Full opinion text
ORDER OF TRANSFER REPORT AND RECOMMENDATION YOUNG, Chief Judge. Arrested by ICE agents on September 13, 2004, his procedural and substantive due process rights violated, Frank Enwonwu has today endured 303 days of imprisonment even though there are no criminal charges pending against him. He seeks the Great Writ of Habeas Corpus established in clause 39 of Magna Carta (1215) and enshrined in our own United States Constitution. U.S. Const, art. I, § 9, cl. 2. For 217 years, through boom and bust, insurgency, civil war, and terrorist attack, this Court — the oldest United States District Court in America— has carefully and prudentially administered the Writ of Habeas Corpus to secure the rights of the individual against overreaching by the executive. Mr. Enwonwu commenced his action in this Court on March 17, 2005, had an initial hearing 25 days later, and a full evidentiary hearing two weeks after that. This Court took the matter under advisement and commenced a detailed and reflective analysis of an evidentiary record both complex and deeply disturbing. Then on May 11, 2005, the Congress stripped this Court of jurisdiction to act in this pending case and all others like it. Though such direct congressional interference in a pending case is virtually unprecedented in all our history, this surprising mandate has gone utterly unnoticed by our people. Evidently, only where an American jury sits to validate the separation of powers among the three branches is trial court jurisdiction immune from such peremptory congressional action. How can this be in modern day America? Mr. Enwonwu is an immigrant alien. He has no right to trial by jury in this type of case and Congress does not much care about immigrant aliens, even those who, after endangering themselves assisting our law enforcement efforts to stem the international drug trade, are deported into the hands of the very drug traders upon whom they have informed. Does this shock your conscience as an American? If so, read on and dispassionately judge for yourself: This habeas corpus petition stems from the Board of Immigration Appeals’ (“BIA”) reversal of the Executive Office for Immigration Review’s (“Review Office”) grant of deferral of removal under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“Convention Against Torture”) to petitioner Frank Enwonwu (“En-wonwu”). Enwonwu challenges the BIA’s decision and subsequent denial of his motion to reopen on procedural due process grounds,- claiming that he was not given notice of the executive’s appeal from the Review Office’s decision. Enwonwu also challenges the BIA’s order of removal itself on substantive due process grounds. I. FINDINGS OF FACT A. Substantially Undisputed Facts The following facts are not substantially disputed. Where significant disputes exist, the Court has resolved them in subsection B below. Mr. Enwonwu is a 56 year old native and citizen of Nigeria whose immigration history began in 1972 when he was admitted to the United States as a student. Executive’s Mem. in Supp. of Mot. to Dismiss (“Exee.Mem.”) [Doc. No. 4] at 3. On March 30, 1976, deportation proceedings were initiated against Enwon-wu after his student visa expired. Id. Enwonwu left the United States of his own volition following an order of the Review Office permitting his voluntary departure. Id. In 1980, Enwonwu briefly vacationed in the United States for two weeks. Tr. of Hr’g of 4/29/05 (“Tr. of 4/29/05”) [Doc. No. 18] at 26. Enwonwu returned to the United States again on January 20, 1986, arriving at Logan International Airport in Boston, Massachusetts with a tourist visa. Pet. for Writ of Habeas Corpus (“Pet’r Mem.”) [Doc. No. 1] at 6. Upon his arrival, United States Customs officials interrogated and searched Enwonwu.. Id. The search revealed that Enwonwu was concealing approximately five ounces of heroin within his body. Id. Enwonwu was transporting the heroin for a Nigerian military officer named Lieutenant Charles (“Charles”). Tr. of 4/29/05 at 27. Enwownu agreed to smuggle the heroin into the United States and deliver it in exchange for a payment of $5,000. Tr. of Hr’g of 5/2/05 (“Tr. of 5/2/05”) [Doc. No. 19] at 12. Enwonwu claims he received the heroin two hours before his flight out of Nigeria when he and approximately ten other individuals were given small packages. Aff. of Frank I. Enwonwu (“Enwon-wu Aff.”) [Doc. No. 9] ¶¶ 20-21. Upon receiving his package, Enwonwu was instructed by Charles to insert it into his rectum. Id. at ¶ 22. Enwonwu complied. Id. at ¶ 25. After Enwonwu successfully concealed the package, Charles handed him $300 and a telephone number he was to call when he arrived in the United States. Id. at ¶ 26. Charles then transported Enwonwu to the airport where they were waived through by customs agents and police officers who were participants in the drug trafficking organization. Tr. of 5/2/05 at 12; Hr’g of 4/29/05, Ex. 6, Tr. of Review Office Hr’g (“Ex.6”) at 122. Prior to his departure, Charles took Enwonwu’s car as collateral to be returned following the successful delivery of the heroin. Tr. of 5/2/05 at 12. Although Enwonwu wanted to leave the car with his cousin, Charles insisted on keeping it as “ransom” until Enwonwu returned. Ex. 6 at 122. Several of Enwon-wu’s possessions, including his driver’s license, were in his car. Id. Following the discovery of heroin, Special Agent Herbert Lemon (“Agent Lemon” or “Lemon”) of the Drug Enforcement Administration (“DEA”) was called to the scene. Pet’r Mem. at 6. Agent Lemon informed Enwonwu that he had run a criminal background check on him and noted that he did not appear to have a criminal record. Tr. of 4/29/05 at 27. Agent Lemon then asked Enwonwu how he had found himself in the present situation. Id. Enwonwu explained to Lemon that he had become involved with drug traffickers in Nigeria and had reluctantly agreed to serve as a courier for Charles. Id. Agent Lemon then inquired as to whether En-wonwu was willing to help convict Charles noting that the DEA was “really looking for the big guys who sent [Enwonwu] on this trip.” Id.; Tr. of 5/2/05 at 14 (indicating that Lemon asked Enwonwu whether he was “ready to help [him] convict Mr. Charles”). Further, according to Enwon-wu, Lemon stated that if his story turned out to be true and he cooperated, Enwon-wu would avoid prosecution and receive protection from Charles and his confederates. Enwonwu Aff. ¶ 42, 44. Enwonwu also claims that Agent Lemon promised that in exchange for his cooperation he would not be sent back to Nigeria. Id. at ¶ 42. But see infra section 1(B). Lemon cautioned, however, that if Enwon-wu was lying and wasting everyone’s time there would be no deal. Id. at ¶ 43. According to Enwonwu, he accepted the offer and, to prove to Lemon that he was telling the truth, produced the telephone number given to him by Charles which number he was to call upon his arrival. Tr. of 4/29/05 at 28; Tr. of 5/2/05 at 15. Agent Lemon subsequently arranged for Enwonwu to place a call to that number which connected to Charles’ room at a Lagos, Nigeria hotel. Tr. of 4/29/05 at 28. As instructed by Agent Lemon, Enwon-wu informed Charles that he had “arrived [in] Boston safely.” Enwonwu Aff. ¶ 46; Tr. of 4/29/05 at 28. An “excited” Charles ordered Enwonwu to call him the next morning for precise instructions on how to complete the delivery. Id. at 28-29. Agent Lemon and another DEA agent who had recording