Ikharo v. Holder

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0228p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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X

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MUSA ABDUL IKHARO,

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Petitioner,

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Nos. 08-4139; 09-3587

v.

,

>

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ERIC H. HOLDER, JR., Attorney General,

N

Respondent.

On Petition for Review from the

Board of Immigration Appeals.

No. A029 432 912.

Decided and Filed: August 2, 2010

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Before: GILMAN and WHITE, Circuit Judges; THAPAR, District Judge.

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COUNSEL

ON BRIEF: Brian C. DiFranco, DiFRANCO LAW OFFICE, Columbus, Ohio, for

Petitioner. Jesse Lloyd Busen, UNITED STATES DEPARTMENT OF JUSTICE,

OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Musa Abdul Ikharo is a 50-year-old

Nigerian native who entered the United States illegally in 1981, but later became a

lawful permanent resident. In 2002, the government charged Ikharo with removability

due to his having two convictions for crimes involving moral turpitude and because of

his status as an aggravated felon. An immigration judge (IJ) found Ikharo removable as

*

The Honorable Amul R. Thapar, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

1

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 2

charged and denied his applications for waiver of inadmissibility, asylum, withholding

of removal, and relief under the United Nations Convention Against Torture (CAT).

Ikharo appealed the IJ’s decision to the Board of Immigration Appeals (BIA)

and, following a fee dispute with his counsel, he attempted to file a pro se brief. The

BIA rejected Ikharo’s brief as improperly filed, however, and summarily affirmed the

IJ’s decision. It further denied Ikharo’s motion to reconsider. For the following reasons,

we DENY review of both the BIA’s order affirming the decision of the IJ and the BIA’s

order denying Ikharo’s motion to reconsider.

I. BACKGROUND

A. The charge of removability

Ikharo entered the United States without inspection through the Canadian-

Michigan border in 1981. While living in Nigeria, Ikharo was a medical assistant in the

Nigerian Navy, but he deserted in order to immigrate to the United States. Ikharo

became a lawful permanent resident in November 1993 via an unspecified immigration

procedure and joined the United States Naval Reserve one month later. At all times

subsequent to his obtaining permanent residency, Ikharo lived in Columbus, Ohio.

Ikharo was married from 1990 to 1991 and he has three children, two of whom are

United States citizens.

In December 1994, Ikharo pled guilty in the Franklin County Court of Common

Pleas to (1) disseminating matter harmful to a juvenile, in violation of Ohio Revised

Code § 2907.31(A), and (2) gross sexual imposition, in violation of Ohio Revised Code

§ 2907.05. Ikharo was sentenced to two years of imprisonment after entering a plea of

guilty. He also received an Other Than Honorable Discharge from the United States

Navy due to his gross-sexual-imposition conviction

Eight years later, in May 2001, Ikharo was indicted in the Franklin County Court

of Common Pleas on one count of burglary, in violation of Ohio Revised Code

§ 2911.12. Following a jury trial, Ikharo was convicted on this charge and received a

90-day prison sentence. His conviction was vacated on procedural grounds, however,

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 3

by the Ohio Tenth District Court of Appeals, which held that Ikharo’s trial counsel was

ineffective. Ikharo subsequently pled guilty to the lesser-included offense of criminal

mischief in August 2003. He received a 60-day prison sentence on this reduced charge.

In October 2002, prior to the vacatur of Ikharo’s burglary conviction, the former

Immigration and Naturalization Service (now the Department of Homeland Security)

served Ikharo with a notice to appear. The agency charged Ikharo with removability

because he was an alien who, after being admitted to the United States, (1) had been

convicted of two crimes involving moral turpitude not arising out of a single scheme of

criminal misconduct, and (2) had been convicted of an aggravated felony, specifically

the sexual abuse of a minor.

