Kingsley Dayo v. Eric Holder, Jr. , 687 F.3d 653 ( 2012 )

Case: 11-60524 Document: 00511918697 Page: 1 Date Filed: 07/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 12, 2012
No. 11-60524
Summary Calendar Lyle W. Cayce
Clerk
KINGSLEY DAYO,
Also Known as Kingsley Pedersoli, Also Known as Dayo Kingsley,
Also Known as Kingsley Dayo Pedersoli, Also Known as Kingsley J. Dayo,
Also Known as Darryl Lamont Gates,
Petitioner,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Proceeding at all times pro se, Kingsley Dayo petitions this court to review
the denial by the Board of Immigration Appeals (“BIA”) of his application for
asylum, withholding of removal, and relief under the Convention Against Tor-
ture (“CAT”), based on the government’s violation of confidentiality in revealing
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No. 11-60524
to the Nigerian consulate that he had applied for asylum. This court has never
addressed the proper relief for such a violation, but we now join the Second and
Fourth Circuits in allowing the applicant a separate claim for relief based on the
breach of confidentiality. Because the BIA considered this separate claim, and
because its denial of relief on that ground is supported by substantial evidence,
we deny the petition for review.
I.
Dayo is a citizen and native of Nigeria who the Department of Homeland
Security (“DHS”) claims arrived in the United States in November 2004 without
being admitted or paroled after inspection. He appeared before an immigration
judge (“IJ”) in October 2009 and denied the allegation, claiming he had arrived
in 1995 on a J-1 visa. DHS presented evidence that in 2004 Dayo had used a
passport and New York birth certificate in the name of Darryl Lamont at Miami
International Airport, but when his true identity was discovered, he was
detained for an outstanding warrant for a New York weapons offense. With this
evidence in the record and no evidence supporting Dayo’s claim to have entered
legally under a J-1 visa, the IJ found that the DHS’s allegation appeared correct
and ordered Dayo’s removal.
Dayo applied for asylum, withholding of removal, and protection under the
CAT. He claimed he left Nigeria because he was a member of the Movement for
the Survival of the Ogoni People (“MOSOP”), which protests the Nigerian gov-
ernment’s policy of forcing Ogoni out of the land so oil companies can drill there.
Dayo said his father was the deputy director of the group, and his mother was
a member. Before his parents fled, he was arrested and tortured to get a confes-
sion and to find out where the MOSOP members were located. He was released
when MOSOP bribed the police, and he came to the United States. He also
claims his mother was killed in 2003 when she returned to Nigeria. He had no
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documentary evidence to support his claims and no knowledge of his father’s
location.
The IJ decided that Dayo had not proved his case for asylum: His testi-
mony was not credible enough or detailed enough, and the application was
untimely. For the same lack of evidence, the IJ denied relief under the CAT. The
BIA affirmed that conclusion on appeal. Additionally, the BIA denied Dayo’s
motion to reopen the case to admit affidavits executed by his friends about
human rights in Nigeria, despite Dayo’s argument that his detention and lack
of familiarity with United States’ laws prevented him from getting the evidence
earlier.
Dayo petitioned this court for review. We noted that the IJ had held that
Dayo’s asylum application was not timely, so we could not review it. We also
decided that there was substantial evidence supporting the IJ’s adverse credibil-
ity finding. Dayo v. Holder, 413 F. App’x 745, 745-46 (5th Cir. 2011) (per
curiam).
Dayo then raised, in the BIA, a new argument for asylum based on a
breach of confidentiality in violation of 8 C.F.R. § 208.6. Because this circuit has
never addressed the issue of what relief is due for such a breach, the BIA fol-
lowed the Second and Fourth Circuits and reopened the matter to allow the
breach to be added as a new ground for asylum.
Dayo contends that DHS officer Leonard Davis gave the Nigerian Consu-
late a copy of Dayo’s asylum application when forwarding to the consulate the
immigration paperwork needed to get Dayo a travel document. Dayo claims to
know that because a Ms. Helen at the consulate told him so over the phone.
Davis denied that he included a copy of the asylum application; he testified that
he overheard the phone conversation between Dayo and Helen, and they did not
discuss the application. Instead, DHS believes the Nigerian consulate learned
about the application because Davis did not redact a footnote in the removal
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order that noted that Dayo’s application for asylum was untimely.
The IJ found Davis more credible. Dayo filed for asylum based on the
breach of confidentiality. The IJ concluded that Dayo had failed to show past
and future persecution because of his membership in MOSOP or that MOSOP
members were persecuted now, and he did not establish that asylum-seekers
were persecuted.