equipment and listening devices connected to the telephone listened to the call Enwonwu made to Charles. Id. Following the phone call, Enwonwu was taken to a detention facility and told by DEA agents that he would be picked up the following day. Id. at 29. The next morning, Agent Lemon- retrieved Enwonwu and brought him to a Holiday Inn in Boston where he was checked into a room with several DEA agents. Id. At the scheduled time, En-wonwu placed another telephone call to Charles which the DEA agents again recorded. Id. at 30. Charles informed En-wonwu that two individuals were being sent from New York to receive the heroin. Id. Enwonwu then provided Charles with a contact telephone number (given to him by Agent Lemon) that the New York individuals were to call when they arrived in Boston. Id. When the individuals from New York later called Enwonwu, they informed him that they would be in Boston the following day. Id. at 31. Enwonwu spent that evening at the Holiday Inn under DEA protection. Ex. 6 at 124. The following morning, thé New York individuals called Enwonwu again to tell him the time and place of their rendezvous. Tr. of 4/29/05 at 31. The individual with whom Enwonwu spoke informed him that they were to meet at a coffee shop near the Holiday Inn at noon. Enwonwu Aff. ¶ 56. Enwownu briefly described what he was wearing so that they would be able to recognize him. Id. After Enwonwu completed the call, Agent Lemon introduced him to a female DEA agent who would be posing as En-wonwu’s companion. Tr. of 4/29/05 at 31. Lemon instructed Enwonwu that upon meeting the individuals he was to lure them to the car being driven by the undercover agent in order to complete the putative transaction. Id. When Enwonwu entered the coffee shop later that day, two men gestured for him to come over to them. Id. at 32. According to Enwonwu, he could tell by their physical appearance that “they were Nigerians [or a]t least they were Africans.” Id. When Enwonwu walked over to the men he informed them that his girlfriend was outside in a car along with the heroin. Id. The men followed Enwonwu to the car where they sat in the back seat and En-wonwu and the undercover DEA agent sat in the front. Id. Once in the car, one of the men handed Enwonwu $5,000 and the undercover agent handed them the package of heroin. Id. Upon receiving the heroin, one of the men grew suspicious of a tear in the package that had been covered with a piece of tape. Id. at 32-33. Before Enwonwu could respond, the car was surrounded by DEA agents and police “with their weapons drawn.” Id. Enwonwu and the two men were taken into custody. Id. at 34. During the arrest Enwonwu “started yelling” to create the impression that he did not “know what was going on.” Id. After Enwonwu was taken into custody, he was brought back to the Holiday Inn and debriefed. Id., Enwonwu Aff. ¶ 72. A few hours later, Agent Lemon informed him that the two New York contacts had begun to cooperate and had informed him that they had been sent by their “big boss” in Ohio. Tr. of 4/29/05 at 34. Agent Lemon then requested Enwonwu’s further cooperation and asked him to place a call to the individual in Ohio whose telephone number the New York individuals had given him. Id. at 34-35; Ex. 6 at 125. Agent Lemon instructed Enwonwu to tell the Ohio contact that he decided not to sell the heroin for the agreed upon price of $5,000. Tr. of 4/29/05 at 34-35. Rather, Enwonwu was to insist on $10,000. Id. at 35. Enwonwu agreed to cooperate and placed the call as instructed. Id. In speaking to the individual, Enwonwu learned that he too was Nigerian. Id. The man informed Enwonwu that he was from a town just sixty miles from Enwonwu’s hometown of Onitsha. Id. As instructed, Enwonwu informed the man that he would not deliver the heroin unless he received $10,000. Id. at 35, 36. The man became irate and expressed his anger over the fact that Enwonwu had become so greedy after “they” had just given him his “first opportunity” in the drug business. Id. at 36. Enwonwu replied that this was not a question of greed and pointed out that Charles had taken his car. Id. This conversation went on for approximately twenty more minutes. Id. The Ohio individual became increasingly angry and cursed at and threatened En-wonwu. Id. At the end of the conversation, Enwonwu and the individual agreed that they would speak again the next day and attempt to renegotiate. Id. Enwonwu remained in DEA custody that evening at the Holiday Inn. Id. The following day at noon, Enwonwu was instructed to call the Ohio individual again and “to really stall him.” Id. at 36-37. During the call, Enwonwu remained insistent on receiving more money and told the man that he “did not care how much he threatened” him. Id. at 37. As the conversation progressed, the Ohio individual offered Enwonwu $8,000 for the heroin which Enwonwu refused. Id. Within moments, Enwonwu heard “commotion” from the other end of the telephone, “like people busting into the room.” Id. Enwonwu then heard the man shouting just before the line went “dead.” Id. The DEA agents listening in the room with Enwonwu began “high fiving each other” and “making statements that made [Enwonwu] believe” that the Ohio individual had been “busted.” Id. Agent Lemon congratulated Enwonwu and told him that he had been “very, very helpful to them.” Id. Agent Lemon informed Enwonwu that he would be set free within one to two weeks but that he would be detained until then. Enwonwu Aff. ¶ 80. On January 28, 1986, Enwonwu was arraigned before Magistrate Judge Joyce Alexander of the United States District Court for the District of Massachusetts and charged with importing or attempting to import heroin in violation of 21 U.S.C. §§ 952, 960, and 963. Hr’g of 4/27/05, Ex. 1, Certified Copy of R. of Crim. Proceedings against Frank I. Enwonwu (“Ex.l”) at 14. On the advice of his court appointed attorney, Enwonwu pleaded not guilty. Enwonwu Aff. ¶ 84. On January 30,1986, Enwonwu was indicted on those charges. Ex. 1 at 10. The indictment contained a second count charging Enwonwu with possession of heroin with intent to distribute in violation of 21 U.S.C § 841(a)(1). Id. at 11. Following a request by Agent Lemon, the United States Attorney’s Office consented to Enwonwu’s pretrial release. Tr. of 4/27/05 at 31-32; Pet’r Mem. at 6. On February 5, 1986, Magistrate Judge Alexander issued an order permitting Enwon-wu’s pretrial release to Douglass Clott, a friend of Enwonwu’s from his student days in Boston. Pet’r Mem. Ex. 4, Order on Release of 2/5/86; Tr. of 4/29/05 at 39. On March 21, 1986, as part of an agreement with the United States Attorney’s Office, Enwonwu pleaded guilty to the charge of importing heroin in exchange for the dismissal of the possession with intent to distribute charge. Pet’r Mem. at 7. En-wonwu received a five-year suspended sentence and was placed on three years of probation. Ex. 1 at 1. One of the conditions of Enwonwu’s probation was that he not serve as a government informant. Id. at 2. Despite the terms of his probation, the DEA continued to use Enwonwu’s services as an informant both before and after the termination of criminal proceedings against him. Tr. of 4/29/05 at 42-43. DEA agents informed Enwonwu that because the individuals he betrayed were part of a large, drug trafficking organization, his life was in danger and he needed to be careful. Ex. 6 at 132-33. Accordingly, Enwonwu was given a