Bosede v. Mukasey, 512 F.3d 946 (7th Cir. 2008)

An HIV-positive Nigerian immigrant was denied due process when an Immigration Judge (IJ) denied his petition for withholding of removal based on improper findings. The immigrant, Bosede, was being sent back to Nigeria because he had been convicted twice for possessing small amounts of cocaine. Bosede argued that he should not be sent back because, among other reasons, he was HIV-positive and knew that his HIV status would lead to immediate detention by Nigerian authorities. Further, under Nigeria law, anyone convicted of drug offenses in another country is automatically imprisoned. Bosede claimed that being imprisoned in Nigeria would mean no access to doctors, medications, or proper nutrition, all of which would exacerbate his HIV infection and, potentially, lead to his death. The IJ concluded that Bosede’s offenses amounted to drug trafficking, which qualified as a “particularly serious” crime that made him ineligible for a withholding of removal. Further, even if Bosede had not been ineligible, the IJ still would have denied the request because even though detention in Nigeria would certainly be horrible, Bosede did not show that he would have definitely been detained if returned to Nigeria. The Seventh Circuit disagreed with the IJ’s reasoning and findings (and found much of it appalling) and asserted that aliens in the United States, regardless of their immigration status, are entitled to due process. The court found that the IJ’s reasoning and reliance on improper factors amounted to “a fundamental failure of due process” and ordered that Bosede be granted a new hearing, this time with a different IJ.