Awolesi v. Atty Gen USA

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

8-15-2003

Awolesi v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 02-2435P

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PRECEDENTIAL

Filed August 15, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 02-2435

JOSEPH AWOLESI and

EBENEZER AWOLESI,

Petitioners

v.

JOHN ASHCROFT, Attorney General of

the United States,

Respondent

On Petition for Review of an Order of

the Board of Immigration Appeals

(INS Nos. A73-034-576, A73-034-577)

Argued January 21, 2003

Before: BECKER, Chief Judge,* NYGAARD and

AMBRO, Circuit Judges.

(Filed: August 15, 2003)

JEFFREY A. HELLER (ARGUED)

8 Hampton Street

Cranford, NJ 07016

Counsel for Petitioners

* Judge Becker completed his term as Chief Judge on May 4, 2003.

2

ROBERT D. MCCALLUM, JR.

Assistant Attorney General,

Civil Division

CARL H. MCINTYRE, JR.

Senior Litigation Counsel

DAVID E. DAUENHEIMER

(ARGUED)

Office of Immigration Litigation

U.S. Department of Justice,

Civil Division

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Counsel for Respondent

OPINION OF THE COURT

BECKER, Circuit Judge.

This is a petition for review of an extremely terse (four

sentence) order by the Board of Immigration Appeals

(“BIA”), reversing the decision of the Immigration Judge

(“IJ”) granting the applications for asylum of petitioners,

Joseph Awolesi (“Awolesi”), and his son Ebenezer (whose

claim is derivative of Joseph’s). Awolesi testified before the

IJ that his brother, Matthew Awolesi (“Matthew”), a member

of the pro-democracy party in Nigeria and an elected

member of the local community council, was the target of

ambush and assassination attempts by the security forces

of the ruling party in Nigeria and is now in hiding. Awolesi,

who used the proceeds from his successful pharmaceutical

company in Nigeria to fund Matthew’s political career,

argues that if returned to Nigeria, he would be persecuted

by the government, which believes that he is a member of

the pro-democracy party (based on Matthew’s association

with the party). On the basis of the evidence supporting

these claims, the IJ concluded that Awolesi and Ebenezer

had shown a well-founded fear of persecution on account of

imputed political opinion.

While we give deference to the decisions of the BIA, and

must affirm its findings unless the evidence “compels” a

3

contrary conclusion, we cannot give meaningful review to a

decision in which the BIA does not explain how it came to

its conclusion. This is not a case in which the BIA affirmed

the decision of the IJ without explanation, in which case we

might scour the record for supporting evidence. Here,

instead, the BIA reversed the decision of the IJ, with only

the opaque explanation that “the evidence is insufficient”

and “the arguments made by the [INS] on appeal . . . are

persua[sive].” As a result, we cannot tell whether the BIA

was making a legal decision that Awolesi was statutorily

ineligible for asylum or whether it found Awolesi’s story

incredible. In these circumstances, we conclude that we

cannot perform meaningful review of the BIA’s order, hence

we will vacate the order of deportation and remand for

further consideration.1

I.

Awolesi and Ebenezer are citizens and natives of Nigeria.2

They arrived in the United States in February of 1993

carrying valid “visitor for pleasure” visas which authorized

them to remain until August of 1993. In October of 1993,

Awolesi applied for asylum and withholding of deportation.

In the original application, Awolesi claimed that he was

subject to persecution by the Muslim fundamentalist police

on account of his Christian religion. Awolesi’s application

for asylum was denied by the INS and he and Ebenezer

1. We note that the recently enacted Streamlining Regulations, 8 C.F.R.

§ 3.1(a)(7), which allow the BIA to affirm summarily the decision of the

IJ without adopting its reasoning, are not applicable to this case.

2. We will use the singular, Awolesi, to refer to the claims of both

petitioners since Ebenezer’s claims are essentially derivative of his

father’s. Awolesi fears that the Nigerian government may kidnap

Ebenezer as a means of coercion. This concern is supported by a 1996

State Department Report which states that “[t]he [Nigerian] regime

repeatedly engaged in arbitrary arrest and detention. . . . Police also

commonly place relatives and friends of wanted suspects in detention

without criminal charge in an effort to induce suspects to surrender to

arrest.” Awolesi’s original application for asylum included Ebenezer; in

November of 1996, Ebenezer filed a separate application after turning 21

years old.

4

were issued orders to show cause charging them as

deportable for having overstayed their visitor visas.

Awolesi appeared before the IJ and claimed that he would

be persecuted if returned to Nigeria because the

government believed that he was a member of the pro-

democracy party. Awolesi asserted that he was the owner of

a successful pharmaceutical company in Nigeria and that

the business had made approximately $90,000 a year from

1988 to 1991 and approximately $60,000 a year after that.

Awolesi claimed that he used some of the proceeds from

that business to support his brother Matthew’s political

career. Awolesi claims that Matthew had paid to send

Awolesi to college to get a bachelor’s degree and Awolesi

wanted to return the favor. Awolesi represented that

Matthew worked for the Nigerian government until 1984,

when he was fired from his position for making outspoken

political statements about the military regime that ran the

country. Awolesi contends that Matthew was a member of

the Social Democratic Party, a pro-democracy party in

Nigeria, and, with Awolesi’s financial backing, was elected

to the position of “chair person” of one of the local

community councils, governing an area with a population of

approximately 200,000 people. Awolesi stated that he also

joined the Social Democratic Party, but that he was not as

politically active as his brother.