Ikharo challenged the charge of removability on multiple grounds. First, he

sought waivers of inadmissibility under Sections 212(c) and (h) of the Immigration and

Nationality Act (INA), 8 U.S.C. §§ 1182(c) and (h). (Although Congress repealed INA

§ 212(c) in 1996, relief under that statute remains available for aliens “whose

convictions were obtained through plea agreements and who, notwithstanding those

convictions, would have been eligible for § 212(c) relief at the time of their plea under

the law then in effect.” INS v. St. Cyr, 533 U.S. 289, 326 (2001).) Section 212(c) allows

for a discretionary waiver of inadmissibility for “[a]liens lawfully admitted for

permanent residence who temporarily proceeded abroad voluntarily and not under an

order of deportation, and who are returning to a lawful unrelinquished domicile of seven

consecutive years.” INA § 212(c) (repealed 1996).

The BIA has held that this provision is applicable to aliens who are lawful

permanent residents regardless of whether they departed the United States following the

act or acts that render them deportable. In re Silva, 16 I. & N. Dec. 26, 30 (B.I.A. 1976).

But this relief is available only if the alien’s otherwise deportable offense is comparable

to one of the grounds of inadmissibility set forth in INA § 212(a). 8 C.F.R.

§ 1212.3(f)(5) (providing that an alien is ineligible for a § 212(c) waiver when charged

with removability as an aggravated felon “on a ground which does not have a statutory

counterpart in section 212 of the Act”).

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Ikharo claimed that he was eligible for relief under § 212(c) because he had lived

in the United States legally for more than seven years prior to his being charged with

removability. He also contended that his conviction for gross sexual imposition was not

a conviction for sexually abusing a minor and therefore did not qualify as an aggravated

felony under § 212(a).

Ikharo likewise sought a waiver of inadmissibility under § 212(h)(1)(B). Under

this provision, an alien designated as an aggravated felon is eligible for a discretionary

waiver of inadmissibility if he or she can establish that deportation “would result in

extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or

daughter of such alien.” INA § 212(h)(1)(B). In his application for relief, Ikharo

claimed that his removal would cause extreme hardship to his then 10-year-old son, a

United States citizen. Ikharo testified that he had been paying child support for his son

since 1998, but said that his son would not accompany Ikharo to Nigeria due to their

family’s Christian beliefs, the poor quality of Nigerian schools and health services, and

the fact that Ikharo would not have a home for his son.

In addition to his applications for a waiver of inadmissibility, Ikharo sought

asylum, the withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and

relief under the CAT pursuant to 8 C.F.R. §§ 1208.16 and 1208.17. Ikharo stated that,

as a Christian, he feared being persecuted by Muslims should he to return to Nigeria,

noting that his parents’ house was invaded by Muslim fundamentalists in 1997. He

added that upon returning to Nigeria for a visit shortly after the 1997 incident, he

discovered that his parents’ house had been searched and that their car and valuables had

been taken. According to Ikharo, there were “blood written signs of death on the door”

of the house.

Ikharo also sought protection from the repercussions of his decision to desert the

Nigerian Navy. He claimed that the Navy would likely court martial him and sentence

him to life imprisonment or death by firing squad for leaving the service without being

formally discharged.

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B. The removal hearing

In May 2007, Ikharo appeared and testified at his removal hearing before the IJ.

He reiterated his belief that he would be imprisoned or executed for deserting the

Nigerian Navy, adding that he had visited Nigerian military prisons prior to coming to

the United States and observed unsanitary conditions and inhumane treatment of

prisoners at those facilities. Ikharo insisted that the Nigerian military “indiscriminately”

executed deserters, despite acknowledging that Nigerian law did not include the death

penalty for such an offense. To support his argument, Ikharo presented a document

purportedly issued by the Nigerian Naval Headquarters stating that the death penalty was

imposed on deserters. Ikharo said an unnamed friend in Nigeria obtained the document

for him.

In addition to testifying about his desertion from the Nigerian Navy, Ikharo

elaborated on the persecution that he would allegedly suffer due to his Christian beliefs

if he were removed to Nigeria. Ikharo said that his parents had been members of their

church for 30 years and that his father was an active and well-known member of the

congregation. He submitted various pictures of his father preaching at the church.

According to Ikharo, members of the community easily identified him as his father’s son

and as a similarly strong supporter of the congregation.

