Babatunde Alaba Kalejaiye v. U.S. Attorney General

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-10883
Non-Argument Calendar
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Agency No. A095-254-900
BABATUNDE ALABA KALEJAIYE,
BABATUNDE AYOTOKUNBO KALEJAIYE,
CAROLINE OLUFUNKE KALEJAIYE MODUPE,
BABAFUNLOLA AYODESOLA KALEJAIYE,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(December 5, 2013)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
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Babatunde Alaba Kalejaiye and his wife and children, citizens of Nigeria,
seek review of the Board of Immigration Appeals (BIA) final order affirming the
Immigration Judge’s (IJ) denial of Kalejaiye’s application for asylum, pursuant to
8 U.S.C. § 1158(a).1 On appeal, Kalejaiye argues that the BIA’s conclusion that
the Department of Homeland Security (DHS) rebutted his presumption of a well-
founded fear of persecution for being a Christian because he could safely relocate
to southern Nigeria was not supported by substantial evidence. Kalejaiye argues
that the BIA failed to examine all of the reasonableness factors as required by 8
C.F.R. § 1208.13(b)(3), which demonstrate that it would be unreasonable to expect
him to internally relocate. He explains that, in addition to prevalent persecution
against Christians by Muslims, Nigeria has ongoing civil strife, problems with the
administrative and judicial infrastructure, displacement of over one million people,
and widespread gender discrimination that would negatively impact his family.
I.
Kalejaiye is a citizen of Nigeria who entered the United States on or around
December 20, 2001 on a temporary visa permitting him to stay through December
1
The district court also denied Kalejaiye’s request for withholding of removal pursuant
to 8 U.S.C. § 1231(b)(3), and relief under the Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (CAT), 8 C.F.R. § 208.16(c). On appeal, the
BIA concluded that because Kalejaiye did not meet the lesser burden of proof to qualify for
asylum, he did not carry the higher burden for withholding of removal. Also, he was ineligible
for CAT relief because he did not show that it was more likely than not that he would be tortured
upon his return to Nigeria. As Kalejaiye does not appeal these claims, they are deemed
abandoned. See Access Now, Inc. v. SW Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
2
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19, 2002. In September 2002, Kalejaiye filed an application for asylum,
withholding of removal, and protection under CAT. Kalejaiye and his family are
Christians, and he served as a Vicar Warden in his church. Following several
delays and a hearing, the IJ denied all requested relief but granted voluntary
departure. On April 10, 2006, Kalejaiye appealed the IJ’s decision to the BIA,
which “adopt[ed] and affirm[ed] the decision of the [IJ] in whole, including his
determination that the respondents failed to carry their burden of proof that they
had suffered past persecution or have a well-founded fear of future persecution in
Nigeria.” Subsequently, Kalejaiye filed a motion with the BIA to reopen the case,
arguing that his counsel at initial proceedings was deficient. The BIA granted his
motion, remanding the case for further proceedings. On remand, after reviewing
significant evidence submitted from each side, the IJ denied Kalejaiye’s
application, concluding that although he suffered past persecution due to his
religion, the DHS rebutted the presumption of a well-founded fear of persecution
by a preponderance of the evidence because Kalejaiye could avoid persecution by
relocating to a different area of southern Nigeria. On appeal, the BIA affirmed,
concluding that the IJ’s determination that DHS rebutted the presumption of a
well-founded fear was not clearly erroneous.
II.
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“We review only the [BIA’s] decision, except to the extent that it expressly
adopts the IJ’s opinion. Insofar as the [BIA] adopts the IJ’s reasoning, we will
review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th
Cir. 2001) (internal citations omitted). We review legal and constitutional
questions de novo, and we “review[] factual determinations under the substantial
evidence test.” Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307 (11th Cir.
2013). This factual review is highly deferential, and we review the record in the
light most favorable to the agency decision. Kazemzadeh v. U.S. Att’y Gen., 577
F.3d 1341, 1351 (11th Cir. 2009). “[T]his Court must affirm if the BIA’s decision
is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Zhou, 703 F.3d at 1307 (internal quotation marks
omitted). Reversal based on factual findings is only appropriate if “the record not
only supports reversal, but compels it.” Id.
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). DHS has discretion to grant asylum if the alien
meets the INA’s definition of “refugee.” 8 U.S.C. § 1158(b)(1). “Refugee” is
defined as follows:
any person who is outside any country of such person’s nationality . . .
who is unable or unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.
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8 U.S.C. § 1101(a)(42)(A). The applicant carries the burden of proving statutory
“refugee” status. 8 C.F.R. § 208.13(a); Al Najjar, 257 F.3d at 1284. To establish
eligibility, the alien must, with specific and credible evidence, establish (1) past
persecution on account of a factor listed in the statute, or (2) a well-founded fear
that the factor will cause future persecution. Al Najjar, 257 F.3d at 1287.
