Akinola v. Attorney General of the United States ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-2764
___________
KOLE AKINOLA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A077-026-013)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 1, 2013
Before: RENDELL, ALDISERT and NYGAARD, Circuit Judges
(Opinion filed: April 05, 2013)
___________
OPINION
___________
PER CURIAM
Kole Akinola, a native and citizen of Nigeria, petitions for review of a final order
of the Board of Immigration Appeals (“BIA” or “Board”). For the following reasons, we
will deny the petition for review.
1
After illegally entering the United States, Akinola was convicted in New Jersey of
possession with intent to distribute a controlled substance (cocaine) within 1000 feet of a
school, N.J. Stat. Ann. § 2C:35-7, and robbery, N.J. Stat. Ann. § 2C:15-1. The
Department of Homeland Security initiated removal proceedings against Akinola,
alleging that he was removable on account of, inter alia, his conviction for a crime
relating to a controlled substance. 8 U.S.C. § 1182(a)(2)(A)(i)(II). Akinola filed
applications for asylum, withholding of removal, and protection under the United Nations
Convention Against Torture (“CAT”), alleging that he would be incarcerated and tortured
under a law known as Decree No. 33, which permits imprisonment of criminal deportees
upon their return to Nigeria.
An Immigration Judge (“IJ”) concluded that Akinola‟s drug conviction rendered
him ineligible for asylum and withholding of removal. 8 U.S.C. §§ 1158(b)(2)(A)(ii),
§ 1231(b)(3)(B)(ii). But the IJ granted Akinola‟s request for deferral of removal under
the CAT, finding that it was more likely than not that Akinola would be detained upon
his return and, while detained, would more likely than not be tortured. The Government
appealed.
The Board sustained the appeal. The BIA observed that the case was similar to In
re M-B-A-, where it held that an alien may not simply rely on the existence of Decree
No. 33 and anecdotal evidence of its impact, but must additionally provide “some current
evidence, or at least more meaningful historical evidence, regarding the manner of
enforcement of the provisions of Decree No. 33” on similarly situated individuals. 23 I.
2
& N. Dec. 474, 479 (BIA 2002). In Akinola‟s case, the Board concluded that the
evidence was “insufficient for this purpose” because it was “not entirely clear as to the
current implementation of Decree 33 in Nigeria.” Thus, the Board remanded the matter
“for further proceedings consistent with this opinion and for entry of a new decision.”1
On remand, the parties provided additional documentary evidence, including the
2009 State Department Report on Human Rights Practices in Nigeria, an Amnesty
International publication, and correspondence with the Nigerian Consulate which
indicated, inter alia, that Decree No. 33 “is operative Law, [and] remains recognized and
enforced.” After considering that new evidence, as well as the documentary material and
testimony submitted during the original proceedings, the IJ denied Akinola‟s application
for deferral of removal under the CAT. The IJ assumed, arguendo, that Akinola will be
imprisoned pursuant to Decree No. 33 upon his return to Nigeria. Nevertheless, the IJ
concluded that the evidence did not demonstrate that it was more likely than not that he
will be tortured in prison. Although the evidence revealed “abhorrent” conditions for
Nigerian prisoners, the IJ held that Akinola‟s “claim is based upon a chain of
assumptions and a fear of what might happen, rather than adequate evidence that meets
his burden” of proof for CAT relief.
1
One Board member dissented, explaining that, “[w]e may prefer having more
information as to the current enforcement of Decree 33, and we may even have resolved
the factual dispute on its implementation differently than the [IJ], if we had independent
fact finding authority. But the parties did offer evidence on this question, and the [IJ]
made a finding of fact that is not clearly erroneous.”
3
Akinola appealed. The BIA agreed with the IJ‟s conclusion that Akinola failed to
meet his burden of proof for deferral of removal under the CAT. Specifically, the Board
held that “although torture and other human rights abuses do often occur in Nigeria,
torture of [Akinola] in particular upon return to Nigeria was not shown to be more likely
than not.” In support of this determination, the BIA concluded that any knowledge
possessed by the Nigerian Consulate of Akinola‟s request for protection in the United
States would not itself be likely to cause Akinola to be singled out for harm.2 Thus, the
Board dismissed Akinola‟s appeal.
Akinola filed a timely petition for review, seeking to challenge the denial of his
application for protection under the CAT. We generally lack jurisdiction to review a
final order of removal against an alien, like Akinola, who is removable for having
committed a criminal offense covered in § 1182(a)(2). 8 U.S.C. § 1252(a)(2)(C). We
retain jurisdiction, however, to review constitutional claims, “pure questions of law,” and
“issues of application of law to fact, where the facts are undisputed and not the subject of
challenge.” Kamara v. Att‟y Gen., 420 F.3d 202, 211 (3d Cir. 2005).