Ikharo stated that, after their house was invaded by Muslim fundamentalists in

1997, his parents sought treatment in a hospital several hours away from their residence

in an effort to escape their attackers. He added that he sent money to his parents and

visited them after the incident, but that his mother died soon thereafter. According to

Ikharo, his father relocated to the southern region of the country and, although few

Muslims live nearby, his father still fears being tracked down and attacked by Muslim

fundamentalists. Ikharo testified that although the then-president of Nigeria was

Christian, he was unable to prevent Muslim attacks in the country. He conceded,

however, that the Muslim fundamentalists were not connected to the Nigerian

government.

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 6

Dr. Don Ibezim, a United States citizen who was born in Nigeria, testified on

behalf of Ikharo. A program manager and research specialist at The Ohio State

University, Ibezim said that he knew Ikharo when the latter was an engineering student

at Ohio State in the early 1990s. Ibezim was of the opinion that Ikharo would be

arrested and tortured upon returning to Nigeria and that Ikharo could not avoid these

consequences simply by living in another part of the country. In addition, Ibezim

recalled being told of Ikharo’s visit to Nigeria following the invasion of his parents’

house. Ibezim stated that the attack occurred during a time of much civil unrest in the

country due to conflicts between Muslims and Christians, and that several homes were

destroyed during rioting.

C. The IJ’s decision

In July 2007, the IJ issued a written decision finding Ikharo removable as

charged and denying his applications for relief. The IJ rejected the argument that Ikharo

was eligible for a waiver of inadmissibility pursuant to INA § 212(c), concluding that

Ikharo’s gross-sexual-imposition conviction constituted the aggravated felony of the

sexual abuse of a minor. Relying on In re Blake, 23 I. & N. Dec. 722 (B.I.A. 2005),

which held that convictions for the sexual abuse of minors have no statutory counterpart

in § 212(a), the IJ determined that Ikharo was ineligible for relief under § 212(c). The

IJ similarly denied Ikharo’s application for a waiver of inadmissibility under INA

§ 212(h)(1)(B), finding that Ikharo had failed to provide evidence to support his claim

that his son would experience extreme hardship if Ikharo was removed.

Next, the IJ found that Ikharo was a less-than-credible witness. Although Ikharo

had provided a letter purportedly received from the Nigerian Naval Headquarters stating

that he was a “wanted defector,” the IJ afforded the letter minimal weight due to its lack

of authentication and Ikharo’s inability to explain how he obtained it. The IJ further

doubted Ikharo’s claim that he would be tortured or executed if removed to Nigeria in

light of the fact that he had visited his parents in 1997 without incident. Ikharo was also

faulted by the IJ for failing to present affidavits, news articles, and country reports to

substantiate his fear of torture and execution. Finally, the IJ questioned Ikharo’s

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 7

testimony about his parents, noting that Ikharo presented no evidence supporting his

claim that the 1997 attack on their house was religiously motivated. The IJ also

observed that although Ikharo testified that his mother died in 1997, his 2007 asylum

application stated that both parents were still living. Collectively, these deficiencies in

Ikharo’s testimony led the IJ to conclude that Ikharo was not a credible witness.

Unlike Ikharo, the IJ found Dr. Ibezim to be a credible witness, but held that

Ibezim’s testimony did not support Ikharo’s claim of future persecution. The IJ reached

this conclusion because Ibezim “did not know [Ikharo] in Nigeria and also does not

know [Ikharo]’s family personally.” This was apparently the IJ’s way of explaining that

Ibezim was unable to verify that Ikharo’s family was persecuted by Muslim

fundamentalists.

Finally, the IJ denied all of Ikharo’s applications for relief. The IJ found that

Ikharo was statutorily ineligible for asylum due to his conviction for gross sexual

imposition, an aggravated felony. Ikharo’s applications for withholding of removal

under both INA § 241(b)(3) and the CAT were similarly denied. The IJ determined that,

although Ikharo was sentenced to only two years’ imprisonment for his gross-sexual-

imposition conviction, the offense was a “particularly serious crime” under INA

§ 241(b)(3)(B)(ii), thereby rendering him statutorily ineligible for relief. As for Ikharo’s

ineligibility for the deferral of removal under the CAT, the IJ found that Ikharo had

failed to establish that he was more likely than not to be tortured by the Nigerian

government upon returning to that country.

