David Osawe v. Atty Gen USA ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-4070
___________
DAVID ODION OSAWE,
Petitioner
v.
*ATTORNEY GENERAL OF THE UNITED STATES;
*SECRETARY OF DEPARTMENT OF HOMELAND SECURITY;
*ASSISTANT SECRETARY OF BUREAU OF
IMMIGRATION & CUSTOMS ENFORCEMENT
*Amended pursuant to Fed. R. App. P. 43(c)
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-467-956)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 20, 2012
Before: AMBRO, FISHER and NYGAARD, Circuit Judges
(Filed: March 20, 2012)
___________
OPINION
___________
PER CURIAM
David Odion Osawe, proceeding pro se, petitions for review of the Board of
Immigration Appeals’s (“BIA”) final order of removal. For the reasons that follow, we
will deny the petition.
I.
Osawe, a native and citizen of Nigeria, entered the United States in February 2000.
In March 2009, the Department of Homeland Security initiated removal proceedings
against him, charging him with being removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i)
for having entered the United States without being admitted or paroled. In August 2009,
a master calendar hearing was held before an Immigration Judge (“IJ”). At that hearing,
Osawe conceded his removability and indicated that he was applying for withholding of
removal and relief under the Convention Against Torture (“CAT”). The IJ scheduled
Osawe’s merits hearing for April 7, 2010.
On March 29, 2010, Osawe, through counsel, moved to continue his merits
hearing in light of his having recently filed an I-360 petition with United States
Citizenship and Immigration Services. In that petition, he sought immigrant status based
on his claim that he had been abused by his United States-citizen wife. At the beginning
of the April 7, 2010 hearing, the IJ denied the motion. In doing so, she explained that
I don’t see that good cause [to continue the case] has been established
because the [I-360] application that you’re filing, probably because it’s
come up so late in the day, isn’t even supported with any objective
evidence, you know, to make it convincing. There’s -- I don’t see a police
report, I don’t see a psychological report, I don’t see an affidavit even from
[Osawe], much less from someone that he knows, about what -- how he
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thinks he was mistreated by his spouse. So, you know, it just -- you don’t
have presented here today a basic prima facie case that I think would be
able for me . . . to conclude that you’ve even established a prima facie case
of eligibility that would justify, you know, adjourning the case.
(A.R. at 101.)
After Osawe’s motion to continue was denied, the focus of the hearing turned to
his application for withholding of removal and CAT relief. Osawe testified that his father
had been the “tribal leader” of Osawe’s native village in Nigeria. When Osawe’s father
passed away in 1999, that leadership position was supposed to pass to Osawe. Osawe did
not want to assume that position, however, because doing so would have required him to
participate in rituals involving animal sacrifices, which conflicted with his Christian
beliefs. As a result, Osawe told the members of his tribal group that he would not assume
that position. He then moved to another part of Nigeria. Thereafter, the tribal group sent
four men to meet with him in an attempt to convince him to change his mind. After
reiterating to the men that he would not assume the leadership position, Osawe walked
out of the meeting. He later departed Nigeria and ultimately made his way to the United
States. He testified that he believed the tribal group is now overseen by a council instead
of a single leader.
Osawe, through counsel, explained that he feared that, if he returned to Nigeria,
the tribal group would persecute him on account of his Christian religion and “the fact
that he belonged to that tribe.” (Id. at 137.) Upon the conclusion of Osawe’s testimony,
the IJ denied his application. The IJ “easily” found that Osawe had not been persecuted
in the past in Nigeria. (Id. at 14.) The IJ then rejected Osawe’s claim of future
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persecution, finding, inter alia, that (1) he had not shown that he was a member of a
“particular social group”; (2) “there is no evidence that the members of [his] tribe want to
harm [him] in any way”; (3) “[e]ven if it might be argued that [he] might be forced to
serve in the capacity of tribal chief against his will, nothing in the record demonstrates
that [he] has asked any member of his own government to try to protect him”; and (4)
“over the [last] decade the tribe has adjusted, has reconfigured, and is now being led by a
council,” and it appears that he “now stands rejected from his tribe and, frankly, is not
being sought out as a leader anymore.” (Id. at 21-22, 24.) Finally, the IJ found that
Osawe had failed to meet his burden for CAT relief.
