Unuakhaulu v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EHI JOSEPH UNUAKHAULU,  No. 02-73837
Petitioner, Agency No.
v. A74-777-018
ALBERTO R. GONZALES,* Attorney  AMENDED
General, ORDER
Respondent. AND AMENDED
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 3, 2004**
Pasadena, California
Filed December 20, 2004
Amended February 14, 2005
Second Amendment July 18, 2005
Order Amended August 4, 2005
Before: A. Wallace Tashima, Raymond C. Fisher and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Fisher
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
10009
10012 UNUAKHAULU v. GONZALES
COUNSEL
Mark A. Karlin, Karlin & Karlin, Los Angeles, California, for
the petitioner.
Francis W. Fraser, Senior Litigation Counsel, United States
Department of Justice, Washington, D.C., for the respondent.
Marc Van Der Hout, Van Der Hout, Brigagliano & Nightin-
gale, LLP, San Francisco, California, for amicus curiae
National Immigration Project of the National Lawyer’s Guild.
ORDER
The text of the order filed July 18, 2005, is deleted and
replaced with the following text.
The panel judges have voted to grant the petition for
rehearing of amicus curiae National Immigration Project of
the National Lawyer’s Guild, filed May 2, 2005. The petition
for rehearing en banc is therefore moot.
The amended opinion filed February 14, 2005, and reported
at 398 F.3d 1085, is withdrawn, and is replaced by the Second
Amended Opinion, 02-73837, 2005 WL 1661580 (July 18,
2005).
UNUAKHAULU v. GONZALES 10013
No further petitions for rehearing or rehearing en banc will
be considered.
OPINION
FISHER, Circuit Judge:
Ehi Joseph Unuakhaulu, a native and citizen of Nigeria,
petitions for review of the Board of Immigration Appeal’s
(“BIA”) summary affirmance of the Immigration Judge’s
(“IJ”) decision denying him withholding of removal and relief
under the Convention Against Torture (“CAT”). The central
question is whether we lack jurisdiction to review his petition
where the IJ found that Unuakhaulu was removable based on
his aggravated felony conviction, but neither ordered him
removed on that basis nor relied on the aggravated felony
conviction in denying Unuakhaulu’s application for withhold-
ing of removal and for relief under CAT. We conclude that 8
U.S.C. § 1252(a)(2)(C) divests us only of jurisdiction to
review orders of removal that are actually based on a petition-
er’s prior aggravated felony conviction.1 We therefore have
jurisdiction to review the BIA’s nondiscretionary denial of
withholding, which was not predicated on Unuakhaulu’s
aggravated felony. Reaching the substance of Unuakhaulu’s
petition, however, we deny it as without merit.
I.
Unuakhaulu was admitted to the United States as a visitor
on January 17, 1986. In February 1997, he was convicted of
conspiracy to traffic in counterfeit credit cards in violation of
18 U.S.C. § 371 and sentenced to 18 months in prison. There-
after, the former Immigration and Naturalization Service initi-
ated proceedings against Unuakhaulu, charging him with (1)
1
Hereinafter, all statutory citations are to 8 U.S.C. unless otherwise indi-
cated.
10014 UNUAKHAULU v. GONZALES
being subject to removal as an alien convicted of an aggra-
vated felony, see § 1227(a)(2)(A)(iii),2 and (2) as an alien who
remained as a visitor beyond the time authorized, see
§ 1227(a)(1)(B). As shown in the transcript of the merits hear-
ing, the IJ sustained the charges against him, finding that
Unuakhaulu’s prior conviction for credit card fraud was an
aggravated felony and that he had remained as a visitor in the
United States beyond the time authorized. Unuakhaulu then
applied for withholding of removal and for relief under CAT.
