Chibuzor Agu v. William P. Barr

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0256n.06
No. 19-3813
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT May 06, 2020
DEBORAH S. HUNT, Clerk
CHIBUZOR GLORIA AGU, )
)
Petitioner, )
ON PETITION FOR REVIEW
)
FROM THE UNITED STATES
v. )
BOARD OF IMMIGRATION
)
APPEALS
WILLIAM P. BARR, Attorney General, )
)
OPINION
Respondent. )
)
BEFORE: MERRITT, GUY, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Chibuzor Gloria Agu’s ex-husband threatened and
attacked her on three occasions in Nigeria, violent incidents that she claims were persecution on
the basis of her religious practices. Because there is substantial evidence to support the conclusion
that these three incidents were not persecution and that Agu can safely return to Nigeria, we
AFFIRM the Board of Immigration Appeal’s denial of her claims for asylum and withholding of
removal.
I. BACKGROUND
Agu is a native and citizen of Nigeria. Between 1995 and 2014, Agu was married to and
lived with her now ex-husband in Lagos, Nigeria. She testified that the ex-husband, who belonged
to an occult group known as the Ogboni Fraternity, threatened and attacked her on three separate
occasions prior to their divorce in 2014 that he initiated. On the first occasion, the ex-husband
was upset and pushed her when he discovered that Agu, who belonged to the Pentecostal Church,
No. 19-3813, Agu v. Barr
had allowed her brother to pray in their home. On the second occasion, the ex-husband again
pushed and slapped her when he found out that she was attending church. And on the third and
most violent occasion, when the ex-husband requested and Agu refused to hand over keys to her
store, he strangled and punched her, threw a concrete block at her, and threatened to kill and eat
her if she ever came back to the house.
Agu left her home, stayed in a hotel for a few days, went to live with her immediate family
out of town for a few weeks, and then returned to Lagos and stayed with extended family for about
sixteen months. During that time, Agu did not hear from or have any contact with the ex-husband,
except when she heard that he had contacted a vigilante group to kill her. She reported this threat
to the police commissioner, who arranged a meeting with her and the ex-husband. Agu testified
that the police commissioner dismissed the issue and made statements implying that she would be
harmed if she did not drop the complaint. Thereafter, neither Agu nor her family had any contact
or threats from the ex-husband, and she continued to attend the same church during this time. Agu
has also expressed fear for the terroristic activity of Boko Haram, who she said had kidnapped her
brother in the past.
Agu entered the United States on a nonimmigrant visitor visa around August 6, 2015. She
remained past the period authorized on her visa and was issued a Notice to Appear by the
Department of Homeland Security on October 13, 2017. On November 8, 2017, Agu appeared
before an immigration judge (IJ), admitted the factual allegations against her, and conceded
removability. She also applied for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT).1
1
Agu did not appeal her CAT claim to the BIA and concedes that she is not challenging the IJ’s determination of the
claim before this court.
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Before the IJ, Agu claimed that she experienced past persecution and would be subjected
to further persecution based on her membership in several particular social groups, one of which
was based on her Christian faith. The IJ found that Agu’s asylum application was time-barred and
that she did not meet any of the available exceptions to overcome the time limitation. The IJ
alternatively denied her petition on the merits.
Agu appealed the denial of her asylum and withholding claims to the Board of Immigration
Appeals (BIA), which affirmed the IJ’s findings. The BIA found that the third incident of violence,
which was the most serious, was based on a dispute over Agu’s store keys and did not have any
nexus to a protected ground. And, in considering the other two incidents together, the BIA held
that they did not rise to the level of persecution. The BIA determined that Agu could not claim a
well-founded fear of future persecution because she was able to stay in Nigeria for a period of
many months after the third incident without any attempt from the ex-husband to contact or harm
her, and thus she could reasonably relocate within Nigeria to avoid future harm.
Agu appeals, challenging the BIA’s and IJ’s determination that she did not experience past
persecution, that the third incident of violence lacked nexus to her religious practice, and that
relocation without future harm was a possibility.
II. ANALYSIS
We review the BIA’s findings of fact under the substantial evidence standard. Hachem v.
Holder, 656 F.3d 430, 434 (6th Cir. 2011). “The substantial evidence standard requires us to
uphold the Board’s findings as long as they are ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Mostafa v. Ashcroft, 395 F.3d 622, 624
(6th Cir. 2005) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). We review both the
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decisions of the IJ and the BIA when the BIA adopts the IJ’s reasoning. Gilaj v. Gonzales, 408
F.3d 275, 282–83 (6th Cir. 2005).
As a preliminary matter, the IJ held that Agu’s asylum application was time-barred because
she did not file the application within one year of her arrival to the United States, and she did not
meet the extraordinary circumstances exceptions to the time limitation. See 8 U.S.C.