Osawe, still represented by counsel, appealed the IJ’s decision to the BIA. In
October 2011, the BIA dismissed the appeal. The BIA rejected Osawe’s challenge to the
IJ’s denial of his motion to continue, concluding that he “did not show actual prejudice
from the denial of his request, and [that] the [IJ] did not err in determining that [he]
lacked good cause for a continuance.” (Id. at 4.) In reaching this conclusion, the BIA
found that Osawe “has not demonstrated prima facie eligibility for the relief sought [in
his I-360 petition], as he failed to submit any evidence detailing the nature of his claim,
such as a police report or documents regarding medical or psychological treatment for
spousal abuse.” (Id. at 3.)
Turning to Osawe’s claim for withholding of removal, the BIA noted that he
challenged only the IJ’s failure to find future persecution. The BIA rejected this
challenge, concluding that Osawe had
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failed to establish that his tribal group would specifically target him
because of his Christian religion, rather than attempt to install him as a
hereditary chief. Likewise, [he] failed to establish his membership in a
particular social group. Instead, the record evidence points to his status as a
unique individual who is entitled to a leadership role. Additionally, [he]
would be identified not because of some defining characteristic, but
because he decided not to accept a leadership position. Moreover, no
evidence indicates that a decade later, the tribe would still want [him] as its
leader – the tribe has since transitioned to a council form of leadership.
(Id. at 4 (citations omitted).)
Finally, the BIA noted that Osawe “does not specifically contest the denial of
protection under the CAT.” (Id. at 4 n.1.) As a result, the BIA deemed that issue waived.
Osawe, now proceeding pro se, seeks review of the BIA’s decision.
II.
We have jurisdiction over Osawe’s petition for review pursuant to 8 U.S.C.
§ 1252(a)(1). “We apply substantial evidence review to agency findings of fact,
departing from factual findings only where a reasonable adjudicator would be compelled
to arrive at a contrary conclusion.” Mendez-Reyes v. Att’y Gen. of the U.S., 428 F.3d
187, 191 (3d Cir. 2005) (citing 8 U.S.C. § 1252(b)(4)(B)). While “[w]e review the denial
of a continuance for abuse of discretion,” Khan v. Att’y Gen. of the U.S., 448 F.3d 226,
233 (3d Cir. 2006), we exercise plenary review over any related procedural due process
claims. See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006).
III.
We commence our review with Osawe’s challenge to the denial of his motion to
continue. He argues that this denial violated his procedural due process rights. We
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disagree. “To prevail on a due process claim, the alien must show substantial prejudice.”
Jarbough v. Att’y Gen. of the U.S., 483 F.3d 184, 192 (3d Cir. 2007) (internal quotation
marks and citation omitted). That showing clearly was not made here, for Osawe did not
submit any evidence with his I-360 petition and, as a result, failed to establish even prima
facie eligibility for the relief sought in that petition.
We now turn to Osawe’s claim for withholding of removal. To obtain that relief,
an alien must show that it is more likely than not that he would suffer persecution in the
country of removal on account of his race, religion, nationality, membership in a
particular social group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A); Tarrawally v.
Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003). “Persecution” includes “threats to life,
confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom,” but “does not encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
1993).
In this case, Osawe has not shown that the record compels a finding that the tribal
group would likely persecute him if he returned to Nigeria.1 More than a decade has
passed since his departure from that country, and the tribal group appears to have
transitioned to a council form of leadership. We agree with the BIA that Osawe has not
shown that the tribal group would still want him as its leader, and we also agree that he
1
Given this conclusion, we need not address the BIA’s determination that Osawe
is not a member of a “particular social group.”
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“failed to establish that [the group] would specifically target him because of his Christian
religion.” (A.R. at 4.) Accordingly, we will not disturb the BIA’s rejection of his claim
for withholding of removal.
Finally, we note that, since Osawe’s brief does not challenge the denial of his CAT
claim, we deem that issue waived. See Laborers’ Int’l Union of N. Am., AFL-CIO v.
Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (stating that “[a]n issue is waived
unless a party raises it in its opening brief”). Even if he were to have raised that issue, we
would lack jurisdiction to review it because he failed to present it to the BIA. See 8
U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003)
(stating that “an alien is required to raise and exhaust his or her remedies as to each claim
or ground for relief if he or she is to preserve the right of judicial review of that claim”).
In light of the above, we will deny Osawe’s petition for review.
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