Onasanya v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ADEOLU ALABA ONASANYA,
Petitioner,
v.
No. 95-2943
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A72-381-712)
Submitted: March 31, 1997
Decided: April 21, 1997
Before HAMILTON and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Petition denied by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Richard S. Bromberg, Washington, D.C., for Petitioner. Frank W.
Hunger, Assistant Attorney General, Ellen Sue Shapiro, Senior Liti-
gation Counsel, Papu Sandhu, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Adeolu Alaba Onasanya, a native and citizen of Nigeria, petitions
for review of a final order of the Board of Immigration Appeals
(Board) denying his application for asylum and withholding of depor-
tation and denying his request for suspension of deportation. This
court previously granted Petitioner's motion to submit the case for
decision on the briefs without oral argument. Upon consideration of
the briefs and the administrative record, we deny the petition.
Onasanya, who overstayed a tourist visa in 1986, first challenges
the immigration judge's (IJ) finding that his asylum claim lacked
credibility because he only applied for asylum after the Immigration
and Naturalization Service placed him in deportation proceedings.
Onasanya asserts that this finding was erroneous and was not ade-
quately addressed by the Board. Where, as here, the Board chooses
to rely on the express reasoning of the IJ in a short per curiam opin-
ion, that reasoning is the sole basis for our review and will be
reversed if inadequate. Gandarillas-Zambrana v. Board of Immigra-
tion Appeals, 44 F.3d 1251 (4th Cir.), cert. denied, ___ U.S. ___, 64
U.S.L.W. 3203, 64 U.S.L.W. 3239 (U.S. Oct. 2, 1995) (No. 94-1720).
In its opinion, the Board agreed that Onasanya may indeed have
applied for asylum before he was placed in deportation proceedings.
However, the Board found that although the IJ may have been mis-
taken about that detail, the Board agreed with the IJ's analysis con-
cluding that Onasanya failed to establish a valid asylum claim.
Because the Board agreed with Onasanya on this point, and because
it cited alternative grounds for the claim's failure, the IJ's error, if
any, does not provide a basis for relief.
Onasanya also challenges the IJ's finding that Onasanya lacked
credibility due to the evasive manner in which he testified about his
2
activities leading student demonstrations and the alleged "silencing"
of his brother. Because these claims were not raised before the Board,
we find that Onasanya has waived them. Gandarillas-Zambrana, 44
F.3d at 1255; Farrokhi v. INS, 900 F.2d 697, 700-01 (4th Cir. 1990).
Onasanya next contends that the IJ erred in finding that he never
experienced political difficulties in Nigeria and that the Board over-
looked the evidence he presented of such difficulties when it evalu-
ated his asylum claim. The Immigration and Nationality Act (Act)
authorizes the Attorney General, in her discretion, to confer asylum
on any refugee. 8 U.S.C. § 1158(a) (1994). The Act defines a refugee
as a person unwilling or unable to return to his native country "be-
cause of persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group,
or political opinion." 8 U.S.C. § 1101(a)(42)(A) (1994); see M.A. v.
INS, 899 F.2d 304, 307 (4th Cir. 1990) (in banc).
The "well-founded fear of persecution" standard contains both a
subjective and an objective component. An applicant may satisfy the
subjective element by presenting "`candid, credible, and sincere testi-
mony' demonstrating a genuine fear of persecution." Berroteran-
Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992); see Figeroa
v. INS, 886 F.2d 76, 79 (4th Cir. 1989). The objective element
requires a showing of specific, concrete facts that would lead a rea-
sonable person in like circumstances to fear persecution. Huaman-
Cornelio v. Board of Immigration Appeals, 979 F.2d 995, 999 (4th
Cir. 1992).
We must uphold the determination that Onasanya is not eligible for
asylum if the finding is "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." 8 U.S.C.
§ 1105a(a)(4) (1994).
Our review reveals substantial evidence to support the IJ's finding,
adopted by the Board, that Onasanya failed to provide the specific,
concrete facts required to satisfy the objective element of a well-
founded fear of persecution under the Act. Huaman-Cornelio, 979
F.2d at 999. At the hearing, Onasanya expressed fear that he would
be arrested and "dealt with" by the current government because he
provided "reports" to officials of the former government about mili-
3
tary men who are now in power. As the IJ observed, however, there
is no evidence in the record that any member of the present regime
was the subject of the alleged reports to the previous government.
Moreover, while Onasanya cites two incidents of difficulties he
experienced in Nigeria, neither provides the requisite objective basis
for fear of persecution. As noted by the IJ, Onasanya lived for almost
a year unmolested under the government he opposed, the Babangida
military regime. When he chose to leave the country, he had no diffi-
culty obtaining a passport and leaving. In addition, he provides no
concrete information concerning how his service as a paramilitary
official in the War Against Indiscipline, in which his only specified
duty included organizing bus stops, would subject him to retaliation
by the current authorities. While it is true that the IJ noted that Ona-
sanya did not experience difficulties in Nigeria, this observation was
made in the context of an analysis of the evidence in the record. It is
clear that the IJ intended to state that there was no evidence of diffi-
culties supporting an asylum claim, as it is evident that he carefully
considered the evidence in detail before arriving at his decision.
Accordingly, Onasanya's contention that the IJ and Board overlooked
evidence which qualified him for asylum is without merit.
Finally, Onasanya challenges the denial of suspension of deporta-
tion. To qualify for the relief of suspension of deportation, an appli-
cant must prove that he has been physically present in the United
States for not less than seven years immediately preceding the date of
application, is a person of good moral character, and is "a person
whose deportation would, in the opinion of the Attorney General,
result in extreme hardship to the alien, or to his spouse, parent, or
child, who is a citizen of the United States or an alien lawfully admit-
ted for permanent residence." 8 U.S.C.A. § 1254(a)(1) (West 1970 &
Supp. 1997). The IJ found that Onasanya failed to demonstrate that
his deportation would result in extreme hardship.
Onasanya maintains that the IJ failed to consider the report pre-
pared by a social worker, at his request, which stated that his young
United States citizen children would suffer extreme hardship if he
were deported to Nigeria. We review for abuse of discretion the
denial of suspension of deportation for lack of extreme hardship.
Tukhowinich v. INS, 64 F.3d 460, 463 (9th Cir. 1995).
4
Our review of the record discloses that the IJ explicitly admitted
the social worker's report into evidence at the hearing and gave
lengthy consideration in his opinion to the effect of Onasanya's
deportation on the children. While the IJ did not refer specifically to
the report in his opinion, he amply addressed issues concerning the
children which were highlighted in the report. He observed that the
children are in good health and noted that their adjustment to life in
Nigeria would be less burdensome because of their tender years. See
Brathwaite v. INS, 633 F.2d 657, 659 (2d Cir. 1980). Moreover, he
noted that were the children to remain in the United States with their
mother, there was no evidence that the hardship they would suffer
would be more than the normal hardship expected due to separation
from a family member. See Chiaramonte v. INS, 626 F.2d 1093, 1101
(2d Cir. 1980). Finally, the IJ observed that Onasanya is a well-
educated, healthy individual with a college education, and he also
considered the political climate in Nigeria and how it would affect the
family. In light of the considerable attention focused on this issue in
the IJ's opinion, we find Onasanya's last contention to be without
merit.*
We deny the petition for review and deny Onasanya's motion to
place this matter in abeyance as moot.
PETITION DENIED
_________________________________________________________________
*Because we find that the IJ adequately considered the hardship to the
children, we need not address the Service's later submission of supple-
mental authority contending that Onasanya did not qualify for suspension
of deportation on other grounds.
5