Iwayemi Ogunsanya v. Attorney General United States ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2598
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IWAYEMI EMMANUEL DAMILOLA OGUNSANYA, a/k/a Iwayemi Ogunsanya,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
_____________
On Petition for Review of a
Decision of the Board of Immigration Appeals
(Agency No. A201-938-460)
Immigration Judge: Mirlande Tadal
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 12, 2021
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Before: CHAGARES, JORDAN and SCIRICA, Circuit Judges.
(Filed: May 18, 2021)
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OPINION
_____________________
CHAGARES, Circuit Judge.

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Iwayemi Emmanuel Damilola Ogunsanya petitions for review of an order of the
Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ) denial of his
application for withholding of removal. For the following reasons, we will deny the
petition for review.
I.
We write only for the parties, so our summary of the facts is brief. Ogunsanya is a
native and citizen of Nigeria. He first entered the United States in November 2017 on a
tourist visa that allowed him to stay in the country for six months. Ogunsanya overstayed
his visa, was detained in September 2019, and placed into removal proceedings
immediately thereafter. Ogunsanya appeared before the IJ in February 2020, where he
conceded his removability and that any application for asylum would be untimely. He
did, however, maintain his applications for withholding of removal and protection under
the Convention Against Torture.
In support of his application, Ogunsanya claimed he had been persecuted for his
Christian beliefs in Nigeria and testified about his fear that he would face religious
persecution if he returned there. This testimony centered around two incidents — one in
2015 one in 2017.
In 2015, Ogunsanya testified, he had been proselytizing with members of his
church on the streets of Lagos, Nigeria’s largest city. It was there that a group of what
Ogunsanya described as religiously-motivated Muslims attacked his church group with
verbal harassment, stones, and wooden planks. The assault lasted about ten minutes
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before another group of Christians arrived to dispel the attackers, but in that time,
Ogunsanya suffered dislocated joints in his arm. Ogunsanya was hospitalized for several
days afterwards.
The 2017 incident occurred when Ogunsanya was a college student living in a
hostel about 90 minutes from his home in Lagos. He testified that at around 9:00 p.m.
one evening in June, he observed a group of ethnically Fulani Muslim gunmen in the
settlement where the hostel was located. The gunmen began shooting Christians in the
settlement, so to avoid them, Ogunsanya left the hostel through the back door and hid
behind nearby bushes for several hours. He escaped unharmed, but later learned that
several villagers had been killed or kidnapped in the attack. Ogunsanya testified that he
then remained in Lagos for several months before he left for the United States on a tourist
visa. He further testified that he feared anti-Christian persecution because of his middle
name “Emmanuel” — which he feared would signal his religious affiliation — as well as
his belief that the Nigerian government would not intervene to stop anti-Christian
persecution.
The IJ denied Ogunsanya’s applications for relief. Although the IJ accepted
Ogunsanya’s testimony as credible and subjectively reasonable, the IJ nonetheless
determined that Ogunsanya had not experienced persecution in the past and did not have
an objectively reasonable fear of future persecution. The IJ based this determination on,
inter alia, the fact that after the 2015 incident Ogunsanya did not experience any further
violence or other harm directed specifically at himself, and that Ogunsanya continued to
live in Nigeria for several months without any harm after the 2017 incident. The IJ also
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considered country conditions in Nigeria, observing that Christians and Muslims reside in
Lagos in equal numbers, that ethnically Yoruba Christians like Ogunsanya are a majority
group in Nigeria, that Nigeria lacks an official religion, and that Nigeria’s constitution
prohibits religious discrimination.
Ogunsanya then appealed the IJ’s denial of withholding of removal to the BIA.
The BIA affirmed the IJ’s ruling on largely similar grounds. The BIA further concluded
that the 2015 and 2017 attacks Ogunsanya experienced were isolated incidents that did
not rise to the level of persecution, that Ogunsanya had been able to live safely in
Nigeria, and that country conditions in Nigeria did not reflect a pattern or practice of
persecution against Christians.
Ogunsanya then timely filed this petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s order. The
BIA had jurisdiction to review the IJ’s decision under 8 C.F.R. § 1003.1(b)(3). We
consider only the BIA’s reasoning where the BIA renders an independent assessment of
the merits from the IJ, but may review the IJ’s decision where the BIA “both adopts the
findings of the [IJ] and discusses some of the bases for the [IJ]’s decision.” Saravia v.
Att’y Gen., 905 F.3d 729, 734 (3d Cir. 2018).
We must uphold factual determinations as to withholding of removal if they are
supported by substantial evidence from the record considered as a whole. Tarrawally v.
Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). This means “we will reverse based on a
factual error only if any reasonable fact-finder would be ‘compelled to conclude
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otherwise.’” Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010) (quoting 8 U.S.C. §
1252(b)(4)(B)). We review questions of law de novo. Saravia, 905 F.3d at 734.
III.
Under the Immigration and Nationality Act, a non-citizen is entitled to
withholding of removal if he can show by a clear probability that his “life or freedom
would be threatened … because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); see A.A. v. Att’y
Gen, 973 F.3d 171, 177 (3d Cir. 2020). This showing can be made either via evidence of
past persecution — which creates a rebuttable presumption of future persecution — or
through a showing that it is “more likely than not” that the non-citizen will be persecuted
in the future. A.A., 973 F.3d at 177. In either case, a showing of persecution requires the
non-citizen to demonstrate past or future potential harm so severe as to constitute
persecution, that such harm occur because of a non-citizen’s protected status, and that the
harm stems from either a country’s government or actors that government is unwilling to
control. See Guzman Orellana v. Att’y Gen., 956 F.3d 171, 178 (3d Cir. 2020).
Ogunsanya argues that the BIA erred when it concluded that he did not suffer past
persecution. He first claims that the BIA discounted evidence about ongoing religious
violence in Nigeria in determining that the 2015 and 2017 attacks were isolated incidents.
Moreover, he argues, the BIA lacked substantial evidence to conclude that he only
suffered non-severe injuries from the 2015 incident. Ogunsanya then argues that, taking
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the evidence from Nigeria’s conditions and both incidents in the aggregate, the BIA
lacked substantial evidence to conclude he was not persecuted.
We disagree. Rather than arbitrarily discount evidence about conditions in
Nigeria, the BIA considered the existence of violent clashes between Christians and
Muslims in the country. But as shown by its reasoning with respect to Ogunsanya’s
claims of potential future persecution, it took that evidence in context, noting that
religious violence in the country typically occurred in rural areas and the country’s
northeast — not in or near Lagos. The record does not compel us to conclude that the
BIA erred in classifying the 2015 and 2017 attacks as isolated incidents.
The same goes for the BIA’s conclusion that Ogunsanya’s injuries from the 2015
attack were not so severe as to constitute persecution.1 While many injuries resulting in
hospital stays are severe enough to constitute persecution, see, e.g., Voci v. Gonzales,
409 F.3d 607, 615-16 (3d Cir. 2005), hospitalization alone is far from determinative of an
injury’s nature, cf. Doe v. Att’y Gen., 956 F.3d 135, 146 (3d Cir. 2020). The BIA
reasonably took into account the relatively short length of Ogunsanya’s hospital stay and
the lack of long-term consequences from his injuries in concluding that they were not
1
Ogunsanya’s assertion that “the Board reasoned that the 2015 injury was not severe
because it was isolated,” Ogunsanya Br. 23, is misplaced. The BIA reasonably discussed
the 2015 injury’s isolated and non-severe nature together because such incidents often “do
not rise to the level of persecution.” Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005).
But nothing in the BIA’s reasoning suggests that the BIA used the severity of Ogunsanya’s
injuries to determine whether the 2015 attack was an isolated incident.
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severe, and we are not compelled to conclude otherwise. See Kibinda v. Att’y Gen., 477
F.3d 113, 119-20 (3d Cir. 2007).
Moreover, the BIA reasonably considered the 2015 and 2017 incidents
cumulatively. The BIA considered both the time between the incidents and the fact that
they were committed by two different groups, suggesting the attacks did not represent a
pattern of threats or conduct. Such a record does not compel us to conclude that the BIA
erred when it found Ogunsanya was not subjected to past persecution.
Nor are we persuaded that the BIA erred when it determined that Ogunsanya
lacked a well-founded fear of future persecution. Although Ogunsanya argues that
religious violence is prevalent in Nigeria, he does so based on country condition evidence
that the BIA both considered and weighed alongside the rest of the record. The BIA’s
conclusion that Ogunsanya did not reasonably fear future persecution was grounded in
country condition evidence showing religious violence to be concentrated in Nigeria’s
northeast and rural areas. That evidence suggested that the 2017 attack was as much an
isolated incident as the 2015 one. So too did the evidence that the 2017 attack did not
target Ogunsanya, as well as the fact that Ogunsanya was able to continue living in
Nigeria for several months afterwards without incident. We therefore conclude that the
BIA’s decision was supported by substantial evidence.
IV.
For the foregoing reasons, we will deny Ogunsanya’s petition for review.
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