soon after, and Nwachukwu was charged with numerous counts of sexually

abusing his 14-year-old stepdaughter, who had lived with Nwachukwu and his wife in the same

household. Nwachukwu pleaded nolo contendere to one count of first-degree criminal sexual
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conduct in violation of Michigan Compiled Laws § 750.520b(1)(b). In May 2007, he was sentenced

to two years to twenty years in prison, and served three years before being paroled in March 2010.

       In March 2009, while Nwachukwu was incarcerated, the Department of Homeland Security

served Nwachukwu with a Notice to Appear, charging him with removability under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for his conviction. They characterized his offenses as an aggravated felony

relating to the sexual abuse of a minor, and a crime of violence, as defined in sections 101(a)(43)(A)

and (43)(F) of the Immigration and Nationality Act. Nwachukwu then filed an application for

asylum, withholding of removal, and protection under the Torture Act.

       After a hearing was held, it was determined that the documents submitted by the government

established the charges and conviction, and that Nwachukwu’s offense, defined under Michigan

Compiled Laws § 750.520b(1)(b) as sexual penetration with a victim of 13 to 16 years of age and

the defendant being a member of the same household, constituted the type of conduct which

Congress intended to include as an “aggravated felony” under the Immigration Act. It was

concluded that the first charge of removability, pursuant to section 237(a)(2)(A)(iii) of the Act was

sustainable. See 8 U.S.C. §§ 1101(a)(43)(A), 1227(a)(2)(A). It was determined that the offense also

fell within the definition of a “crime of violence” so this alternative charge of removability was also

sustainable. See 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A).

       It was then determined that, as a result of the conviction, Nwachukwu was statutorily barred

from asylum relief, pursuant to section 208(b)(2)(B)(i) of the Act. See 8 U.S.C. § 1158(b)(2)(A)(ii),
(b)(2)(B)(i). It was also determined that Nwachukwu’s application for withholding of removal was

also barred, pursuant to section 241(b)(3)(B)(ii), because the conviction involved a “particularly

serious crime.” Therefore, Nwachukwu’s claim for relief under the Torture Act was the only one

not statutorily barred. See 8 C.F.R. § 1208.16(c),(d). Nevertheless, Nwachukwu was eligible only

for deferral of removal rather than withholding of removal under the Act. See 8 C.F.R. § 1208.17(a).

It was determined that Nwachukwu was not credible, and had not met his burden of showing that

more likely than not he would be tortured upon being removed to Nigeria.
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       On appeal, the Board agreed that Nwachukwu’s nolo contendere plea constituted a

“conviction” for purposes of his immigration appeal. The Board also agreed that Nwachukwu’s

conviction for criminal sexual conduct fell within the definition of “sexual abuse of a minor” under

the Act, see 8 U.S.C. § 1101(a)(43)(A), and therefore satisfied the definition of “aggravated felony.”

The Board found it unnecessary to address whether the conviction was a crime of violence under the

Act. Because his conviction as an aggravated felon was established, the Board upheld the decision

finding that Nwachukwu was not eligible for asylum relief, and also upheld the determination

Nwachukwu’s crime was particularly serious so that he was also ineligible for withholding of

removal. The Board also determined Nwachukwu was not entitled to deferral of removal under the

Convention Against Torture because he had failed to establish that, more likely than not, he would

be tortured if removed to Nigeria. See 8 C.F.R. § 1208.17.

       The Board rejected numerous claims that Nwachukwu raised for the first time on appeal,

including his claim that he was denied due process and a fair hearing because portions of his hearing

were transcribed as “indiscernible.” The Board also determined that Nwachukwu had failed to

explain how his rights under the Sixth and Eighth Amendments were violated, and held that it was

unpersuaded by Nwachukwu’s arguments surrounding his alleged right to a consular representative

from his native country at the time of his arrest. Finally, the Board denied Nwachukwu’s motion for

cancellation of removal.

       Nwachukwu timely filed a petition for review, preserving the following arguments: 1) his
plea of nolo contendere did not establish his guilt and conviction for purposes of his application for

asylum and withholding of removal; 2) he was denied access to Nigerian consulate when he was

arrested, in violation of his rights under the Vienna Convention; 3) his underlying conviction is

invalid; 4) the removal order subjects him to cruel and unusual punishment in violation of the Eighth

Amendment, and to double jeopardy in violation of the Fifth Amendment; 5) he was wrongly denied

relief under the Torture Act because he has shown that he will be tortured after his removal to

Nigeria; 6) the adverse credibility determination was erroneous; 7) the transcript contained omissions

and errors that denied him due process; 8) they failed to examine whether he was subjected to
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hardship in analyzing his claim of cancellation of removal; 9) the provisions of the Act barring his

eligibility for asylum and withholding should not be applied because his offense was governed by

state law rather than federal law; and 10) he met his burden of showing a well-founded fear of

persecution in Nigeria to be entitled to asylum relief.