A showing of past persecution creates a presumption of a well-founded fear
of persecution, which is subject to rebuttal. Sepulveda v. U.S. Att’y Gen., 401 F.3d
1226, 1231 (11th Cir. 2005) (per curiam). To overcome the presumption of a well-
founded fear of future persecution, the government must provide evidence for the
IJ to find either: “(1) that there has been a fundamental change in circumstances
such that the applicant no longer has a well-founded fear of persecution,” or “(2)
the applicant could avoid future persecution by relocating to another part of the
applicant’s country of nationality and under all the circumstances, it would be
reasonable to expect the applicant to do so.” Kazemzadeh, 577 F.3d at 1351–52
(internal alterations omitted). In considering the reasonableness of relocation, the
Code of Federal Regulations provides the following:
[A]djudicators should consider, but are not limited to considering,
whether the applicant would face other serious harm in the place of
suggested relocation; any ongoing civil strife within the country;
administrative, economic, or judicial infrastructure; geographical
limitations; and social and cultural constraints, such as age, gender,
health, and social and familial ties. Those factors may, or may not, be
relevant, depending on all the circumstances of the case, and are not
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necessarily determinative of whether it would be reasonable for the
applicant to relocate.
8 C.F.R. § 1208.13(b)(3). To rebut the presumption of a well-founded fear of
future persecution, the government must establish “by a preponderance of the
evidence that, under all the circumstances, it would be reasonable for the applicant
to relocate.” Id. at § 1208.13(b)(3)(ii).
We have held that, where persecution could be expected throughout a
country, relocation would not be reasonable. Arboleda v. U.S. Att’y Gen., 434 F.3d
1220, 1226–27 (11th Cir. 2006). In Arboleda, DHS did not meet its burden to
establish that petitioners could reasonably relocate because “evidence in the record
compel[led] a finding that the [militant group FARC] operate[d] country-wide in
Colombia,” and petitioner’s evidence “attest[ed] to the widespread nature of [the
militant group’s] atrocities committed throughout the entire country.” Id. Further,
the BIA’s failure to mention any of the reasonableness factors in 8 C.F.R.
§ 1209.13(b)(3) was reversible error. Id. at 1225, 27.
III.
Upon review of the record and consideration of the parties’ briefs, we deny
Kalejaiye’s petition. We review only the BIA’s decision, because it did not
expressly adopt the IJ’s opinion. See Al Najjar, 257 F.3d at 1284; see also
Arboleda, 434 F.3d at 1222.
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Substantial evidence supports the BIA’s determination that DHS rebutted
Kalejaiye’s well-founded fear of persecution because he could reasonably relocate
within southern Nigeria to avoid persecution. The 2010 International Religious
Freedom Report for Nigeria, submitted by DHS, indicated that religious conflicts
between Muslims and Christians occurred largely in the northern and central
regions of the country, while southern Nigeria was predominantly Christian.
Kalejaiye’s evidence of religious violence supported this finding, as the articles
primarily describe events of violence in the northern and central regions. Further,
although the Muslim extremist organization Boko Haram asserts that its goal is to
replace the Nigerian government with an Islamic regime, there was no evidence
this goal would be achieved. Further, although Kalejaiye maintains that the BIA
relied entirely on two U.S. State Department reports to rebut the presumption of
persecution, this court has noted that “nothing in our precedent suggests that two
country reports issued by the State Department are pre se insufficient to … rebut a
presumption of future persecution.” Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196,
1198–1200 (11th Cir. 2009).
Unlike in Arboleda, where there was danger of persecution throughout the
country, 434 F.3d at 1225–27, here the threat of persecution against Christians is
much less significant in the southern region. In Arboleda, this court considered
that after the petitioner relocated to avoid persecution by the radical group FARC,
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he and his family continued to be threatened. Id. at 1226. In contrast, here, the
evidence indicates that when Kalejaiye left Lagos and lived elsewhere in southern
Nigeria, he did not suffer persecution. In fact, here the BIA specifically noted that
Kalejaiye had traveled freely throughout the country and had fled Lagos, living
elsewhere in southern Nigeria, without harm. 2
In addition, substantial evidence supports the BIA’s determination that it
would be reasonable to expect Kalejaiye to relocate within Nigeria. See 8 C.F.R.
§ 1208.13(b)(1)(i)(B). The BIA cited § 1208.13(b)(3) and acknowledged the
reasonableness factors that it considered. The regulation does not require the IJ or
BIA to consider every factor because not all factors will be relevant in every case.
See id. § 1208.13(b)(3); see Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir.
2010). Here, the BIA considered that Kalejaiye was able to travel through central
and northern Nigeria in his official capacity as Vicar’s Warden, and he traveled
and resided in cities in southern Nigeria outside of Lagos. We do not re-weigh
evidence, and there is no evidence in the record which would compel us to reverse
the BIA’s determination that Kalejaiye could relocate to somewhere within
southern Nigeria outside of Lagos. See Zhou, 703 F.3d at 1307. Construing the
evidence in light most favorable to the BIA’s determination, the record did not
support the notion that violence against Christians would likely spread to southern
2
Kalejaiye insists that he only traveled freely in southern Nigeria prior to the 2001 attack.
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Nigeria.3 Accordingly, we deny the petition.
PETITION DENIED.
3
Although Kalejaiye points to civil strife, political problems, and gender discrimination
that was described in the DHS country reports, that evidence does not compel reversal on the
basis that it would be unreasonable to expect him to relocate to elsewhere in southern Nigeria.
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