D. Appeal to the BIA

Ikharo appealed the IJ’s decision to the BIA in August 2007, challenging the IJ’s

conclusions that he was removable for having been convicted of an aggravated felony

and that he was ineligible for the relief he sought. In February 2008, the BIA, in

response to a motion filed by Ikharo’s then-attorney Samuel Ezenagu, extended the

deadline for Ikharo’s submission of his brief until March 17, 2008. Shortly thereafter,

Ikharo and Ezenagu became engaged in a fee dispute, and Ezenagu allegedly declined

to file a brief with the BIA unless Ikharo first paid the outstanding fee balance. Ikharo

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dismissed Ezenagu as his counsel on March 13, 2008. He then filed a pro se brief with

the BIA four days later, which the BIA rejected because it was not signed by an attorney

of record. On March 24, 2008, Ezenagu filed a motion to withdraw as Ikharo’s counsel,

which the BIA granted the following month.

In August 2008, the BIA summarily affirmed the IJ’s decision without further

opinion. Ikharo, who by this point in time had retained his current counsel, filed a

motion to reconsider that requested the BIA to accept his pro se brief as timely

submitted. Although he argued that the BIA should have accepted his pro se brief and

reconsidered its decision in light of the brief, Ikharo submitted to the BIA only the cover

and signature pages of the document. Declining to alter its previous decision, the BIA

denied Ikharo’s motion to reconsider in April 2009.

Ikharo now petitions this court for review of the BIA’s August 2008 order

affirming the IJ’s decision (No. 08-4139) and the BIA’s April 2009 order denying his

motion to reconsider (No. 09-3587). These two cases have been consolidated for review.

II. ANALYSIS

A. Jurisdiction over Ikharo’s petition for review

As an initial matter, the government contends that we do not have jurisdiction

over Ikharo’s petition to review the BIA’s order. The government argues that because

the IJ determined that Ikharo was removable as an aggravated felon under INA

§ 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), based on his conviction for gross

sexual imposition, this court’s review is precluded by statute.

Pursuant to INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), “[n]otwithstanding

any other provision of law (statutory or nonstatutory), . . . no court shall have jurisdiction

to review any final order of removal against an alien who is removable by reason of

having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii).” But this

jurisdictional bar is limited by the next subparagraph of the statute, which states that

“[n]othing in subparagraph (B) or (C) . . . shall be construed as precluding review of

constitutional claims or questions of law.” INA § 242(a)(2)(D). We also retain

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jurisdiction to determine whether Ikharo’s gross-sexual-imposition conviction was an

aggravated felony and therefore constitutes grounds for removal under INA

§ 237(a)(2)(A)(iii). See Patel v. Ashcroft, 401 F.3d 400, 407 (6th Cir. 2005) (“Thus, we

have jurisdiction to review whether § 1252(a)(2)(C) applies, i.e., whether Patel’s offense

constitutes an aggravated felony.”).

“Where the BIA summarily adopts the IJ’s decision without issuing its own

opinion, we review the decision of the IJ as the final administrative order.” Diaz-

Zanatta v. Holder, 558 F.3d 450, 454 (6th Cir. 2009). On petitions from BIA decisions,

we review questions of law de novo, “but substantial deference is given to the BIA’s

interpretation of the INA and accompanying regulations.” Khalili v. Holder, 557 F.3d

429, 435 (6th Cir. 2009). This deference, however, does not extend to the BIA’s

determination that Ikharo is an aggravated felon. Instead, the “conclusion that a

particular state conviction amounts to an aggravated felony within the meaning of

§ 1227(a)(2)(A)(iii) is reviewed de novo because such a conclusion depends upon

interpreting state statutes and federal statutes unrelated to immigration.” Patel, 401 F.3d

at 407.

Under INA § 237(a)(2)(A)(iii), “[a]ny alien who is convicted of an aggravated

felony at any time after admission is deportable.” An “aggravated felony,” for the

purposes of this statute, includes the “murder, rape, or sexual abuse of a minor.”

INA § 101(a)(43)(A), 8 U.S.C. § 1101(a)(43)(A).