Subsequently, the government contended that even though
Unuakhaulu received only 18 months’ imprisonment for his
prior conviction, his credit card fraud was a “particularly seri-
ous crime” that should make him ineligible for withholding of
removal under § 1231(b)(3)(B). The IJ disagreed, finding that
the crime was not particularly serious and that Unuakhaulu
was eligible for withholding of removal.
As to the merits of his withholding of removal claim,
Unuakhaulu sought withholding based on his membership in
the Ogoni tribe in Nigeria. According to his testimony, the
Nigerian government engaged in tribal genocide of the Ogoni
people, seizing their land in the delta region for its oil and
arresting and executing Ogonis solely because of their opposi-
tion to the government. He claimed that the Nigerian govern-
ment seized his father’s land in 1987.
Unuakhaulu provided no evidence to corroborate his claim
that he was a member of the Ogoni tribe. He acknowledged
2
An “aggravated felony” includes “an offense that (i) involves fraud or
deceit in which the loss to the victim or victims exceeds $10,000; . . . [or]
an offense relating to commercial bribery, counterfeiting, [or] forgery . . .
for which the term of imprisonment is at least one year; . . . [or] an attempt
or conspiracy to commit an offense described in this paragraph.”
§§ 1101(a)(43)(M), (R) and (U).
Unuakhaulu does not dispute that his prior conviction for conspiracy to
traffic in counterfeit credit cards was an aggravated felony.
UNUAKHAULU v. GONZALES 10015
that he was not a member of any Ogoni organization in the
United States. He said that he had friends who were members
of the Ogoni tribe in the Los Angeles area (where the hearing
took place) who perhaps could have corroborated his tribal
membership, but he did not ask any of them to testify on his
behalf.
Unuakhaulu’s mother lives in Lagos, Nigeria, but has not
suffered any persecution on account of her Ogoni member-
ship. His seven siblings left Nigeria because of the treatment
of the Ogoni. His uncle, a leader of the Movement to Save the
Ogoni People, was imprisoned in 1994 because he fought for
Ogoni rights and protested the government’s seizure of Ogoni
land and its arrest and torture of the Ogoni people. His uncle
is still in prison, although Unuakhaulu did not know where.
He claimed that his uncle is mentioned in an Amnesty Inter-
national report that was in evidence, but he provided no docu-
mentation to corroborate that the person mentioned in the
report was indeed his uncle.
Unuakhaulu admitted that he was not politically active
when he lived in Nigeria. When asked if there was any way
the Nigerian government could identify him in order to sub-
ject him to persecution or torture, Unuakhaulu conceded that
“[b]ecause I am not politically involved with any organiza-
tion, there is no way of identifying me.”
The IJ denied Unuakhaulu’s application for withholding of
removal and for relief under CAT, and ordered Unuakhaulu
removed. The order of removal3 provided: “It is hereby
ordered that the respondent’s application for withholding of
3
“The term ‘order of deportation’ means the order of the [immigration
judge], or other such administrative officer to whom the Attorney General
has delegated the responsibility for determining whether an alien is deport-
able, concluding that the alien is deportable or ordering deportation.”
§ 1101(a)(47). This definition has been held to apply to orders of removal
as well. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 940 (9th Cir.
2004).
10016 UNUAKHAULU v. GONZALES
removal to Nigeria and relief under the Torture Convention be
denied. It is further ordered that the respondent be removed
from the United States to Nigeria.” [AR 56.] The IJ did not
state the basis upon which Unuakhaulu was being ordered
removed and did not refer to either of the two charges in the
Notice to Appear — (1) being subject to removal as an alien
convicted of an aggravated felony, see § 1227(a)(2)(A)(iii), or
(2) as an alien who remained as a visitor beyond the time
authorized, see § 1227(a)(1)(B). Unuakhaulu appealed the IJ’s
decision denying him withholding of removal and relief under
CAT to the BIA, which dismissed his appeal without an opin-
ion. Unuakhaulu now timely petitions this court for review of
the BIA’s order.
II.