DEA 24-hour hotline number. Id. at 132. Agent Lemon told him immediately to call the number if he encountered a suspicious situation. Id. at 133. According to Enwonwu, he reported to the DEA office in Boston several times per week. Tr. of 4/29/05 at 42. Initially, En-wonwu dealt only with Agent Lemon but eventually dealt with various agents. Id. at 42-43. The DEA sought information from him regarding “drug activities going on in Nigeria.” Id. at 42. Enwonwu claims that he provided the DEA with everything he knew about the current status in Nigeria, including information about the corruption of the Nigerian government and how heroin came into Nigeria. Ex. 6 at 126-27. Specifically, Enwonwu informed the DEA that Pakistan was the primary source of heroin in Nigeria. Id. According to Enwonwu, Nigerian soldiers brought the heroin back from “Samhaus,” Pakistan where they were sent for military training. Id. Enwonwu further informed the DEA that members of the military recruited Nigerians to transport the heroin to the “United States or to [Great] Britain for a fee.” Id. Additionally, Enwonwu provided the DEA with the names of “prominent businessmen” that were widely known to be involved in the Nigerian drug trade. Id. Each day that he came to the DEA office, Enwonwu was asked to think for hours of every name or address that he could connect to the drug trade. Id. En-wonwu was compensated by the DEA for these services. Tr. of 4/29/05 at 43. Specifically, Enwonwu testified that Agent Lemon periodically made $200 cash payments to him. Id. In addition to working for the DEA, Enwonwu also cooperated with the Immigration and Naturalization Service (“INS”). Tr. of 4/29/05 at 39. While En-wonwu was working for the DEA, Agent Lemon introduced him to agents at the INS, whose office was located in the same building. Id. at 39-40. When Enwonwu met with INS agents he was asked in what type of employment he was interested. Id. at 40. Enwonwu replied that because he used to drive a cab as a student in Boston, he was interested in that type of work. Id. The INS subsequently issued Enwonwu a work authorization document and sent him to Boston Police headquarters to meet with a Captain Devine who was to issue Enwonwu a hackney license. Id. Additionally, the INS extended the period of time that Enwonwu could voluntarily remain in the United States to the end of the year. Pet’r Mem. Ex. 7, Employment Authorization. Following the issuance of Enwon-wu’s hackney license, he was hired by the Checker Cab Company where he worked for the next six years. Id. The INS, according to Enwonwu, also assigned him to one of their agents for periodic reporting. Tr. of 4/29/05 at 44. The INS, Enwonwu claims, provided him with photographs and addresses of Nigerian individuals that he was to “check on” and provide feedback on. Id.; Ex. 6 at 128. According to En-wonwu, these individuals’ precise whereabouts were unknown to INS, which was “looking for” them. Id. at 128. While working as a cab driver, Enwonwu also provided the DEA with the names of Nigerians living in the United States that he had learned were involved with illegal drugs. Id. at 129. To carry out his tasks as a government informant, Enwonwu asked many questions of fellow Nigerians that he “met at the taxi park[,] especially at the airport.” Tr. of 4/29/05 at 45. Enwonwu claims that these individuals grew suspicious of him and began to speculate as to his motives. Id. Enwonwu later learned that he had created “a lot of enemies” because the people he had been inquiring of had put “two and two together.” Id. That is, according to Enwonwu, the Nigerians he had been questioning knew that he had been arrested and wondered why he never served time for his offense. Ex. 6 at 133. Enwonwu claims that given the types of questions he had been asking, these individuals figured out that he had “made a deal with the [government.” Id. In addition to aiding the DEA and INS as an informant, Enwonwu also cooperated by testifying in 1986 before the grand jury that indicted the two New York individuals arrested in the controlled drug purchase. Tr. of 4/27/05 at 40 (cross examination testimony of Agent Lemon). Although the identities of those individuals are currently unknown to Enwonwu, counsel for the executive informed this Court that Joshua Adegoke Ogunniren (“Ogunniren”) and George Amarkwei Brock (“Brock”) were arrested in that operation. Executive’s Resp. to Order Regarding Subsequent Arrests [Doc. No. 13]. Although counsel for the executive was unaware of the ultimate outcome of that criminal case, based on the names it provided, this Court was able to secure information from its own search of the records of the United States District Court. In proceedings before Judge Robert E. Keeton in May of 1986, Ogunniran and Brock were each sentenced to two years imprisonment after pleading guilty to charges of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C § 841(a)(1). This Court takes judicial notice of the facts contained in those records. Fed.R.Evid. 201. See, e.g., Kow alski v. Gagne, 914 F.2d 299, 305 (1st Cir.1990) (“[I]t is well-accepted that federal courts may take judicial notice of proceedings in other courts if those proceedings have relevance to the matters at hand”). The current whereabouts of Ogunniran and Brock are unknown to this Court. Several months after Enwonwu had been acting as an informant for the DEA and INS, Enwonwu’s probation officer began inquiring about his sources of income. Tr. of 4/29/05 at 46. Enwonwu indicated that in addition to his income from taxi driving, he was also receiving money from the DEA and INS for his services as an informant. Id. at 46-47. Upon hearing this information, the probation officer sternly reminded Enwonwu that serving in such a capacity violated the terms of his probation. Id. at 47. Enwonwu agreed immediately to stop those activities to avoid the probation officer’s report of his violation. Id.; Enwonwu Aff. ¶¶ 123-24. When Enwonwu was later contacted by DEA agents for information, he informed them that because of the terms of his probation, he could no longer assist them. Ex. 6 at 138. According to Enwonwu, the agents continued to seek his assistance for another few weeks but eventually stopped after his persistent refusals. Id. at 139. According to DEA records, Enwonwu’s status as an informant officially terminated in November 1986, nearly ten months after he initially cooperated. Ex. A. Believing that the United States Government was “at peace” with the fact that he was no longer serving as an informant, Enwonwu resolved to continue making his living as a taxi driver. Enwonwu Aff. ¶¶ 126,129. In 1991, Enwonwu suceessfully completed his probation and began a new career as a nursing assistant. Pet’r Mem. at 8; Tr. of 4/29/05 at 48. After Enwonwu’s probation officer suggested that he petition the .INS for his green card, Enwonwu made such a request in writing but received no reply. Enwonwu Aff. at ¶ 131. In April 1997, the INS began implementing the 1996 amendments to section 241 of. the Immigration and Nationality Act (“INA’0 which retroactively classified past drug-related offenses as “aggravated felonies,” the commission of which render an alien-removable from the United States. 