The IJ concluded that Ikharo’s gross-sexual-imposition conviction constituted

the sexual abuse of a minor and was therefore an aggravated felony for INA

§ 237(a)(2)(A)(iii) purposes. In addition to the preceding statutes, the IJ relied upon the

federal-law definition of “sexual abuse” of a minor, which includes “the employment,

use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist

another person to engage in, sexually explicit conduct or the rape, molestation,

prostitution, or other form of sexual exploitation of children, or incest with children.”

18 U.S.C. § 3509(a)(8). The IJ then compared the language of Ohio’s gross-sexual-

imposition statute with the federal statute, noting that the Ohio statute prohibits, among

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 10

other things, engaging in sexual contact with a nonspouse less than 13-years old, where

the perpetrator “purposely compelled” the victim “to submit by force or threat of force.”

See Ohio Rev. Code Ann. § 2907.05. Observing that both statutes prohibit sexual

contact with a child, the IJ determined that Ikharo’s conviction constituted the sexual

abuse of a minor and, as such, that Ikharo was removable as an aggravated felon

pursuant to INA § 237(a)(2)(A)(iii). (Although the IJ failed to differentiate between the

various subsections of § 2907.05, thereby erroneously indicating that every gross-sexual-

imposition conviction under that statute necessarily involves force or threat of force, any

error in this regard was harmless because Ikharo specifically pled guilty to the gross

sexual imposition of a person less than 13-years old.)

Ikharo contested this issue before the IJ, and he alluded to the aggravated-felony

argument in his motion to reconsider before the BIA. But he did not pursue this

argument in his brief to this court. We therefore conclude that he has waived any

challenge to the IJ’s holding on this issue. See, e.g., Pagan v. Fruchey, 492 F.3d 766,

769 n.1 (6th Cir. 2007) (en banc) (“Having failed to challenge [the district court’s

qualified immunity ruling] in his briefing, Pagan has waived any argument that the

district court’s decision . . . was incorrect.”); Shkabari v. Gonzales, 427 F.3d 324, 327

n.1 (6th Cir. 2005) (holding that the petitioners had waived their claims for withholding

of removal and for protection under the CAT by referencing them only in the statement

of issues in their appellate brief). Accordingly, we lack jurisdiction to review the IJ’s

order of removal, except with regard to Ikharo’s constitutional claim.

B. Constitutional claim

Ikharo’s constitutional claim is based on his argument that the BIA’s refusal to

consider his pro se brief due to its lack of an attorney’s signature violated his right to

procedural due process. According to Ikharo, this rejection deprived the BIA of its

ability to effectively evaluate the various forms of relief he sought.

This court has summarized the analytical framework for reviewing alleged due

process violations as follows:

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We review de novo alleged due process violations in removal hearings.

We have stated that Fifth Amendment guarantees of due process extend

to aliens in removal proceedings, entitling them to a full and fair hearing.

To constitute fundamental unfairness, however, a defect in the removal

proceedings must have been such as might have led to a denial of justice.

Thus, proof of prejudice is necessary to establish a due process violation

in an immigration hearing. Therefore, reviewing an alleged due process

violation is a two-step inquiry: first, whether there was a defect in the

removal proceeding; and second, whether the alien was prejudiced

because of it.

Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir. 2005) (brackets, citations, and internal

quotation marks omitted). Our task is thus to analyze (1) whether the BIA’s refusal to

accept Ikharo’s pro se brief was a defect in his removal proceeding and, if so, (2)

whether Ikharo was prejudiced by the BIA’s refusal.

1. Defect in the proceedings

Turning to the first prong of the due process inquiry, we note that Ikharo bears

the burden of demonstrating that there was a defect in the proceedings. “[T]he mere

possibility of [a defect] is not sufficient to show actual constitutional error.” Perlaska

v. Holder, 361 F. App’x 655, 660 (6th Cir. 2010). Ikharo argues that none of the rules

governing the filing of briefs with the BIA preclude pro se submissions made directly

by the alien. He correctly points out that the regulations regarding filings with the BIA

are silent as to whether an alien’s attorney must sign a submitted brief. See 8 C.F.R.

§ 1003.3. Ikharo further relies upon the BIA’s Practice Manual, which states in relevant

part that “[n]o appeal, motion, brief, or request for Board action is properly filed without

a signature from either the alien, the alien’s representative, or a representative of the

[Department of Homeland Security].” BIA Practice Manual Ch. 3.3(b) (2004).