The initial question is whether § 1252(a)(2)(C) divests this
court of jurisdiction to review the BIA’s order of removal and
denial of withholding. The government argues that it does.
We have jurisdiction “to determine whether jurisdiction
exists.” Matsuk v. INS, 247 F.3d 999, 1000-01 (9th Cir. 2001)
(quoting Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th
Cir. 2000)).
[1] Section 1252(a)(2)(C) is a jurisdiction-stripping provi-
sion that precludes our “review [of] any final order of removal
against an alien who is removable by reason of having com-
mitted a criminal offense covered in section . . . 1227(a)(2)
(A)(iii) . . . .” Section 1227(a)(2)(A)(iii) in turn specifies that
“[a]ny alien who is convicted of an aggravated felony at any
time after admission is deportable [i.e., removable].”4 None-
theless, an alien such as Unuakhaulu deemed removable
4
Because the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 merged deportation and exclusion proceedings into the
broader category of removal proceedings, an alien who was previously
“deportable” is now “removable.” See Mariscal-Sandoval v. Ashcroft, 370
F.3d 851, 854 n.6 (9th Cir. 2004).
UNUAKHAULU v. GONZALES 10017
because of his aggravated felony may in limited circum-
stances still be eligible for withholding of removal if the
aggravated felony is not a “particularly serious crime.” See
§ 1231(b)(3)(B)(ii).
For purposes of determining whether the § 1231(b)(3)
(B)(ii) exception applies, the statute construes “particularly
serious crime” differently depending upon the type of relief
being sought. In the context of asylum, a person convicted of
an aggravated felony “shall be considered to have been con-
victed of a particularly serious crime,” and is thus automati-
cally barred from asylum relief in removal proceedings. See
§§ 1158(b)(2)(A)(ii), (B)(i); United States v. Corona-Sanchez,
291 F.3d 1201, 1210 n.8 (9th Cir. 2002) (en banc) (noting that
aggravated felons are “barred from eligibility for asylum”
under §§ 1158(b)(2)(A)(ii), (B)(i)).5 In the context of with-
holding of removal, however, the bar to relief is more nar-
rowly construed: an aggravated felony conviction is
considered to be a particularly serious crime (1) automati-
cally, if the applicant was sentenced “to an aggregate term of
imprisonment of at least five years”; or (2) if the Attorney
General, in his discretion, determines that an aggravated fel-
ony conviction resulting in a sentence of fewer than five years
was in fact a particularly serious crime. See § 1231(b)(3)(B).
We lack jurisdiction to review the latter denial of withholding
based upon this exercise of the Attorney General’s discretion.
Matsuk, 247 F.3d at 1002. In Matsuk, however, we left open
the “still narrower question” of whether the court has jurisdic-
tion to review “non-discretionary denials of withholding” —
that is, a decision not based on the alien’s aggravated felon
status but on the merits of his withholding claim. Id. (empha-
sis added).
Thus, there are two relevant provisions which, if applica-
ble, divest us of jurisdiction to review an order denying with-
5
Unuakhaulu does not dispute the IJ’s finding that his prior aggravated
felony conviction bars him from eligibility for asylum.
10018 UNUAKHAULU v. GONZALES
holding of removal. First, “when the alien has been sentenced
to an aggregate term of imprisonment of at least 5 years,”
§ 1231(b)(3)(B), he is automatically barred from withholding
of removal and we have no jurisdiction because the alien is
being removed “by reason of having committed a criminal
offense.” § 1252(a)(2)(C) (emphasis added). Second, when
the Attorney General decides that the alien’s offense was a
“particularly serious crime,” § 1231(b)(3)(B), we lack juris-
diction to review such a decision because it is discretionary.
§ 1252(a)(2)(B)(ii); Matsuk, 247 F.3d at 1002. Neither juris-
dictional bar applies in this case because Unuakhaulu received
only 18 months’ imprisonment for his prior conviction for
credit card fraud and the IJ specifically found that his convic-
tion was not a particularly serious crime. Indeed, she did not
rely at all on his conviction as the basis for denying his appli-
cation for withholding of removal.