8 U.S.C. §§ 1101(a)(43), 1227(a)(2)(A)(iii); Pet’r Mem. at 8, Enwonwu became injured in June 1Q97 and applied for disability benefits from the Social Security Administration. Enwonwu Aff. ¶ 133; Tr. of 4/29/05 at 50. At the behest of the Social Security Administration, Enwonwu visited the INS to “adjust [his] status in order to qualify for disability benefits.” Enwonwu Aff. ¶ 133. Shortly after Enwonwu identified himself at the INS office he was arrested and placed in- removal proceedings before the Review Office “as an alien known to be a trafficker in controlled substances and as an immigrant without an immigrant visa, under 8 U.S.C. §§ 1182(a)(2)(A)(i)(II), 1182(a)(2)(C), and 1182(a)(7)(A), respectively.” Exec. Mem. at 4; Enwonwu Aff. ¶ 134. Enwonwu’s removal proceedings were presided over by Immigration Hearing Officer. Leonard Shapiro (“Hearing Officer Shapiro” or the “hearing officer”). Pet’r Mem. at 8- Enwonwu retained an attorney to represent him in these proceedings. Enwonwu Aff. ¶ 138. Enwonwu asked his attorney to contact the DEA to inform them that, despite their alleged agreement, he was being deported. Id. Enwonwu’s attorney contacted Agent Lemon and discussed with him the possibility of Enwonwu being issued an “S” visa, a special visa available to aliens who provide the government with reliable information regarding criminal enterprises in the United States. 8 U.S.C § 1101(a)(15)(S); Ex. 6 at 13; Pet’r Mem. at 8 & n. 5. The DEA subsequently agreed to interview Enwonwu regarding the possibility of issuing him such a visa. Ex. 6 at 13. Upon receiving this information, the hearing officer granted the parties leave to explore this possibility. Id. at 29. At the request of Agent Lemon, DEA agent Anthony Pettigrew (“Pettigrew”) interviewed Enwonwu at the Hillsborough County Jail in New Hampshire where En-wonwu was being detained. Tr. of 4/29/05 at 13-14. According to Pettigrew, Enwon-wu could not provide any new information that was “useful to open a DEA investigation.” Id. at 17. Agent Pettigrew subsequently informed Enwonwu’s attorney that Enwonwu had not provided him with enough information to “go forward.” Id. at 19. Thus, an “S” visa was never issued to Enwonwu and his deportation proceedings resumed. Following a summary hearing on August 28, 1997, the hearing officer “sustained the claims in the INS charging documents and ordered that Enwonwu be removed back to Nigeria.” Pet’r Mem. at 8; Ex. 6 at 267-68. Thereupon, Enwonwu promptly appealed his removal to the BIA. Pet’r Mem. at 9. “While [Enwonwu’s] appeal was pending, [he] wrote numerous letters to both the DEA and the INS pleading with them to remember their promises and reminding them that [his] life was at stake.” Enwonwu Aff. ¶ 150. That is, Enwonwu feared that he would face deadly retribution in Nigeria for his cooperation with the DEA. Id. at ¶ 137; Tr. of 5/2/05 at 26. Enwonwu’s appeal was denied on June 10, 1998. Pet’r Mem. at 9. Following the denial of his appeal, Enwonwu was transferred to the Krome Detention Center in Miami, Florida. Id.; Enwonwu Aff. ¶ 153. Enwonwu subsequently filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Florida. Pet’r Mem. at 9. En-wonwu’s petition was denied for lack of jurisdiction. Id. Enwonwu also filed a motion to reopen his case with the BIA so that he could pursue relief under the Convention Against Torture. Enwonwu Aff. ¶ 152. Under the Convention Against Torture, a signatory country is prohibited from returning an alien “to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture ....” Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C § 1231 (1998); see also 8 C.F.R. §§ 1208.16(c)(4), 1208.17, 1208.18. While Enwonwu awaited a ruling on his motion, his plight was detailed in a February 14, 1999 Boston Sunday Globe article after he agreed to be interviewed. Pet’r Mem., Ex. 14, Teresa Mears, As INS Jails Fill, A Release Plan Surfaces, Boston Globe, Feb. 14, 1999, at A16; Tr. of 5/2/05 at 26. The article mentioned the fact that Enwonwu cooperated with the DEA and that he feared for his life. Mears at A16. On June 2, 1999, the BIA granted En-wonwu’s motion to reopen and allowed him to pursue relief under the Convention Against Torture. Enwonwu’s case was remanded back to the Review Office in Boston where Hearing Officer Shapiro again presided. Pet’r Mem. at 10. Over the course of Enwonwu’s three-day Convention Against Torture hearing, testimony was taken from Agent Lemon, Enwonwu, and Professor Michael Watts of the University of California, Berkeley. Agent Lemon acknowledged that En-wonwu had cooperated with the DEA by participating in a controlled drug purchase and by making telephone calls to both Nigeria and Chicago. Ex. 6 at 74-75. Agent Lemon specifically recalled Enwon-wu making calls to the “ultimate recipient” of the heroin. Id. at 74. As Agent Lemon recalled, the individuals who came to Boston to purchase the drugs were Nigerian nationals. Id. Lemon also testified that he remembered that three individuals were arrested in connection with the controlled buy and that some of them had traveled from Nigeria to complete the transaction. Id. at 74-75. In addition to the telephone calls En-wonwu placed, Lemon testified that En-wonwu also provided “some information about these individuals in Nigeria.” Id. at 76. Further, Lemon recalled that Enwon-wu and an undercover agent had met with the prospective purchasers prior to the arrest. Id. When asked whether Enwon-wu provided the DEA with information about individuals other than the three who were arrested in connection with the controlled drug purchase, Lemon responded affirmatively but noted that he had been instructed by the DEA Office of Chief Counsel that he could not “get into particulars with respect to the information.” Id. at 76-77. Agent Lemon testified further that he did not recall Enwonwu implicating any high ranking military officials in Nigeria. Id. at 79. Lemon did recall, however, that Enwonwu indicated that the people with whom he had dealt were in Nigeria. Id. at 80. Agent Lemon also acknowledged that he introduced Enwonwu to agents at the INS to “see if Mr. Enwonwu could be of any value” to them. Id. at 88. Lemon elaborated that his understanding was that INS obtained a “taxi cab license” for En-wonwu who was going to “attempt to be of some assistance” to them. Id. Lemon testified further that he contacted an Assistant United States Attorney to ensure that Enwonwu received a suspended sentence as a result of his cooperation with the DEA. Id. at 81-82. When asked if Enwonwu was compensated by the DEA, Lemon responded that he did not know but noted that “the majority of times” informants who cooperate in exchange for leniency in a pending criminal case “are not compensated ... with money, but that’s not to say that it did not occur.” Id. at 89. Lemon denied ever promising to secure an “S” visa for En-wonwu. Id. at 105. Lemon also denied that anyone in the DEA promised asylum to Enwonwu, noting that “we’re not allowed to make promises.” Id. at 106-07. While testifying on his own behalf, En-wonwu stated that he feared returning to Nigeria because of the retribution he would endure at the hands of the individuals connected to the drug cartel that he betrayed. Id. at 139. Enwonwu noted that members of the organization still had possession of his car and his driver’s license. Id. Enwonwu added that it was a “mafia kind of thing going on in Nigeria and they will want to have revenge on me” for interfering with their business. Id. During his testimony, Enwonwu admitted to the hearing officer that he had lied under oath to an asylum interviewer regarding