Olusegun Ayodele v. Atty Gen USA , 473 F. App'x 148 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3423
___________
OLUSEGUN BEXLEY AYODELE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A020-067-957)
Immigration Judge: Honorable Jesus Clemente; previously Honorable Andrew
Arthur
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 12, 2012
Before: JORDAN, HARDIMAN and ROTH, Circuit Judges
(Opinion filed: March 30, 2012)
___________
OPINION
___________
PER CURIAM
Olusegun Bexley Ayodele, a citizen of Nigeria, entered the United States in
1972. His status was adjusted to that of a lawful permanent resident in 1975. In
1993, Ayodele was convicted in federal court of importing heroin in violation of
21 U.S.C. § 952(a) and was sentenced to 37 months of imprisonment and five
years of supervised release. In 1995, he was placed in exclusion proceedings, but
an Immigration Judge (“IJ”) granted him a waiver of exclusion (under the now-
repealed Section 212(c) of the Immigration and Nationality Act) in early 1996.
In 1998, Ayodele was convicted in New Jersey Superior Court for
aggravated assault in the third degree, resisting arrest, possession of heroin, and
manufacturing, distributing, or dispensing heroin. Also in 1998, Ayodele pleaded
guilty to possessing heroin with the intent to distribute it, for which he was
sentenced to one year and one day in prison. In 2009, in light of the 1998 guilty
plea for possession, he was adjudicated guilty of violating the terms of his
supervised release on his earlier federal conviction.
The Government charged Ayodele as removable in April 2010 for having
been convicted of two crimes involving moral turpitude not arising out of a single
scheme of criminal misconduct, for having been convicted of an offense relating to
illicit trafficking in a controlled substance, and for having been convicted of a
violation of or a conspiracy or attempt to violate a law relating to a controlled
2
substance. Ayodele conceded all the allegations in the notice to appear except the
allegation that he had been convicted of manufacturing, distributing, or dispensing
a dangerous controlled substance. The first IJ who reviewed the matter sustained
the allegation based on the criminal conviction evidence the Government
submitted; the second IJ agreed based on the same evidence and Ayodele’s
testimony at his hearing. The IJ ruled that Ayodele was removable as charged.
Ayodele applied for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). Concluding that Ayodele’s federal
conviction for importing heroin was illicit trafficking of a controlled substance and
an aggravated felony, the IJ held that he was not eligible for asylum. The IJ
applied the same analysis to Ayodele’s conviction for manufacturing with the
intent to deliver heroin. The IJ also held that Ayodele was not eligible for statutory
withholding of removal because he had been convicted of a particularly serious
crime. The IJ concluded that even though Ayodele had been sentenced to fewer
than 5 years in prison, the fact that he pleaded guilty voluntarily, and that he
thought he was smuggling gold, rather than heroin, into the country did not
overcome the presumption that his illicit trafficking offense was a particularly
serious crime. Having determined that Ayodele had committed a particularly
serious crime, the IJ held that he was subject to mandatory denial of withholding of
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removal under the CAT. The IJ additionally ruled that Ayodele did not meet his
burden to show that he was entitled to deferral of removal under the CAT.
Ayodele appealed to the Board of Immigration Appeals (“BIA”). The BIA
stated that it was undisputed that his criminal convictions rendered him removable
as charged and ineligible for asylum, withholding of removal, and CAT
withholding. The BIA rejected Ayodele’s claim that the IJ erred in denying the
application for deferral of removal. The BIA also denied various asserted due
process claims and noted the irrelevancy of Ayodele’s contentions relating to
collateral review of his criminal convictions that he apparently was seeking.
Ayodele presents a petition for review. As a preliminary matter, we must
consider the scope of our review. Our jurisdiction is circumscribed because
Ayodele is removable for having been convicted of an aggravated felony. See 8
U.S.C. § 1252(a)(2)(C). However, we retain jurisdiction over constitutional claims
and questions of law. See Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008)
(en banc) (citing 8 U.S.C. § 1252(a)(2)(C)-(D)); see also Silva-Rengifo v. Att’y
Gen., 473 F.3d 58, 63 (3d Cir. 2007) (citing Kamara v. Att’y Gen., 420 F.3d 202,
210-11 (3d Cir. 2005), for the proposition that the “jurisdictional grant regarding
appeals by aggravated felons extends not just to legal determinations but also to
application of law to facts”). We do not consider, however, issues that were not
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exhausted in the agency proceedings.1 See Bonhometre v. Gonzales, 414 F.3d
442, 447 (3d Cir. 2005) (footnotes omitted); 8 U.S.C. § 1252(d)(1).