The IJ found that Unuakhaulu’s prior conviction for con-
spiracy to traffic in counterfeit credit cards was an aggravated
felony that made him ineligible for asylum and voluntary
departure. (Unuakhaulu does not dispute this finding.) The IJ
also found, however, that Unuakhaulu’s aggravated felony
conviction was not a particularly serious crime because he
served only an 18-month sentence, there was no restitution
order for him to pay and he had not employed force in his
crime. (The government does not dispute this finding.) The IJ
therefore found that Unuakhaulu’s prior conviction did not
preclude him from requesting withholding of removal. She
then went on to deny his request for withholding of removal
and for relief under CAT because Unuakhaulu failed to estab-
lish those claims on the merits.
The government nonetheless contends that because
Unuakhaulu was convicted of an aggravated felony, we lack
jurisdiction over his petition for review because the jurisdic-
tional bar of § 1252(a)(2)(C) extends to all orders of removal
of an individual who has committed an aggravated felony.
However, we have held that the jurisdiction-stripping provi-
UNUAKHAULU v. GONZALES 10019
sion in § 1252(a)(2)(C) applies only when — and to the extent
that — the agency has found the petitioner to be removable
based on one of the enumerated criminal grounds. See
Alvarez-Santos v. INS, 332 F.3d 1245, 1253 (9th Cir. 2003)
(holding in part that the “by reason of” language of
§ 1252(a)(2)(C) “precludes judicial review only when [1] an
alien is actually determined to be removable and [2] ordered
removed on the basis of the covered criminal act”) (emphasis
added); see also Cazarez-Gutierrez v. Ashcroft, 382 F.3d
905, 919-20 (9th Cir. 2004) (holding that the court lacked
jurisdiction to review a petition where the “basis of the [peti-
tioner’s] removal was his drug offense and the BIA did not
overturn the IJ’s correct conclusion that [the petitioner] is
removable because of his offense.”) Thus, in Alvarez-Santos,
we rejected the government’s position that “§ 1252(a)(2)(C)
precludes judicial review of an otherwise reviewable removal
order where the record establishes that the individual could
have been but was not ordered removed for having committed
a covered criminal offense.” Alvarez-Santos, 332 F.3d at
1250, 1253 (emphasis in the original).
The government also argues that Matsuk “should be” inter-
preted as supporting the application of § 1252(a)(2)(C) to bar
review of the denial of withholding of removal whether or not
the decision to deny withholding was based upon the Attorney
General’s discretion under § 1231(b)(3)(B). In Matsuk, how-
ever, we specifically declined to reach the question of whether
we had jurisdiction to review “non-discretionary denials of
withholding” — that is, denials of withholding on the merits.
See Matsuk, 247 F.3d at 1002.
[2] Taken together, Alvarez-Santos and Matsuk lead us to
conclude that there is no jurisdictional bar over all petitions
for review filed by petitioners with an aggravated felony con-
viction in their past. Matsuk bars jurisdiction over a discre-
tionary denial of withholding pursuant to a finding of a
“particularly serious crime” under § 1231(b)(3)(B). 247 F.3d
at 1002. Alvarez-Santos holds that the “by reason of” lan-
10020 UNUAKHAULU v. GONZALES
guage of § 1252(a)(2)(C) “strips us only of jurisdiction to
review orders of removal predicated on commission or admis-
sion of a crime, not orders of removal not so predicated.” 332
F.3d at 1247. Here, although the IJ determined that
Unuakhaulu was removable on the basis of the covered crimi-
nal act, she did not order him removed on that basis. Indeed,
the IJ neither specified the basis upon which Unuakhaulu was
removed nor stated that Unuakhaulu was ordered removed
based on the charges in the Notice to Appear. Although the
IJ could have ordered Unuakhaulu removed based on his
aggravated felony conviction, she did not explicitly do so.