But the Manual also states that “[w]henever a party is represented, the party

should submit all filings and communications to the Board through the representative.

Filings should always be made by a party to the proceedings, or a party’s representative,

and not by a third party.” Id. Ch. 2.1(d). Ikharo concedes that the language in Ch. 2.1(d)

is ambiguous, but he asserts that the word “or” in the second sentence operates in the

disjunctive, thereby allowing for either aliens or their representatives to make filings.

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Moreover, Ikharo seeks leniency in the interpretation of the Practice Manual, restating

his allegation that he dismissed Ezenagu as his attorney on March 13, 2008, just four

days before his brief was due.

Ikharo makes a colorable showing that the BIA Practice Manual does not

explicitly prohibit a represented party from filing a brief pro se. Under Ch. 3.3(b),

“properly filed” briefs include those signed by aliens. And Ch. 2.1(d) does not explicitly

exclude such filings. The first sentence of the rule encourages—but does not

require—an alien’s attorney to submit all filings by providing that the represented alien

“should” submit all filings through the representative. But the second sentence indicates

that a represented alien can make such a filing. Accordingly, Ikharo has a plausible

argument that the BIA’s rejection of his brief in the absence of his attorney’s signature

constituted a defect in his removal proceedings.

2. Prejudice

We have no need to resolve this issue, however, because Ikharo is unable to

demonstrate that he was prejudiced by the existence of any such defect. “A showing of

prejudice is essentially a demonstration that the alleged violation affected the outcome

of the proceedings,” and this court does not presume prejudice. Gishta v. Gonzales, 404

F.3d 972, 979 (6th Cir. 2005) (citation omitted). The only prejudice that Ikharo points

to is the fact that his arguments regarding his applications for relief were never

considered by the BIA.

But we have no basis for determining whether these arguments would have

affected the outcome of Ikharo’s removal proceedings because Ikharo never resubmitted

his pro se brief to the BIA. Instead, when Ikharo obtained counsel and filed his motion

to reconsider with the BIA, he submitted only the cover and signature pages of the 28-

page brief. The contents of his pro se brief are therefore not in the record, nor is there

any meaningful indication regarding whether the arguments made therein would have

changed the outcome of the BIA’s decision.

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Moreover, to the extent that Ikharo’s pro se brief contained the same arguments

that he now raises on appeal, he cannot show that the brief would have affected the

outcome of his proceedings. Ikharo essentially argues that the BIA’s rejection of his

brief precluded proper consideration of the IJ’s finding that Ikharo was ineligible for (1)

a waiver of inadmissibility pursuant to INA § 212(c), (2) a waiver of inadmissibility

pursuant to INA § 212(h)(1)(B), (3) the withholding of removal under both INA

§ 241(b)(3) and the CAT, and (4) the deferral of removal under the CAT. As discussed

below, all four of his arguments are without merit.

Ikharo first contends that the IJ erred by relying on In re Blake, 23 I. & N. Dec.

722 (B.I.A. 2005), in denying his application for waiver of inadmissibility under INA

§ 212(c) because, at the time of the IJ’s ruling, the BIA’s decision in Blake was on

remand from the Second Circuit Court of Appeals. The BIA in Blake held that an alien

convicted of sexually abusing a minor is ineligible for relief under § 212(c) because the

offense constitutes an aggravated felony that has no counterpart in § 212(a). Blake, 23

I. & N. Dec. at 729. On appeal, the Second Circuit remanded the case to the BIA to

determine whether a conviction for the sexual abuse of a minor, among other crimes,

could constitute a “crime of moral turpitude” under § 212(a). Blake v. Carbone, 489

F.3d 88, 105 (2d Cir. 2007).

The BIA, however, is “not required to accept an adverse determination by one

circuit court of appeals as binding throughout the United States.” In re Anselmo, 20 I.

& N. Dec. 25, 31 (B.I.A. 1989). Because the Second Circuit’s remand in Blake is not

binding on cases arising outside of that circuit, the IJ did not commit legal error in

applying Blake to Ikharo’s application for relief.