Because our jurisdiction is limited, we cannot consider Ayodele’s challenge
to the denial of CAT relief to the extent Ayodele takes issue with factual
determinations by the agency. However, Ayodele also argues that the agency used
the wrong standard in assessing his CAT claim. In order to succeed on a CAT
claim a petitioner must show “‘that it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.’” Sevoian v. Ashcroft,
290 F.3d 166, 174-75 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)). Further, a
petitioner must show that the torturous acts would be inflicted “by or at the
instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). In ruling on the
CAT claim, the IJ stated this standard. IJ Decision at 11. Similarly, the BIA’s
ruling ostensibly is an application of this standard. BIA Decision at 2 (stating that
Ayodele did not show that it was more likely than not that he would be tortured
and alternatively concluding that even if he had, he had not shown the consent or
acquiescence of a public official to any torture).
1
Accordingly, we do not consider Ayodele’s challenge to his removability or the other
issues he did not raise before the BIA.
5
To meet the CAT standard, an alien must offer sufficient objective evidence.
See Sevoian, 290 F.3d at 175. Essentially, the agency ruled that Ayodele’s
evidence was insufficient to meet the standard. The IJ noted that Ayodele failed to
show that the two persons he named as a threat were public officials in Nigeria or
would act to harm him, with or without the acquiescence of public officials. The IJ
stated that Ayodele had not even shown that the two persons he feared were in
Nigeria, stating that Ayodele had testified only that he believed they were in
Nigeria and admitted that he had not seen them since 1996, 1997, or 1998.
Although he claimed they had family members in the Nigerian government around
that time period, he conceded that he did not know if they remained in the
government and did not show that they would consent or acquiesce to acts of
torture even if they were public officials. The agency also considered that any
corruption in the Nigerian government was neither so widespread as to be
presumed to occur in the majority of cases nor present in the form of acquiescence
to torture. These determinations relating to what Ayodele could face in Nigeria are
factual findings, see Kaplun v. Att’y Gen., 602 F.3d 260, 271 (3d Cir. 2010), and
accordingly cannot be reconsidered in this case, see supra. Taking the facts as
found by the agency, there is no error in the application of the CAT standard. On
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those facts, it does not seem more likely than not that Ayodele will be tortured in
Nigeria.
Furthermore, to the extent that Ayodele’s challenge to the denial of CAT
relief included, and continues to include, a due process claim based on the state-
created danger exception to the general rule that the Due Process Clause imposes
no obligation on the state to protect an individual from harm inflicted by private
parties, see, e.g., Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996), the claim is
without merit. We have “stated unequivocally that ‘the state-created danger
exception has no place in our immigration jurisprudence.’” Rranci v. Att’y Gen.,
540 F.3d 165, 171 (3d Cir. 2008); see also Kamara, 420 F.3d at 217.
Ayodele also contends that the IJ violated various constitutional rights (and
abused his discretion) in denying him a continuance. Considering the matter, see
Hoxha v. Holder, 559 F.3d 157, 163 n.5 (3d Cir. 2009), we conclude that the IJ did
not err. Ayodele sought a continuance because he wanted to seek documents
related to his conviction. R. 399. (He contended that some documents related to
his original conviction that were used in charging him with a violation of his terms
of supervised release were inaccurate and the Government was also presenting
“some indictment and some information” to the IJ that were not true. R. 399.)
However, Ayodele admitted the underlying conviction. R. 399 & 400. Although
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Ayodele asserted that he was trying to have it overturned, R. 400, it was final for
immigration purposes. See Paredes v. Att’y Gen., 528 F.3d 196, 198-99 (3d Cir.
2008) (holding that the pendency of collateral attacks does not negate the finality
of convictions for immigration removal purposes).2
Related to the denial of the continuance, Ayodele also complains about the
IJ’s “sarcastic remarks [and] hostility.” IJs must remain neutral and impartial in
conducting immigration hearings and “‘assiduously refrain from becoming
advocates for either party.’” Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir.
2003) (citation omitted); see also Wang v. Att’y Gen., 423 F.3d 260, 268 (3d Cir.
2005). Contrary to Ayodele’s assertion, the IJ met those obligations.
For these reasons, we deny the petition for review.
2
For this reason, Ayodele’s various challenges to his underlying convictions that he
raises in his brief do not change the result.
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