Moreover, the substance of the IJ’s decision demonstrates that
she did not predicate her denial of relief on Unuakhaulu’s
aggravated felony conviction. Instead, the IJ denied his appli-
cation for withholding of removal and for relief under CAT
based on Unuakhaulu’s failure to demonstrate that he would
suffer persecution if he returned to Nigeria. We accordingly
reject the government’s invitation to extend the jurisdiction-
stripping provisions to circumstances where they do not
apply. See Alvarez-Santos, 332 F.3d at 1250 (“[T]here is a
strong presumption in favor of judicial review of administra-
tive action. . . . Accordingly, we . . . construe narrowly restric-
tions on [our] jurisdiction to review INS orders removing
aliens who have been in this country, legally or otherwise.”)
(internal quotation marks and citations omitted).
[3] Because the BIA did not (1) order Unuakhaulu removed
based on his aggravated felony conviction, and (2) did not
predicate its denial of withholding of removal and relief under
CAT on Unuakhaulu’s aggravated felony conviction or on a
discretionary decision, we have jurisdiction to review
Unuakhaulu’s petition.
III.
Turning to the merits of Unuakhaulu’s petition, we con-
clude that there is substantial evidence in the record to support
UNUAKHAULU v. GONZALES 10021
the IJ’s decision to deny Unuakhaulu’s application for with-
holding of removal and for relief under CAT.
Because the BIA summarily affirmed the IJ’s decision, we
review it as if it were the BIA’s decision. See Cedano-Viera
v. Ashcroft, 324 F.3d 1062, 1063 n.1 (9th Cir. 2003). We
review legal questions the IJ addressed de novo. See
Hernandez-Montiel v. INS, 225 F.3d 1084, 1090 (9th Cir.
2000). “The [IJ]’s interpretation of immigration laws is enti-
tled to deference” when her interpretation is not “clearly con-
trary to the plain and sensible meaning of the statute.”
Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir. 2003). We
review the IJ’s factual findings under the deferential substan-
tial evidence standard. See Hernandez-Montiel, 225 F.3d at
1090. We uphold the IJ’s determination “unless the evidence
presented would compel a reasonable finder of fact to reach
a contrary result[.]” Singh-Kaur v. INS, 183 F.3d 1147, 1149-
50 (9th Cir. 1999) (emphasis in original).
[4] An alien is eligible for withholding of removal “if [ ]he
demonstrates a clear probability of persecution” in the country
to which he would be removed, “which means it is more
likely than not that [ ]he will be persecuted if deported.”
Halaim v. INS, 358 F.3d 1128, 1132 (9th Cir. 2004) (internal
quotation marks omitted); see 8 C.F.R. § 208.16(b)(2). The
alien bears the burden of proving that his “life or freedom
would be threatened in the proposed country of removal on
account of race, religion, nationality, membership in a partic-
ular social group, or political opinion.” 8 C.F.R. § 208.16(b).
If the alien can demonstrate that he suffered past persecution,
then the court presumes a reasonable fear of future persecu-
tion. 8 C.F.R. § 208.16(b)(1)(i).
[5] Unuakhaulu does not claim that he was ever subjected
to past persecution. When asked if there was any way the gov-
ernment could identify him as Ogoni in order to subject him
to persecution or torture, Unuakhaulu conceded that he would
not be recognized unless he was on tribal lands in the delta
10022 UNUAKHAULU v. GONZALES
region of Nigeria or politically active. Thus, if he returned to
Lagos, the city in which his mother resides, he would not be
singled out as Ogoni. His concession that the Nigerian gov-
ernment could not identify him as Ogoni, coupled with his
admission that he was not persecuted in the past, demonstrate
that Unuakhaulu has not met his burden of proving that it is
more likely than not that he would be subject to persecution
on account of his tribal affiliation.