the identity of the mother of his son Brian. Id. at 188-190. Enwonwu acknowledged that he untruthfully told the interviewer that a woman named Virginia Cole was Brian’s mother in an effort to protect his ex-wife (Brian’s actual mother) who was then living in the United States and wished not to be involved in Enwon-wu’s immigration affairs. Id. at 188. The final person to testify at Enwonwu’s Convention Against Torture hearing was Professor Michael Watts. Professor Watts teaches geography and development studies at the University of California, Berkeley where he has been employed since 1979. Id. at 209. Professor Watts is also the director of the school’s International Studies Institute, an organization devoted to international studies and foreign affairs. Id. Professor Watts’ specific area of expertise focused on West Africa, particularly Nigeria. Id. Professor Watts testified that he was especially interested in Nigerian “politics, economics, and resource use.” Id. He testified that he first traveled to Nigeria in 1972, that he lived there for two years in the mid-1970’s, and that had been returning “regularly” since that time. Id. At the time of his testimony, Professor Watts had written three books on Nigeria. Id. at 210. The most recent book Watts had co-written “had to do particularly with questions of the rise of the military and the military [g]overnment in that country, problems of corruption ... and how that was shaping[] patterns of social and cultural life” in Nigeria. Id. at 210-11. Professor Watts also testified that he was not being compensated for his testimony. Id. at 228. In addition to authoring books on Nigeria, Watts drafted consultancy documents for organizations such as the Ford and Rockefeller Foundations regarding country conditions in Nigeria. Id. at 211. Watts also authored a report to the United Nations Development Program on a similar topic. Id. Watts has received many research grants to study country conditions in Nigeria. Id. at 211-12. Some of those grants were awarded by the United States Government, the Ford Foundation, and the MacArthur Foundation. Id. at 212. Based on Professor Watts’ background, the hearing officer qualified him as an expert on the country conditions of Nigeria. Id. at 215. Professor Watts testified that, in his opinion, it was likely that Enwonwu would be subject to torture should he return to Nigeria. Id. at 217-18 (opining it was “likely that should Mr. Enwonwu return [to Nigeria,] he would experience torture as a result of the activities that he had previously been involved in”). Watts’ opinion was based in large part on Enwonwu’s cooperation with the DEA. Id. at 219. According to Professor Watts, there existed a “very serious likelihood” that the Nigerian drug traffickers with whom Enwonwu had dealt would mete out retribution against him for that cooperation. Id. at 219, 223. That Enwonwu’s interaction with these Nigerian individuals occurred “in the mid-1980’s” did not alter Watts’ assessment. Id. at 223, 251. According to Watts, the Nigerian drug trade “very clearly has actors that are drawn from the military” as well as the government. Id. at 223. Thus, when testifying about the Nigerian drug trade, Professor Watts made clear that he was “simultaneously talking about the interrelationship of all three: senior military, senior and middle level government officials, and a sort of independent drug business, so to say.” Id. at 223-24. Because of that interconnection, Professor Watts opined, “there would[ ] not only be retaliation from the drug business side of things, but there would also be a likelihood of imprisonment, arrest and subsequent torture from the ... military and [governmental constituencies, insofar as they are part of that larger drug activity.” Id. at 224. Professor Watts testified further that the Nigerian government uses sophisticated surveillance and monitoring apparatuses capable of identifying and tracking down individuals like Enwonwu, even if they avoid parts of the country they previously inhabited. Id. at 218, 224-25. In fact, Watts testified, there are documented cases of individuals being tracked down and arrested after being absent from Nigeria for ten to fifteen years. Id. at 242. According to Professor Watts, in the last twenty years Nigeria has emerged as a “major ... player” in the international drug trade. Id: at 229. Watts testified that Nigeria is a key source of heroin, accounting for two-thirds or more of the global trade. Id. That trade, he noted, is the source of a considerable amount of violence within Nigeria. Id. Watts testified that there is a “great deal” of “well documented” evidence of violence involving “lower operative[s]” in the Nigerian drug trade. Id. Specifically, there existed “enormous amounts of ... retaliative violence” incident to that trade. Id. at 230. Such violence thrives, according to Professor Watts, because of Nigeria’s National Drug Enforcement Agency, which he described as “an extraordinarily corrupt organization” that “shows absolutely no willingness [or] ability to ... apprehend ... or convict” high level drug traffickers. Id. at 229-30. In fact, Watts testified, that agency is often “complicit[ ]” with the drug traffickers. Id. at 229. When asked to discuss the rule of law in Nigeria, Professor Watts testified that up until May of 1999 there simply was “no rule of law.” Id. at 225. Citing United Nations reports, Watts observed that he was not alone in reaching that conclusion. Id. Watts observed further that Nigeria is “[o]ne of the most, if not the most,” corrupt nations in the world. Id. at 225. Watts noted that Nigeria has a culture of “vast corruption” and “organized and unorganized violence.” Id. Further, Watts testified, Nigeria lacks a free press and “[t]he independence of its judiciary has been totally undercut by the military.” Id. Watts observed that despite a recent democratic transition, the rule of law had not returned to Nigeria which is still dogged by problems of corruption and violence. Id. at 225-27. ' Recent United States State Department reports reflect that the situation in Nigeria has not much. improved since 1999. Hr’g of 4/29/05, Ex. 2, Bureau of Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices— 2004: Nigeria (Feb. 28, 2005) (“Nigeria Country Report”) at 1-27. The State Department observes that arbitrary violence and lethal force at the hands of police and the military continue. Id. at 3. Additionally, “[vjigilante violence continued throughout the country .... ” Id. at 2. Further, the report observes, “[e]orruption- was massive, widespread, and pervasive, at all levels of the government and society.” Id. at 17. The report detailed flagrant violations of human rights and civil liberties by the Nigerian government that included arbitrary arrests -and politically motivated killings, id. at 2, politically motivated incarcerations and disappearances, id. at 5, denials of fair public trials, id. at 9, arbitrary interferences with privacy rights, id. at 10,- and restrictions on speech and assembly rights, to name a few. Id. at 10-12. Another recent United States State Department report discussing international narcotics trafficking notes that Nigeria remains “a hub of trafficking of persons and narcotics.” Bureau for International Narcotics and Law Enforcement Affairs, International Narcotics Control Strategy Report — 2005 Country Reports: Nigeria (Mar.2005) (“Nigeria Narcotics