Richardson Edionseri v. Jefferson B. Sessions III , 860 F.3d 1101 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3421
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Richardson Osaigbovo Edionseri
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: June 7, 2017
Filed: June 26, 2017
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Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
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ARNOLD, Circuit Judge.
Nigerian native and citizen Richardson Edionseri was admitted to the United
States in December 2006 on condition that he attend college. In September 2010,
Edionseri petitioned for asylum, withholding of removal, and relief under the
Convention Against Torture and dropped out of college a few months later. While
Edionseri's petition was pending, the Department of Homeland Security charged him
with being removable because he was no longer a student. See 8 U.S.C.
§ 1227(a)(1)(C)(i). Edionseri conceded that he was removable but argued that he was
entitled to the relief sought in his petition.
We first summarize Edionseri's testimony at his hearing. He was born in
Nigeria in 1973, but his family later moved to India. When he was 16 years old, he
saw a wizard kill his father; the devil had commissioned the wizard to kill his father
to transform Edionseri into a false prophet. After his father's death, his family moved
back to Nigeria, eventually settling in Lagos. There, Edionseri's mother purchased
rental property where the family lived along with tenants, some of whom became
operatives for the devil. One tenant inserted a worm inside Edionseri while he slept;
another tenant raised a furor by accusing Edionseri's mother of witchcraft and
Edionseri of wizardry after the tenant's mother had died. Around this time, Edionseri
began having visions and prophesying, and, when his prophecies did not come true,
some in the community accused him of being a false prophet. At one point Edionseri
was having a vision while cutting glass, and a spirit threw glass into his eye.
In 2001 an imbroglio erupted between Edionseri's family and a tenant named
Akpoma. The family suspected Akpoma of leaving stolen cars at the rental property,
so they called police. When several officers arrived, Akpoma prevented their entry by
padlocking a gate; he proceeded to beat Edionseri and his mother with a tire iron. A
few days later, another tenant assaulted Edionseri, his mother, and his sister in the
presence of police. The family was eventually able to evict the troublesome tenants
around 2002 or 2003.
Edionseri also explained that the devil had placed demons inside him, causing
various medical ailments. One particularly troublesome ailment was an offensive odor
that marked Edionseri as demonic, leading the community to ostracize him. He
underwent four exorcisms in Nigeria, but to no avail. He sought help from various
medical and religious personnel but nothing helped. Edionseri fears returning to
Nigeria because people will again associate his smell with demonic forces and
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ostracize, harm, or torture him. He maintains that belief in wizardry in Nigeria is
common but not accepted. He submitted articles recounting that some people,
including children, have been tortured in other parts of Nigeria on suspicion of being
a wizard or witch.
After finding that Edionseri was credible (meaning, presumably, that he was not
prevaricating) and excusing his failure to file for asylum within one year of his arrival,
see 8 U.S.C. § 1158(a)(2)(B), (D), the IJ concluded, among other things, that
Edionseri had not suffered past persecution in Nigeria because the harms were not
inflicted by the government or private actors that the government was unable or
unwilling to control. The IJ also concluded that, though Edionseri subjectively feared
future persecution should he be removed to Nigeria, his fear was not objectively
reasonable. He was therefore not entitled to asylum, withholding of removal, or CAT
relief. The BIA upheld the decision for largely the same reasons.
We generally review the BIA's decision as the final agency action, but when the
BIA essentially adopts the IJ's opinion while adding some of its own reasoning, we
review both decisions. Juarez Chilel v. Holder, 779 F.3d 850, 853 (8th Cir. 2015). We
review the BIA's holdings on an alien's eligibility for asylum, withholding of removal,
and CAT relief under the deferential substantial-evidence standard. Id.To be eligible for asylum, Edionseri must be a "refugee," see 8 U.S.C.
§ 1158(b)(1)(A), which is someone who is unable or unwilling to return to his home
country "because of persecution or a well-founded fear of persecution on account of"
certain statutorily protected grounds. 8 U.S.C. § 1101(a)(42). An alien petitioning for
asylum must demonstrate past persecution or a well-founded fear of future persecution
due to one of the protected grounds. Garcia-Colindres v. Holder, 700 F.3d 1153, 1156
(8th Cir. 2012). The fear of future persecution must be both subjectively genuine and
objectively reasonable. Id. at 1158. We have held, moreover, that the persecution
cannot be at the hands of just anyone; it must be inflicted by a country's government
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or by people or groups that the government is unable or unwilling to control. Saldana
v. Lynch, 820 F.3d 970, 975–76 (8th Cir. 2016). In showing a government's inability
or unwillingness to control private parties, the "applicant must show that the
government either condones the conduct or is unable to protect the victims." Id. at
976.