       In reviewing an asylum determination where the Board adopts portions of the hearing judge’s

reasoning and supplements the opinion, we review the opinion as supplemented by the Board’s

analysis. Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009).

       The existence of subject matter jurisdiction is reviewed de novo. Abu-Khaliel v. Gonzales,

436 F.3d 627, 630 (6th Cir. 2006). We lack jurisdiction to review a final order of removal of an

alien who is removed for committing a criminal offense as set forth in 8 U.S.C. § 1227(a)(2)(A)(iii).

See 8 U.S.C. § 1252(a)(2)(C). The only exception to this jurisdictional bar is when an appellate

court considers “constitutional claims or questions of law raised upon a petition for review,” as

permitted under 8 U.S.C. § 1252(a)(2)(D). Thus, we do have jurisdiction to review Nwachukwu’s

due process claims, as well as the issues relating to whether his nolo contendere plea in state court

for criminal sexual conduct constituted a conviction for an aggravated felony as defined under the

Immigration Act. See Ikharo v. Holder, 614 F.3d 622, 629 (6th Cir. 2010).

       Nwachukwu’s plea of nolo contendere was sufficient to establish his conviction for purposes

of barring his application for asylum and withholding of removal. The Act clearly states that the

term “conviction” includes a plea of nolo contendere where some form of punishment has been
ordered. 8 U.S.C. § 1101(a)(48)(A).

       We find no merit to Nwachukwu’s argument that his conviction could not amount to an

“aggravated felony” under the Act because it was governed by state rather than federal law. Under

the Act, the term “aggravated felony” applies to any offense “in violation of Federal or State law.”

8 U.S.C. § 1101(a)(43) (final paragraph). We conclude that Nwachukwu’s conviction for sexual

criminal conduct in Michigan was an “aggravated felony” and was also a “particularly serious crime”

under the Act. The charge of removability based on Nwachukwu’s violation of Michigan’s sexual

misconduct law under Michigan Compiled Laws § 750.520b(1)(b) was a permissible construction
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                                               -5-

of the statute. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999). As a result, Nwachukwu’s

conviction barred asylum relief and the withholding of removal. See 8 U.S.C. §§ 1101(a)(43)(A),

1227(a)(2)(A), 1158(b)(2)(A)(ii), 1158(b)(2)(B)(i). Because Nwachukwu is statutorily ineligible for

asylum relief, we need not address his argument that the evidence was sufficient to show that he had

a well-founded fear of persecution, an element he would otherwise be required to show. Likewise,

because of his conviction, Nwachukwu is barred from relief as a “battered spouse.” See 8 U.S.C.

§ 1229b(b)(2). And, Nwachukwu’s claim for relief under the Act, based only on Nwachukwu’s

challenge to the Board’s finding as to the likelihood that he will be tortured upon his return to

Nigeria, is barred because of his having committed a criminal offense. See Singh v. U.S. Att’y. Gen.,

561 F.3d 1275, 1280 (11th Cir. 2009)(per curiam).

       Nwachukwu argues that he was subjected to cruel and unusual punishment in violation of

the Eighth Amendment when he was ordered removed, and that he was subjected to double jeopardy

in violation of the Fifth Amendment when he was convicted in Michigan then removed to Nigeria

for the same offense. However, Nwachukwu’s removal is not considered “punishment” for purposes

of applying these constitutional rights and principles. See Elia v. Gonzales, 431 F.3d 268, 276 (6th

Cir. 2005); Cadet v. Bulger, 377 F.3d 1173, 1196 (11th Cir. 2004).

       Nwachukwu argues that his due process rights were violated when portions of the

administrative hearing were transcribed as “indiscernible.” We review such claims de novo in

removal proceedings. Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007). While aliens
are entitled to due process in deportation proceedings, a due process violation may be established

only upon a showing “that a constitutional error caused actual prejudice.” Al-Ghorbani v. Holder,

585 F.3d 980, 992 (6th Cir. 2009). In other words, Nwachukwu must demonstrate that any alleged

defect affected the outcome of his proceedings. See Ikharo, 614 F.3d at 631. The transcript of the

hearing reveals that it was reasonably accurate and allowed for meaningful appellate review. See

Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006). Nwachukwu has failed to show how the

minor omissions affected the outcome of the proceedings. Thus, we find no merit to this claim.
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       Nwachukwu’s remaining claims attack the validity of his underlying conviction in state court.

However, Nwachukwu may not collaterally attack his underlying conviction in these removal

proceedings. See Al-Najar v. Mukasey, 515 F.3d 708, 714-15 (6th Cir. 2008). It was proper to

refrain from “go[ing] behind the judicial record” to determine Nwachukwu’s guilt or innocence or

examining the validity of his plea. Id. (quoting Palmur v. INS, 4 F.3d 482, 489 (7th Cir. 1993)).

       Accordingly, Nwachukwu’s motion to proceed in forma pauperis is granted for the limited

purpose of reviewing his petition, his motion for the appointment of counsel is denied, the petition

for review is denied, and his request to stay removal is also denied.