The BIA affirmed the IJ’s decision. First, it found Dayo’s claims of past
persecution for MOSOP membership time-barred and his testimony not credible.
Considering Dayo’s claim of future persecution, the BIA affirmed the finding
that Dayo had not established a well-founded fear based on the confidentiality
breach, because he had failed to show that asylum-seekers were persecuted. The
BIA also agreed that the letters Dayo submitted allegedly from his grandfather
in Nigeria and a Mr. Ese, who had been deported to Nigeria previously, did not
provide enough objective evidence to support his claims that he would be per-
secuted. Ese’s letter contained merely bald accusations, his signature did not
match between the two documents submitted, and Dayo’s grandfather’s letter
saying the police were looking for Dayo did not claim it was because he had
applied for asylum.
II.
Although this circuit has never addressed the appropriate relief for a viola-
tion of 8 C.F.R. § 208.6,1 some of our sister circuits have. In Lin v. United States
1
Section 208.6 provides in pertinent part:
(a) Information contained in or pertaining to any asylum application, records
pertaining to any credible fear determination conducted pursuant to § 208.30,
and records pertaining to any reasonable fear determination conducted pursu-
ant to § 208.31, shall not be disclosed without the written consent of the appli-
cant, except as permitted by this section or at the discretion of the Attorney
General.
(continued...)
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Department of Justice, 459 F.3d 255, 268 (2d Cir. 2006), the court explained that
a violation of the confidentiality protected by § 208.6 is not a mere procedural
flaw but could subject the asylum-seeker and his family to additional risks. Still,
the court determined that rather than automatically vacating the order of
removal, the proper relief was to allow this new risk to serve as the basis for an
independent claim of asylum or withholding of removal. Id. A similar analysis
was used in Anim v. Mukasey, 535 F.3d 243, 253 (4th Cir. 2008), stressing the
importance of confidentiality to ensure that information that could subject the
applicant or his family to retaliation is not released. The court allowed the
applicant to make a new claim for relief based on that confidentiality breach. Id.Because some countries persecute persons who sought asylum after repa-
triation, an asylum-seeker whose confidentiality was violated needs to be able
to seek relief if the country to which he is returning will so persecute him. Vacat-
ing automatically, however, is improper. Some countries will not persecute
unsuccessful asylum-seekers, so the revelation of their failed asylum claim does
not harm them. If the IJ and BIA did not feel there was any danger in sending
an applicant back before the breach, and the breach does not create any new
danger, there is no reason he should not still be removed. Therefore, we join the
Second and Fourth Circuits in concluding that although a breach of confidential-
ity caused by violating 8 C.F.R. § 208.6 does not always require vacating the
order of removal, the applicant must be permitted to use the breach for a new
claim for asylum, withholding of removal, and relief under the CAT.
1
(...continued)
(b) The confidentiality of other records kept by the Service and Executive
Office for Immigration Review that indicate that a specific alien has applied for
asylum, received a credible fear or reasonable fear interview, or received a cred-
ible fear or reasonable fear review shall also be protected from disclosure. The
Service will coordinate with the Department of State to ensure that the confi-
dentiality of those records is maintained if they are transmitted to Department
of State offices in other countries.
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III.
Because the BIA correctly reopened the matter, we must determine
whether, considering the violation of § 208.6 and in light of the evidence pre-
sented, denying Dayo relief was proper. To qualify for asylum, an applicant
must show he is a refugee by proving he suffered past persecution or has a well-
founded fear of future persecution. 8 U.S.C. § 1101(a)(42)(A). On petition for
review, we will uphold the BIA’s decision as long as it is supported by substan-
tial evidence. Gomez-Mejia v. INS, 56 F.3d 700, 702 (5th Cir. 1995). The peti-
tioner has the burden of demonstrating that the evidence was “so compelling
that no reasonable factfinder could fail to find the requisite fear of persecution.”
INS v. Eliaz-Zacarias, 502 U.S. 478, 483-84 (1992).
The BIA affirmed the IJ’s determination that Dayo was not credible.
Dayo’s only evidence that he suffered past persecution came from his own testi-
mony, so if the BIA’s determination that he lacked credibility is supported, Dayo
does not have enough evidence to show past persecution. A court can rely on
inconsistencies to make adverse credibility determinations if the totality of the
circumstances shows the applicant is not credible. Wang v. Holder, 569 F.3d
531, 538 (5th Cir. 2009).