Unuakhaulu argues that the IJ found his testimony credible.
He also argues that the IJ erred because she based her denial
of his application on his failure to provide corroborative evi-
dence. He claims that corroborative evidence is not always
necessary and that he provided corroboration through the
United States Department of State Country Report and the
Amnesty International report.
Once an applicant’s testimony is deemed credible, no fur-
ther corroboration is necessarily required to establish the facts
to which the applicant testified. See Kaur v. Ashcroft, 379
F.3d 876, 890 (9th Cir. 2004); 8 C.F.R. § 1208.16(b) (“The
testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.”). How-
ever, “where the IJ has reason to question the applicant’s
credibility, and the applicant fails to produce non-duplicative,
material, easily available corroborating evidence and provides
no credible explanation for such failure, an adverse credibility
finding will withstand appellate review.” Sidhu v. INS, 220
F.3d 1085, 1092 (9th Cir. 2000); see Chebchoub v. INS, 257
F.3d 1038, 1044-45 (9th Cir. 2001). Country conditions evi-
dence generally provides the context for evaluating an appli-
cant’s credibility, rather than corroborating specifics of a
claim. See Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th
Cir. 1999).
Contrary to Unuakhaulu’s contention, the IJ expressly
found that his testimony lacked credibility. She found that
parts of his testimony were “meager and nonspecific” and that
UNUAKHAULU v. GONZALES 10023
“[t]he absence of corroborative evidence where one would
reasonably expect there to be, along with an adequate expla-
nation of why such evidence was not obtained nor presented
leaves the Court to draw an adverse inference regarding the
credibility of the respondent’s claim.” She also found that cor-
roborating proof was “more than necessary here because the
respondent’s conviction is for a crime involving fraud which
already undermines his credibility.”
The IJ’s finding is supported by the record. Corroborative
evidence in this case would have been readily available.
Unuakhaulu testified that he had continuous contact with
Nigeria, yet he provided no corroboration regarding signifi-
cant factors of his claims such as his membership in the
Ogoni tribe or verification that his uncle was indeed the man
mentioned in the Amnesty International report. The IJ noted
that Unuakhaulu could have obtained affidavits from his fam-
ily members in Nigeria or had his friends in the Los Angeles
area testify on his behalf, but he did not.
The IJ found that Unuakhaulu’s testimony “basically paral-
leled” information contained in the Country Report — that
Ogonis who live in their homeland, the delta region of Nige-
ria, who are political activists are identifiable as Ogonis and
thus may be subjected to persecution by the Nigerian govern-
ment. This, however, did not establish that Unuakhaulu is a
member of the Ogoni tribe or that it is more likely than not
that he would be subjected to persecution if he were deported
to another region of Nigeria outside of the delta region.
[6] The IJ’s findings were supported by substantial evi-
dence, and Unuakhaulu failed to meet his burden of proving
that he suffered past persecution or that there is a clear proba-
bility of future persecution. We therefore deny his petition for
review.
IV.
In order to establish eligibility for protection under CAT,
Unuakhaulu must demonstrate “that it is more likely than not
10024 UNUAKHAULU v. GONZALES
that he [ ] would be tortured if removed. . . .” 8 C.F.R.
§ 208.16(c)(2). Torture is defined under CAT as an act
involving severe pain or suffering that “is 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. § 208.18(a)(1). As detailed above, Unuakhaulu did
not present evidence that it is more likely than not that he
would be tortured by, at the instigation of or with the consent
of the Nigerian government were he to be removed to Nigeria.
Because Unuakhaulu is ineligible for relief under CAT, we
deny his petition.
V.
For the foregoing reasons, we hold that we have jurisdic-
tion to review the BIA’s decision denying Unuakhaulu’s
application for withholding of removal and for relief under
CAT. The BIA’s decision is supported by substantial evi-
dence in the record and is AFFIRMED.