Report”) available at, http://www.state.gOv/g/inl/rls/ nrcrpt/2005/vol2/html/42395.htm. Further, the report notes, “Nigeria is a center of criminal financial activity for the entire continent. Individuals and criminal organizations have taken advantage of the country’s location, weak laws, systemic corruption, [and] lack of enforcement ... to strengthen their ability to perpetuate all manner of financial crimes at home and abroad.” Id. Despite the Nigerian government’s recent attempts at combating rampant crime and corruption, “Nigerians continue to be plagued by crime.” Id. On December 16, 1999, after the close of all the evidence, the hearing officer granted Enwonwu deferral of removal under the Convention Against Torture. Ex. 6 at 5; Pet’r Mem. at 10. Although the hearing officer “disbelieved” Enwonwu’s testimony that he identified various members of the Nigerian military as his co-conspirators, he did find that Enwonwu cooperated with the DEA “and provided names.” Ex. 6 at 5. The issue, according to the hearing officer, was whether Enwonwu, “having been convicted of a drug trafficking crime in this country, having cooperated with the Drug Enforcement Administration, and having been involved in smuggling narcotics into this country from Nigeria, would face the likelihood of torture upon his return to Nigeria.” Id. at 3. It was evident, the hearing officer found, that Enwonwu was “involved with others in Nigeria” who were possibly “connected to the military or the [g]overnment.” Id. Further, according to the hearing officer, the documentary evidence established that “Nigeria is a narcotics trafficking center of major proportions ... responsible for a significant portion of the heroin that is abused in the United States.” Id. Additionally, the hearing officer found that the Nigerian government “has fostered a climate receptive to criminal activities and it is widely believed that corruption and criminal activity and narcotics trafficking are fostered by some of the Nigerian elite, some of whom have links to ranking Nigerian government officials, as well as the military.” Id. at 3-4. The hearing officer found that it is the policy and the law in Nigeria that those who have been convicted of drug trafficking crimes outside Nigeria are subject to prosecution and conviction in Nigeria for those same crimes. Id. at 4. Further, the hearing officer found that it had been clearly established that the Nigerian prison system is a haven for human rights abuses and that prisoners within that system are routinely tortured. Id. The hearing officer credited Professor Watts’ testimony that Enwonwu would be highly identifiable upon his return to Nigeria and that “many people who do return to that country even after ten to fifteen years are apprehended and arrested for grievances which the government might have against them which occurred a long time ago.” Id. According to the hearing officer, En-wonwu would likely be identified and apprehended upon his return to Nigeria by virtue of being returned under an order of deportation. Id. Based on all of the evidence, the hearing officer concluded that it was “more likely than not” that Enwonwu would be tortured if he was returned to Nigeria. Id. at 4, 5. The hearing officer based his ruling on two grounds. First, because of Enwonwu’s conviction in the United States, he would likely be incarcerated in Nigeria and subject to torture in prison. Id. Alternatively, even if Enwonwu was not imprisoned based on his United States conviction, it was more likely than not that “because of the interrelationship of the drug traffickers, the military, and the [government, that retribution would be still sought against him because of his cooperation with the Drug Enforcement Administration.” Id. at 4-5. The hearing officer noted that this “retaliation, either by the military or the [government, would amount to acquiescence by a [governmental agency.....” Id. at 5. Following the hearing officer’s decision, Enwonwu was released.- Pet’r Mem. at 10. The INS, however, reserved its right to appeal the decision and Enwonwu was required to provide the Review Office with his contact address. Id.; Ex. 6 at 264. Enwonwu provided his address at the time which was: “c/o Rose O. Mgbojikwe, 39 Sheridan Drive, Apartment # 8, Shrews-bury, Massachusetts 01545.” Pet’r Mem. at 10. Enwonwu inquired of his attorney — Anthony Pelino (“Pelino”) — about the significance of the INS reserving its right to appeal. Id. at 11. According to Enwonwu, this information was especially important to him in light of the fact that Pelino would soon be moving his practice to Arizona. Id. Pelino informed him that although the INS did not usually appeal rulings of'the Review Office, it had reserved its right to do so in his case within the next thirty days. Id. With this information in mind, Enwonwu “counted the seconds until after January 18, 2000,” the last day the INS could file its notice of appeal. Id. By the end of that month when Enwonwu received no communication from either Pelino or the INS, he concluded that the matter was closed. Id. Unbeknownst to Enwonwu, however, the INS did, in fact, file a timely appeal with the BIA. Id. at 12. While it appears that notice of the appeal was mailed to Pelino, Enwonwu himself received no notice. Id. Although the BIA mailed notice of the appeal to Enwonwu, it did not indicate that his address was “c/o Rose O. Mgbojikwe.” Id. at 12-13, 20. As such, the notice of appeal was never delivered to Enwonwu but instead returned to the BIA and marked “[ujnknown at above address.” Id. at 20. Later in 2000, -after the INS filed its notice of appeal, Enwonwu moved with his sister to a new address in Shrewsbury, Massachusetts (27 Lebeaux Drive). Id. Ms. Mgbojikwe filed a change of address form with the United States Postal Service. Id. at 10: Enwonwu believed that he provided sufficient notice to the INS of his address change when he renewed his Employment Authorization -Document at the Bureau of Citizenship and Immigration Services as he was annually required to do. Id. at 10-11. Believing that his immigration problems had been resolved, Enwon-wu “began taking steps to regain control of his life.” Id. at 11. By 2003, Enwonwu had earned his realtor’s licence and was subsequently hired by ReMax Realtors in Malden, Massachusetts. Id. By the autumn of 2004, however, Enwonwu realized that the sale of real estate was seasonal and decided to seek an additional job. Id. To that end, on September 13, 2004, Enwonwu visited the Bureau of Customs and Immigration Services office in Boston to seek the necessary employment authorization. Id. Upon identifying himself, Enwonwu was again arrested and detained. Id. at 12. When Enwonwu asked why he was being arrested, he was informed that the INS, now the Department of Homeland Security, had successfully appealed Hearing Officer Shapiro’s 1999 deferral of removal order. Id. Indeed, on May 30, 2003, the BIA issued a decision vacating the hearing officer’s decision and ordering Enwonwu’s removal from the United States. Pet’r Mem. Ex. 18, BIA Decision of 5/30/03 (“BIA Decision of 5/30/03”). According to the BIA: The Immigration Judge granted [Convention Against Torture] relief largely based on the fact that the respondent, under Nigerian law, will likely be subject to arrest, detention and prosecution on account of his drug conviction in the United States. We have previously held that a Nigerian convicted