Ikharo next asserts that, with regard to his application for a waiver of

inadmissibility under INA § 212(h)(1)(B), the IJ deprived him of the opportunity to

submit evidence that his son would face extreme hardship if Ikharo was removed. This

argument, however, is unsupported by the record. At the removal hearing, the IJ

permitted Ikharo’s attorney to submit additional briefing on his § 212(h)(1)(B) claim and

specifically instructed Ikharo to “submit any written documentation regarding child

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 14

support payments or other evidence which would demonstrate how [Ikharo] supports his

child.” Ikharo submitted a brief approximately two months later, but the brief presented

none of the evidence requested by the IJ. Instead, the brief argued only the Blake issue

discussed in the preceding two paragraphs. Ikharo therefore has not shown that he was

deprived the opportunity to present evidence in support of his § 212(h)(1)(B) claim.

In his third argument, Ikharo claims that the IJ erroneously denied his

applications for the withholding of removal under both INA § 241(b)(3) and the CAT.

The IJ held that Ikharo was ineligible for either form of relief because his conviction for

gross sexual imposition was “a particularly serious crime.” Ikharo responds by noting

that he entered his plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970),

thereby maintaining his innocence and pleading guilty only to avoid an unfavorable

result following a trial. According to Ikharo, his Alford plea cannot form the basis for

the IJ’s finding that he was convicted of a particularly serious crime because such a

determination necessarily requires the IJ to rely on factual allegations to which Ikharo

never admitted guilt.

Aliens who have been convicted of “a particularly serious crime” are ineligible

for the withholding of removal. INA § 241(b)(3)(B)(ii). A conviction (or convictions)

for an aggravated felony where the aggregate term of imprisonment imposed exceeds

five years is per se a particularly serious crime. INA § 241(b)(3)(B). But even if the

length of the sentence actually imposed for the aggravated felony is less than five years,

the BIA may still determine that the particularly-serious-crime characterization is

applicable. Id. The BIA analyzes whether a conviction is a particularly serious crime

“on a case-by-case basis” by employing the following factors: “the nature of the

conviction, the circumstances and underlying facts of the conviction, the type of

sentence imposed, and, most importantly, whether the type and circumstances of the

crime indicate that the alien will be a danger to the community.” In re Frentescu, 18 I.

& N. Dec. 244, 247 (B.I.A. 1982), superseded in part by amendment to 8 U.S.C.

§ 1253(h)(2), as recognized in In re C-, 20 I & N. Dec. 529, 533 (B.I.A. 1992). “Crimes

against persons are more likely to be categorized as ‘particularly serious crimes.’” Id.

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 15

In this case, the IJ held that Ikharo’s gross-sexual-imposition conviction was a

particularly serious crime because it involved “sexual contact with an eight-year-old

girl.” Ikharo contends that in reaching this conclusion, the IJ impermissibly relied on

facts contained in the indictment and plea agreement as well as during the plea hearing.

According to Ikharo, because he maintained his innocence of this charge by entering an

Alford plea, the IJ could not rely on the underlying factual basis to find that Ikharo had

committed a particularly serious crime.

This court, however, has held that “[a]n Alford-type guilty plea is a guilty plea

in all material respects.” United States v. Tunning, 69 F.3d 107, 110-11 (6th Cir. 1995)

(further explaining that an Alford plea “is nothing more than a guilty plea entered by a

defendant who either: 1) maintains that he is innocent; or 2) without maintaining his

innocence, is unwilling or unable to admit that he committed acts constituting the crime”

(citation and internal quotation marks omitted)). Our sister circuits have similarly

declined to differentiate between an Alford plea and a straightforward guilty plea in

comparable circumstances. In Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004), for

example, the Court of Appeals for the Second Circuit held that an Alford plea constitutes

a conviction for purposes of determining whether an alien was removable for having

committed an aggravated felony. Id. at 180-81. The court also noted that the relevant

issue was whether a conviction resulted from the proceedings, not whether there was “an

admission of guilt.” Id. at 181.

Another case on point is United States v. Guerrero-Velasquez, 434 F.3d 1193

(9th Cir. 2006). There, the Ninth Circuit held that, by entering an Alford plea to second-

degree burglary, the defendant had admitted to all of the facts contained in the

information. Id. at 1196-97. As a result, there was a sufficient basis for determining that

the defendant had committed a “crime of violence” and should receive a sentencing

enhancement under the Sentencing Guidelines. The court rejected the defendant’s

argument that he had not confessed to the underlying facts by entering an Alford plea.