§ 1158(a)(2)(B)–(D). Agu does not challenge this determination on appeal, and we lack
jurisdiction to review asylum applications denied for untimeliness on discretionary or factual
grounds. Khozhaynova v. Holder, 641 F.3d 187, 191 (6th Cir. 2011). Agu cannot prevail on her
asylum claim.
Even though Agu did not meet the statutory requirements of filing for asylum, the BIA and
the IJ denied Agu’s persecution claims on the merits as well. We now turn to the merits, which
we must review because Agu challenges on appeal the denial of her claim for withholding of
removal that is based on the same persecution claims.
Withholding of removal is a discretionary relief from removal to a country if the applicant’s
“life or freedom would be threatened in that country because of [her] race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3). To be
eligible for withholding of removal, an applicant must show past persecution or that she will “more
likely than not” be persecuted on one of the protected grounds in the future. 8 C.F.R. § 1208.16(b);
I.N.S. v. Stevic, 467 U.S. 407, 429–30 (1984). “This standard is more stringent than that governing
eligibility for asylum.” Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009) (citing Berri v. Gonzales,
468 F.3d 390, 397 (6th Cir. 2006)).
The BIA affirmed the IJ’s findings that Agu’s three incidents with the ex-husband did not
meet the definition of past persecution, including the determination that the most violent third
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incident was over Agu’s store keys and was not motivated by any protected grounds. Agu now
argues for the first time, without citation to the record, that the ex-husband wanted the keys to take
control of the store away from her, which was in turn motivated by her religious participation.
Neither her testimony nor the record support this claim.2
Considering the remaining two incidents alone, the BIA affirmed the IJ’s finding that the
incidents do not rise to the level of persecution and that she was not a member of her proposed
particular social groups. Agu does not contest on appeal the lack of nexus to any of the particular
social groups, but rather argues that the incidents were motivated by her religion. We do not need
to determine if the incidents had the requisite nexus to the protected ground of religious
participation, because Agu does not show on appeal how the incidents satisfy the standard of
persecution. To demonstrate persecution, she offers only her testimony. Based on her testimony
concerning the first two incidents, the IJ found that the ex-husband’s threats were not exceptional,
see Japarkulova v. Holder, 615 F.3d 696, 701 (6th Cir. 2010) (“The cases recognizing that threats
can sometimes amount to persecution emphasize that they will do so only in exceptional cases.”),
and the harm inflicted—he pushed and slapped her—do not rise to the level of persecution, see Ali
v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004) (“[P]ersecution is an extreme concept that does not
include every sort of treatment our society regards as offensive.”). These incidents are
reprehensible, but we have consistently held that isolated incidents of limited severity do not
amount to persecution, which “does not encompass all treatment that our society regards as unfair,
unjust, or even unlawful or unconstitutional.” Lumaj v. Gonzales, 462 F.3d 574, 577–78 (6th Cir.
2
While Agu did not raise religious practice as a protected ground before the IJ, she did propose “Christians who
oppose occult groups and their practices” as one of her particular social groups, and the IJ did find that the second of
the three incidents was motivated by her exercise of religion. For the purposes of this appeal, we do not find, as the
government suggests, that she waived any argument of persecution based on religious participation because she has
not exhausted the claim.
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2006) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)); see also Mikhailevitch v. INS,
146 F.3d 384, 390 (6th Cir. 1998). We cannot find that the BIA and IJ erred in weighing
the evidence in the record under the deferential substantial evidence standard. See Mikhailevitch,
146 F.3d at 388 (“Under this deferential standard, we may not reverse the Board's determination
simply because we would have decided the matter differently.”).
The BIA also found that Agu had not shown a well-founded fear of future persecution,
which is necessary for her asylum claim, because she was able to stay in Nigeria for about
16 months after the last violent incident. During that time, the ex-husband did not attempt to
contact or harm her, and Agu safely continued to attend the same church. The BIA also found no
evidence that the ex-husband threatened her during or after the meeting with the police
commissioner, or that the Nigerian government would be complicit in any future threats or physical
abuse. There is no evidence to support her alternative argument that she is not safe in Nigeria
because of the activities of Boko Haram—she had no interactions with Boko Haram or any other
criminal groups, and her claims are based solely on the ex-husband’s violent acts. Substantial
evidence supports the BIA’s findings, and the record lacks evidence “so compelling that no
reasonable factfinder could fail to find the facts . . . alleged.” Mostafa v. Ashcroft, 395 F.3d 622,
624 (6th Cir. 2005).
III. CONCLUSION
Agu cannot prevail on her untimely asylum claim and has not shown that she can meet the
more stringent “more likely than not” standard of future persecution for her request for withholding
of removal. We AFFIRM the BIA’s decision.
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