Dayo made numerous inconsistent statements. He told an immigration
official he was born in Benin City but later told Ms. Helen at the consulate that
he did not know where he was from in Nigeria. His statement at Ryker’s Island
also answered “no” to whether he feared persecution if he returned to Nigeria.
Furthermore, he talked about being afraid to go to Nigeria because he was previ-
ously targeted there at a teenager, but he also sent letters to the Nigerian consu-
late asking not to be deported there because he had no family ties and had left
at a young age. It was odd he would be so afraid of Nigeria but would correspond
with the consulate through letters in matters even beyond just his proceedings
in court, expressing independent reasons not to be sent back and drawing addi-
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tional attention to himself. Moreover, in a letter to the Governor of New York
asking for a pardon, he claimed he helped raise his siblings but testified here
that he was an only child.
Finally, the documents Dayo submitted to support his story were found to
be suspicious. The letters he tendered did not include envelopes to show they
were mailed from Nigeria. Also, the signatures on Ese’s affidavit and letter are
substantially different. The record contained substantial evidence showing Dayo
lacked credibility.2
Having no evidence to support his claims of prior persecution, and with the
IJ’s ruling that he was not credible supported by substantial evidence, Dayo
needed to show a well-founded fear of future persecution by demonstrating a
subjective fear of persecution that is also objectively reasonable. Lopez-Gomez
v. Ashcroft, 263 F.3d 422, 445 (5th Cir. 2001). None of the pieces of evidence sub-
mitted supports an argument that Nigeria persecutes those who seek asylum.
Nigeria cooperated with the UN High Commissioner for Refugees and other
organizations that help refugees and asylum seekers, suggesting the country
does not persecute those seeking asylum.
Furthermore, Dayo lacked supporting evidence, because the letters he sub-
mitted were not trustworthy. He could not prove that the letter about police
looking for him came from his grandfather in Nigeria, and although Dayo testi-
2
Dayo is correct that contrary to the rest of the opinion, page 28 of the IJ’s decision
appears to accept, as credible, Dayo’s assertions that he was a cameraman and protester for
MOSOP and that he was arrested. The BIA, however, expressly affirmed the finding that
Dayo was not credible, and it did not recognize or adopt the IJ’s statement on page 28. We
review only the BIA’s decision and the parts of the IJ’s decision that the BIA utilizes, Bou-
chikhi v. Holder, 676 F.3d 173, 176 (5th Cir. 2012) (“We have authority to review only an order
of the BIA, but our task is effectively to review the IJ's decision when the BIA has explicitly
adopted it.”), so the controlling determination is that the BIA expressly found that Dayo lacked
credibility and so could not prove past persecution. Thus, because the reasoning the IJ gave
for finding that Dayo lacked credibility was expressly adopted and affirmed by the BIA, that
is the relevant reasoning on petition for review. Other portions of the IJ’s opinion will not be
considered.
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fied that before 2010, the police had last visited his grandfather in 2008, the let-
ter said the last visit from police was in 1998. Additionally, although Ese said
that after the United States sent him back, the Nigerian Government asked
whether he had sought asylum, he provides no evidence that he would have suf-
fered if he had said he had done so. Ese’s concerns about repercussions are
unsubstantiated, and he does not say harm befell any other failed asylum-
seekers. Finally, the Amnesty Report that Dayo relies on makes no mention of
any governmental abuse faced by failed asylum-seekers. Substantial evidence
supports the BIA’s determination that Dayo failed to show a well-founded fear
of persecution.
Overall, the BIA’s decision that Dayo was not entitled to asylum because
he could not provide credible evidence of a well-founded fear of future persecu-
tion is supported by substantial evidence. Because Dayo could not meet this bur-
den, the BIA was also correct in concluding he could not meet the higher burden
required for withholding of removal.3 An applicant “who has failed to establish
the less stringent ‘well-founded fear’ standard of proof required for asylum relief
is necessarily also unable to establish an entitlement to withholding of removal.”
Amin, 535 F.3d at 253. Finally, because the same lack of evidence means that
Dayo cannot show he will be tortured, he is not entitled to relief under the CAT.
The petition for review of the BIA’s decision denying Dayo’s application for
asylum, withholding of removal, and relief under the CAT is DENIED.4
3
Withholding of removal for threats to an alien’s life or freedom requires the applicant
to establish that if he is sent back, there is 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. Bouchikhi, 676 F.3d at 181.
4
In this court, Dayo has moved for summary judgment and to expedite the appeal,
arguing that the government’s brief was submitted late. We have already rejected a motion
to strike the brief based on the same allegations. We deny these and any other outstanding
motions.
8