of a drug offense in the United States failed to establish eligibility for deferral of removal because the evidence she presented regarding the enforcement of Decree No. 33 of the Nigerian National Drug Law Enforcement Agency could not meet the burden of proof for [the Convention Against Torture], See Matter of M-B-A-, 23 I & N Dec. 474 (BIA 2002). We therefore conclude that the mere possibility of arrest and prosecution in Nigeria does not establish that the respondent in this instance would more likely than not be subject to torture by a public official or with the acquiescence of such an official. See 8 C.F.R. §§ 1208.16(c)(4), 1208.18(a)(7). Id. Following his arrest, Enwonwu’s siblings contacted attorney Pelino, who was then practicing in Arizona. Pet’r Mem. at 12. According to Enwonwu, Pelino claimed to have no knowledge that the INS pursued an appeal of the hearing officer’s decision. Id. Thereafter, Enwon-wu retained new counsel to file a motion to reopen his case. Id. On February 15, 2005, the BIA denied Enwonwu’s motion because it had not been filed within 90 days of its May 30, 2003 decision. Pet’r Mem. Ex. 20, BIA Decision of 2/15/05 (“BIA Decision of 2/15/05”). The BIA ruled that despite Enwonwu’s claim that neither he nor his attorney were notified of the appeal, “the record indicates that the Notice of Appeal (EOIR Form 26) was mailed to [Enwonwu]’s former attorney at the last known address in the file.” Id. Enwonwu initiated habeas corpus proceedings in this Court on March 17, 2005. In his petition, Enwonwu asserts both procedural and substantive due process claims. Pet’r Mem. at 18-24. First, En-wonwu argues, the BIA’s May 30, 2003 decision and its February 15, 2005 order denying his motion to reopen deprived him of procedural due process as he was not afforded sufficient notice of the appeal of the hearing officer’s Convention Against Torture determination. Pet’r Mem. at 19-22. Second, Enwonwu argues that the BIA’s order of removal violates his substantive due process rights because returning him to Nigeria subjects him to a government-created danger. Pet’r Mem. at 22-23. On April 11, 2005, this Court granted Enwonwu’s Emergency Ex Parte Motion for Stay of Deportation [Doc. No. 7] and scheduled an evidentiary hearing. , This Court conducted an evidentiary hearing over the course of four days and heard testimony from Agents Lemon and Petti-grew as well as from Enwonwu. At the close of the evidence on May 3, 2005, this Court took the matter under advisement. The first witness to testify at the eviden-tiary hearing was Agent Lemon. Unlike his 1999 testimony before Hearing Officer Shapiro in which he testified that three individuals were arrested in connection with the 1986 controlled heroin purchase, Agent Lemon testified before this Court that only two individuals were arrested. Tr. of 4/27/05 at 26. Agent Lemon testified that, to his knowledge, no one was arrested in Ohio as a result of the investigation. Id. Additionally, in contrast to Lemon’s 1999 testimony in which he testified that he did not know whether Enwon-wu was paid for his services as an informant, Agent Lemon testified before this Court that several $200 cash payments were made to Enwonwu which totaled “fifteen or sixteen hundred dollars.” Compare id. at 29-30 with Ex. 6 at 89. In fact, Lemon recalled before this Court that he himself made those payments. Compare Tr. of 4/27/05 at 30 with Ex. 6 at 89. Another inconsistency in Agent Lemon’s testimony before this Court related to the nationality of the two individuals who were arrested after purchasing the heroin from Mr. Enwonwu in 1986. In 1999, Lemon testified that these individuals were Nigerian. Ex. 6 at 74. In response to a question from this Court, however, Agent Lemon stated that they were not from Nigeria. Tr. of 4/27/05 at 38 (remembering they “were on the American side”). Additionally, unlike his 1999 testimony in which he claimed to have introduced Enwonwu to INS agents “to see if [he] could be of any value” to them, Ex. 6 at 88, Agent Lemon testified before this Court that such introduction was made because he wanted to help Enwonwu obtain a “work permit.” Tr. of 4/27/05 at 27-28. Consistent with his testimony in 1999, Agent Lemon testified before this Court that Enwonwu was not promised that in exchange for his cooperation he would be permitted to remain in the United States. Id. at 37-38. Agent Lemon also testified that he did not promise Enwonwu that he would be protected from Lieutenant Charles or his confederates. Id. at 37. According to Agent Lemon, the only promise made to Enwonwu was that his cooperation would be brought to the attention of the United States Attorney in connection with the criminal case against him. Id. at 31. While testifying before this Court, Mr. Enwonwu stated that he feared returning to Nigeria because of his cooperation with the United States Government which facilitated the arrest of fellow Nigerians. Tr. of 4/29/05 at 58. Specifically, Enwonwu testified that he received word from Nigeria that he was being “looked for” by a lot of people. Id. Additionally, Enwonwu attempted to put on evidence regarding violence committed against several members of his family in Nigeria. Enwonwu Aff. ¶¶ 173-74, 176-79. This Court, however, refused to admit such evidence as it constituted hearsay and does not consider it now. Tr. of 4/29/05 at 57-58, 74-75. This Court did, however, permit Enwonwu to testify to the fact of his knowledge that his cousin in Nigeria, Herbert Enwonwu, was dead. Id. at 75-76. On hearsay grounds, however, this Court did not permit Enwon-wu to testify as to the circumstances of his cousin’s death. Id. at 76. In response to questions about the vol-untariness of his cooperation with the DEA, Enwonwu acknowledged that although he willingly cooperated, such choice was conditioned on promises made by the DEA. Tr. of 5/2/05 at 15. As Enwonwu stated, Special Agent Lemon promised me I’ll be safe from Lieutenant Charles and the rest of his boys. There was a condition there. Because when I left Lagos, I knew I was dealing with a lot of dangerous people and cooperating with the government to get to these people was going to put my life at risk. Id. Enwonwu noted further, “If I knew that after I cooperated with the government to get to Lieutenant Charles that the government was going to. send me back to Nigeria, I’ll be the damndest fool to do that.” Id. When it was suggested that Enwonwu had simply cooperated to avoid a prison term in the United States, Enwonwu responded that if “protection of my life was not guaranteed, going to jail and getting ... deported back to Nigeria was á little price to pay.” Id. at 16. Portions of Enwonwu’s evidentiary hearing were observed by members of the news media. As a result, several news stories circulated about Enwonwu’s case. See Hr’g of 4/29/05, Exs. 3-4. One story featured on the Nigerian news website “Nigeria Digital” noted that Enwonwu had been a government informant and that he feared for his life upon returning to Nigeria. Hr’g of 4/29/05, Ex. 4. B. Resolution of Disputed Issues of Fact On April 29, 2005, after hearing all of the testimonial evidence, this Court ruled from the bench that it was not persuaded by a fair preponderance of the evidence that there was an actual agreement between Enwonwu and the DEA that they would not deport him in exchange for his cooperation. Tr. of 4/29/05 at 80. This Court later explained