We agree with the IJ and the BIA that the harms that Edionseri describes were
not persecution because they were not inflicted by the government or private parties
that the government was not able to control. Edionseri asserts that supernatural forces
inflicted much of the harm, and it is true as a literal matter that these are forces that
the Nigerian government was not able to control. But the IJ and BIA concluded that
the word "persecution" in the governing statute does not include harms inflicted by
supernatural forces or beings. We give substantial deference to the BIA's
interpretation of questions of immigration law, see Popescu-Mateffy v. Holder, 678
F.3d 612, 615 (8th Cir. 2012), and we think that this interpretation is abundantly
reasonable, especially since Edionseri does not identify a plausible way for the
Nigerian government to protect against supernatural forces or suggest how our
government might be better equipped to do so. It is hardly unreasonable to hold that
Congress would not require governments to do things that are quite evidently
impossible.
To the extent that Edionseri asserts that the Nigerian government was unable
or unwilling to control the devil's human agents, we think that substantial evidence
shows otherwise. The incident involving Akpoma shows that at least five police
officers responded to a call for help. When they were thwarted by the locked gate,
they demanded entry, and once they entered, they stopped the beating and ordered
everyone to return home. They invited people to make statements, but nothing in the
record indicates that anyone, including Edionseri or members of his family, made any
statements. And the mere fact that the police made no arrests after this incident is
insufficient to show that the government condones the conduct or is unable to protect
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the victims. See Saldana, 820 F.3d at 976. As for the assault that occurred a few days
later, the record about this incident is too incomplete for us to conclude that the
government condoned the conduct or was unable to help the victims. We do know that
the police again responded to Edionseri's call for help. He says that he, his mother, and
his sister were all assaulted in the presence of police, but we do not know anything
more about the circumstances. Perhaps the police were attempting to break up the
fight when the supposed assault occurred. We simply cannot tell. We also cannot tell
what the "assault" amounted to or how the actions of the police fell short, if they did.
Keeping in mind that the "[i]nability to control private actors is an imprecise concept
that leaves room for discretion by the agency," id. at 977, we conclude that substantial
evidence supports the agency's conclusion.
Substantial evidence also supports the agency's determination that Edionseri has
no objectively reasonable fear of future persecution by the government or someone
that the government was unable or unwilling to control. As we have already said,
harm inflicted by supernatural forces is not "persecution." As for harm caused by the
devil's human agents, we think that Edionseri is just as susceptible to such harm here
as in Nigeria because, as the IJ observed, supernatural beings and their agents "are
theoretically capable of targeting an asylum applicant wherever he goes, including the
United States." And as for potential harm caused by the Nigerian people's alleged
animosity toward suspected witches and wizards, we note that Edionseri's mother still
lives in the same home in Lagos, and nothing has happened to her in more than a
decade even though she was accused of witchcraft at the same time that Edionseri was
accused of being a wizard, apparently because he was his mother's offspring. See Bin
Jing Chen v. Holder, 776 F.3d 597, 601 (8th Cir. 2015). The tenants that caused these
incidents have also long been evicted, so it is unreasonable to expect harm from them.
The Nigerian government, moreover, has made progress in curbing wizard torture,
demonstrating both that Edionseri is less likely to be persecuted now than during the
ten years or so when he lived in Nigeria under the wizard label and that the
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government is not unwilling or unable to protect him against such harm. We cannot
overturn the agency's decision on this record.
Because the agency properly rejected Edionseri's asylum claim, he necessarily
failed to meet the standard for withholding of removal since relief on this ground also
requires showing that the government or private parties that the government is unable
or unwilling to control inflicted or will inflict harm. See De Castro-Gutierrez v.
Holder, 713 F.3d 375, 380 (8th Cir. 2013). Likewise, to qualify for CAT relief,
Edionseri must show that a public official will consent or acquiesce in the torture.
Saldana, 820 F.3d at 978. Given the record evidence showing the Nigerian
government's efforts to curtail the torture of suspected witches and wizards, we
conclude that substantial evidence supports the agency's denial of Edionseri's request
for CAT relief. Because our discussion fully resolves the claims presented in
Edionseri's petition for review, we need not address the other grounds for the agency's
denial of relief.
Petition denied.
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