2
In this connection, the Board agreed with the IJ‟s rejection of Akinola‟s claim that the
Government violated his confidentiality by disclosing to the Nigerian Consulate that he
had applied for asylum. See 8 C.F.R. § 1208.6 (prohibiting the disclosure of information
“that indicate[s] that a specific alien has applied for asylum” in the United States).
Because Akinola does not meaningfully challenge this determination on appeal, we agree
with the Government that the issue is waived. See Bradley v. Att‟y Gen., 603 F.3d 235,
243 n.8 (3d Cir. 2010) (holding that argument not raised in opening brief is waived).
4
Akinola complains that the Board‟s initial decision failed to “articulate what
standard of review it was applying to reach the conclusion there was not some current
evidence” in the record concerning the implementation of Decree 33. We have
jurisdiction to review this claim. See Kaplun v. Att‟y Gen., 602 F.3d 260, 268-69 (3d
Cir. 2010) (holding that Court has jurisdiction to review whether the BIA applied the
correct standard of review to the IJ‟s decision). The Board reviews factual findings of the
IJ under the clearly erroneous standard. See 8 C.F.R. § 1003.1(d)(3)(i). Here, the
Board‟s first decision did not indicate what standard it employed as to the facts in the
course of concluding that the evidence was “insufficient” and “not entirely clear as to the
current implementation of Decree 33 in Nigeria.” We conclude, however, that the
absence of an explicitly stated “clearly erroneous” standard was harmless and did not
affect the outcome of the case. Yuan v. Att‟y Gen., 642 F.3d 420, 427 (3d Cir. 2011).
The Board‟s decision to remand was based on its determination that the IJ failed to apply
the standards in In re M-B-A- for evaluating CAT claims. Whether the evidence was
“insufficient” or “not entirely clear” enough to satisfy those standards is a question of law
that the Board reviews de novo. Kaplun, 602 F.3d at 272 n.9 (stating that “the BIA
possesses the authority to review de novo whether an Immigration Judge‟s factual
findings (that are not clearly erroneous) satisfy an ultimate statutory standard . . . .”).
Therefore, we reject Akinola‟s contention that the BIA applied an incorrect standard of
review to the IJ‟s initial decision.
5
Akinola also argues that the IJ and the Board failed to consider relevant evidence
concerning whether he established eligibility for deferral of removal under the CAT.3
Despite the limits on our jurisdiction described above, we may review this claim. See
Green, 694 F.3d at 508-09 (addressing the merits of criminal alien‟s claim that “the IJ
and BIA committed legal error by ignoring relevant evidence in the record”). In
assessing whether it is more likely than not that an applicant would be tortured in the
proposed country of removal, “all evidence relevant to the possibility of future torture
shall be considered . . . .” 8 C.F.R. § 1208.16(c)(3). Although the BIA must provide
sufficient detail to allow the reviewing court to discern the basis of its decision, it is not
obligated to address each piece of documentary evidence in its opinion. Toussaint v.
Att‟y Gen., 455 F.3d 409, 414 (3d Cir. 2006).
Here, on remand from the BIA, the IJ permitted the parties to submit additional
documentary evidence. In her written decision, the IJ provided a detailed list of the
evidence presented and noted that the “Court will consider the additional documentary
evidence as well as the original documentary evidence and testimony submitted during
the first proceeding in deciding this matter upon remand.” The IJ then specifically cited
3
Akinola may also be challenging the weight that the agency gave to his evidence when
evaluating his eligibility for CAT relief. See Green v. Att‟y Gen., 694 F.3d 503, 508 (3d
Cir. 2012) (recognizing that petitioner‟s “real argument is not that relevant evidence was
ignored, but rather that the IJ incorrectly weighed evidence in making factual
determinations.”). It is clear, however, that we lack jurisdiction over such a claim.
Pieschacon-Villegas v. Att‟y Gen., 671 F.3d 303, 309 (3d Cir. 2011) (noting that court
lacks jurisdiction to review criminal alien‟s disagreement with BIA‟s determination that
his evidence is insufficient to demonstrate eligibility for CAT relief.).
6
to the 2009 country report and the Amnesty International publication in concluding that
the conditions faced by Nigerian prisoners are “certainly abhorrent.” Furthermore, the IJ
noted that “[a]s evidence that he will more likely than not fall victim to these abuses,
[Akinola] merely refers to his unsubstantiated belief that individuals . . . who are taken
into custody upon deportation through the operation of Decree No. 33 are tortured.” For
its part, the Board acknowledged the letters from the Consulate General‟s Office, as well
as the 2007 and 2009 versions of the country report. Notably, Akinola does not identify
any evidence that was overlooked. Under these circumstances, we are convinced that the
IJ and the BIA considered all relevant record evidence in rendering their decisions.
Toussaint, 455 F.3d at 415 (stating that “BIA‟s reference to „insufficient evidence‟
indicates that it weighed the evidence and found it lacking . . . .”).
For the foregoing reasons, we will deny the petition for review.
7