that its ruling did not foreclose a finding that less specific representations were made to Enwonwu, including an assurance that he would be protected in connection with his cooperation. Tr. of 5/2/05 at 6. For purposes of the legal discussion that follows, in addition to the undisputed facts, this Court is persuaded of the following by a fair preponderance: This Court finds that in addition to cooperating in the 1986 controlled heroin purchase, Enwonwu also aided the DEA by making controlled telephone calls to an individual in the midwestern United States, either in Ohio or Chicago. Although Agent Lemon testified before this Court that he did not recall such cooperation, the Court finds his memory to be unreliable. As discussed above, there were several inconsistencies between Agent Lemon’s testimony in 1999 before the hearing officer and his 2005 testimony before this Court. That Enwonwu contacted an individual in the Midwest is supported by his own testimony, which this Court credits, as well Lemon’s 1999 testimony, portions of which this Court credits. In 1999, Lemon testified that Enwonwu contacted the “ultimate recipient” of the heroin and that he believed Enwonwu made phone calls to Chicago. Ex. 6 at 73-75. That Enwonwu made calls to the “ultimate recipient” of the heroin is further supported by Agent Lemon’s testimony that it is the policy of the- DEA to “take the investigation as far as possible.” Ex. 6 at 74; Tr. of 4/27/05 at 24. This Court is- persuaded that the DEA’s efforts went beyond simply apprehending Brock and Ogunniran and that it cast a wider net which included controlled telephone calls to the intended recipient of the heroin. This Court credits Enwonwu’s testimony that the Ohio individual was an African national who became angry with and threatened Enwonwu upon learning that he had doubled the price of the heroin. The reasonable inference is available that between his first and second conversation with Enwonwu, the Ohio individual informed the traffickers in Nigeria of En-wonwu’s betrayal. Further, this Court is persuaded that Mr. Brock and Mr. Ogun-niran are African nationals who were likely deported back to their countries of origin after serving their sentences. This Court further finds that representations were made to Enwonwu by the DEA regarding protection from certain dangers in connection with his cooperation. This Court credits Enwonwu’s testimony that the DEA assured him that his life would be safeguarded from the drug traffickers he was being asked to betray. Although Enwonwu understood this promise to include a guarantee that he would not be deported, this Court finds that the assurance was less specific. This Court credits Enwonwu’s testimony that given the dangerousness of the drug traffickers he was dealing with, he would not have cooperated without the DEA’s assurances of protection. Professor Watts attested to the dangerousness of these individuals, discussing at length the cut-throat and retaliatory nature of the Nigerian drug-trade. Ex. 6 at 217-18, 223-24, 228-30. That these assurances were made is further supported by Enwonwu’s testimony that the DEA provided him with a hotline number after telling him that, as an informant, his life was in danger. Ex. 6 at 142-43. Additionally, Agent Lemon’s willingness to send an agent to meet with Enwon-wu to discuss the possibility of an “S” visa further supports this finding. Ex. 6 at 13. These meetings followed pleas from En-wonwu’s lawyer and letters from Enwonwu stating that he feared for his life. Id; Tr. of 4/29/05 at 21. While it is possible that the DEA agreed to meet with Enwonwu out of compassion or the hope of obtaining valuable information, this Court finds it more likely that Agent Lemon agreed to do so out of a sense of obligation. That is, Agent Lemon assured Enwonwu that he would be protected from the drug traffickers and realized that removal would subject him to retribution at their hands. II. DISCUSSION A. Exhaustion of Administrative Remedies Courts are prohibited by 8 U.S.C. § 1252(d)(1) from reviewing a final order of removal unless the alien seeking review has exhausted all administrative remedies available to her “as of right.” Section 1252(d)’s exhaustion requirement “applies generally to habeas corpus petitions.” Sayyah v. Farquharson, 382 F.3d 20, 26 (1st Cir.2004). A different result “would allow an alien subjected to an adverse decision to reject the very administrative review processes established to correct mistakes and to insist, instead, upon immediate access to a federal court.” Id. To the extent that a claim is beyond the authority of the BIA to adjudicate, however, a petitioner need not exhaust her remedies administratively. Jupiter v. Ashcroft, 396 F.3d 487, 492 (1st Cir.2005). Administrative exhaustion is not required of En-wonwu’s substantive due process claim because, as the First Circuit has observed, “[t]he BIA is without jurisdiction to adjudicate purely constitutional issues.” Ravindran v. INS, 976 F.2d 754, 762 (1st Cir.1992) (citations omitted). This exception applies only to “due process claims that go beyond mere ‘procedural errors,’ which the BIA plainly may address.” Id. (citations omitted); see also United States v. Gonzalez-Roque, 301 F.3d 39, 47-48 (2d Cir.2002) (“While constitutional claims lie outside the BIA’s jurisdiction, it clearly can address procedural defects in deportation proceedings.”). Unlike Enwonwu’s .procedural due process claim which attacks the adequacy of the notice provided to him, his substantive due process claim challenges the constitutionality of the removal order itself in that it impermissibly subjects him to a government-created danger. The BIA lacks the authority to adjudicate this claim because it raises a purely constitutional question completely separate from matters of procedure. Ravindran, 976 F.2d at 762. Accordingly, administrative exhaustion does not apply to Enwonwu’s substantive due process claim. Jupiter, 396 F.3d at 492. Regarding Enwonwu’s procedural due process claim, counsel for the executive contends that because Enwonwu failed to defend against its appeal of the hearing officer’s December 16, 1999 Convention Against Torture decision, “he has failed to exhaust his administrative remedies and habeas review of the BIA’s May 30, 2003, decision is barred by 8 U.S.C. § 1252(d).” Exec. Mem. at 19. Counsel for the executive, however, has not cited a single case holding that an alien’s failure to defend an appeal of a decision deferring removal constituted a failure to exhaust administrative remedies. In making its argument, counsel for the executive misinterprets the function of section 1252(d)(l)’s exhaustion requirement. As the First Circuit noted in Sayyah, exhaustion requires aliens to utilize administrative procedures “to correct mistakes” that were made in “adverse deeision[s]” rendered against them. Sayyah, 382 F.3d at 26. “Telling a petitioner that he must seek the remedy for an error before an administrative agency ... prior to seeking it in a habeas proceeding is not the same thing as telling him that he may not pursue the remedy in a federal habeas proceeding in any event.” Id. (quoting Sundar v. INS, 328 F.3d 1320, 1324 (11th Cir.2003) (emphasis added)). Here, Enwonwu began the process of exhaustion by pursuing Convention Against Torture relief before the Review Office, which was granted. Thereafter, it was incumbent on counsel for the executive to appea