It held that the key question under the Guidelines was “whether a defendant has a

conviction for a crime of violence, not whether the defendant has admitted to being

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 16

guilty of such a crime.” Id. at 1197 (emphasis in original) (citation, ellipsis, and internal

quotation marks omitted).

This rationale compels a similar outcome in the instant case. The relevant

inquiry to determine Ikhaho’s eligibility for withholding of removal requires analyzing

whether he had been convicted of a particularly serious crime, not whether he had

admitted his guilt. Ikharo’s challenge to the IJ’s denial of his applications for

withholding of removal is thus without merit and would not have changed the outcome

of his appeal to the BIA.

In his fourth and final argument, Ikharo contends that the IJ erred by concluding

that Ikharo was not eligible for the deferral of removal under the CAT. In particular,

Ikharo challenges the IJ’s adverse credibility determination based on conflicting

statements that Ikharo made about whether his mother survived the 1997 attack by

Muslim fundamentalists. Ikharo argues that this finding was not directly related to his

claim for relief.

Adverse credibility findings “must be based on issues that go to the heart of the

applicant’s claim.” Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004). Such findings

“cannot be based on an irrelevant inconsistency.” Id. (citation omitted). “If

discrepancies cannot be viewed as attempts by the applicant to enhance his claims of

persecution, they have no bearing on credibility.” Id. (citation and internal quotation

marks omitted). (The REAL ID Act of 2005 changed the standard governing credibility

determinations, see INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii), but the Act

does not apply in this case because Ikharo applied for relief prior to its effective date, see

Amir v. Gonzales, 467 F.3d 921, 925 n.4 (6th Cir. 2006).)

Contrary to Ikharo’s assertion, the discrepancy regarding whether his mother

survived the 1997 attack directly relates to his claim for protection under the CAT.

Ikharo’s claim for relief due to religious persecution was based on the 1997 attack, and

his statement that his mother died shortly after the incident suggests that her death

occurred as a result of the attack. This in turn enhances Ikharo’s claim that his family

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 17

was persecuted in Nigeria due to their Christian beliefs by indicating that their

persecution had severe consequences.

Likewise, Ikharo’s argument that the IJ improperly “relied on a corroboration

standard to make the adverse credibility finding” is to no avail. An IJ is permitted to rely

on the failure of an alien to present corroborating evidence when making a credibility

determination and where there are also inconsistencies in the alien’s testimony. See,

e.g., Berri v. Gonzales, 468 F.3d 390, 395-96 (6th Cir. 2006) (“We hold that given the

number of inconsistencies and the lack of corroborating evidence to support the Berris’

statements, the IJ’s credibility determination was a reasonable one, and we are inclined

to follow it.”). In sum, Ikharo’s challenge to the IJ’s credibility finding would not have

affected the outcome of his removal proceedings, even if the BIA had considered

Ikharo’s pro se brief.

Given this analysis, Ikharo has not shown that he was prejudiced by the BIA’s

action. We accordingly conclude that his procedural due process claim is without merit.

C. Ikharo’s petition for review of the BIA’s denial of his motion for

reconsideration

We now turn our attention to Ikharo’s petition for review of the BIA’s denial of

his motion to reconsider (No. 09-3587). This petition was brought separately from

Ikharo’s petition for review of the BIA’s order affirming the decision of the IJ (No. 08-

4139). In his brief, however, Ikharo does not challenge the BIA’s denial of his motion

to reconsider; in fact, he failed to even mention the motion to reconsider at all. We

therefore conclude that Ikharo has waived any challenge to the BIA’s denial of his

motion. See, e.g., Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005) (“It is

well-established that issues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.” (citation and internal

quotation marks omitted)).

Nos. 08-4139; 09-3587 Ikharo v. Holder Page 18

III. CONCLUSION

For all of the reasons set forth above, we DENY review of both the BIA’s order

affirming the decision of the IJ and the BIA’s order denying Ikharo’s motion to

reconsider.