Awolesi claims that his brother, because of his political

activity, became a target of the ruling party of Nigeria. He

maintains that Matthew was ambushed in his home in

1991. Later, in 1992, Awolesi asserts, shots were fired at

Matthew’s official car and one of his aides was seriously

injured.3 Awolesi contends that Matthew subsequently went

into hiding for fear of persecution by the Nigerian

government. Awolesi also represents that he was threatened

by members of the military and that he was told by a

“friendly government agent” that the military regime had

discussed killing him.

3. Awolesi provided a copy of an article from a local newspaper

documenting this incident. As the INS notes, however, this article

suggests that the attack was not politically motivated but was rather an

attempt to steal the vehicle.

5

Awolesi states that he fled the country in 1993 because

he was worried about the outcome of the upcoming

elections: he feared that the government would lash out

against individuals that were believed to support the pro-

democracy party.4 Awolesi took his then teenage son

Ebenezer with him, but left behind his wife and other

children (none of whom have been harmed in his absence).

Awolesi believes that he may be on a government “black

list” and would be arrested and tortured or killed if he is

returned to Nigeria.

The IJ conducted a full hearing on the merits, at the end

of which he granted asylum to Awolesi and his son based

on a showing of a well-founded fear of persecution on

account of imputed political opinion.5 In support of the

grant of asylum, the IJ reasoned as follows:

The current report on human rights practices relating

to Nigeria clearly indicates that there are substantial

problems that exist in Nigeria at the present time of a

political nature. In the submissions made by the

Respondent, he has clearly presented documentation to

show that his brother was an individual who was

politically involved in his country, and clearly that his

brother could have been and might have been a target

of political activist[s] who are against his political

opinions in his country. It is also clear, that often in

countries like Nigeria, one of the means of attacking

the political leaders is to attack certain members of

their families, and clearly, financial supporters of such

political leaders, especially if they are family members,

would be persons who could be subject to political and

physical harm.

One of the points raised by the Government Trial

Attorney is important to consider in this case, and that

is, the rest of the Respondent’s family and the person

who he refers to as his brother, who is a political

activist, all are still in Nigeria and apparently no harm

4. The pro-democracy forces won the 1993 election, but a coup d’etat

followed, returning to power the individuals who had lost the election.

5. The IJ rejected the claim of religious persecution.

6

has come to them. In regard to the brother, there can

be possibly a number of explanation[s] as to that. One,

that in hiding he has been successful in eluding the

government authorities. A second possibility is that

even if he has been unsuccessful and the authorities

do know where he is . . . it may very well be that

because his brother is a prominent individual, that the

authorities chose not to do anything to his brother

until such time that they believe his brother may pose

an immediate threat to them. On the other hand, what

about individuals who occupy less important positions

in Nigerian society, such as a brother like the

Respondent, who is not politically active. The action by

the government against such individuals would be little

moment to the general population. . . . any harm to

such persons would cause minimal disruption in the

society.

. . .

In looking at the Country Reports on Human Rights

Practices relating to Nigeria [for 1997], it is important

to note that even the State Department recognizes the

difficulties existing in Nigeria at this time. . . . “that the

government continued to enforce its arbitrary authority

throughout the federal security system. The military,

the security forces services and the national police

have through decree, decreed blocking action by the

opposition in the court. All branches of these security

forces committed serious human rights abuses.”

The INS appealed the decision of the IJ to the BIA.6 The

6. Awolesi contends that the BIA violated its own regulations by

accepting the INS’s appeal. While the INS submitted its brief to the BIA

by the required date, February 2, 1998, it did not serve Awolesi’s counsel

with a copy of the brief by this date (Awolesi provides a copy of the

postmark which indicates that service was untimely). The INS

nonetheless attested to the BIA that it had served opposing counsel by

February 2, as the BIA requires that briefs be filed with proof of service

on the other party. Awolesi contends that this amounted to fraud on the

part of the INS and that the BIA should not have accepted the appeal

because it was improperly filed. The INS responds that the BIA has

discretion to accept such appeals and that while this discretion is limited

7

BIA reversed the decision of the IJ, with the following terse

explanation:

The appeal is sustained. We have considered the

arguments made by the [INS] on appeal and are

persuaded. The evidence is insufficient to show that

the respondents were persecuted on account of an

imputed political opinion or that they would now face

persecution because of a protected ground.

Accordingly, the appeal is sustained.

We have jurisdiction pursuant to former INA § 106, 8

U.S.C. § 1105(a). We review factual determinations of the

BIA under the substantial evidence standard. See Abdille v.

Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (“Under the

substantial evidence standard, the BIA’s finding must be

upheld unless the evidence not only supports a contrary

conclusion, but compels it.”). We review the decision of the

BIA, not that of the IJ. See Abdulai v. Ashcroft, 239 F.3d

542, 549 (3d Cir. 2001).

II.

Awolesi contends that we should vacate the BIA’s

decision because its four-sentence order “is so conclusory

and deficient that it leaves nothing for this court to review.”7

Awolesi finds support for this argument in our opinion in

by due process considerations, they are pertinent only if the applicant

has shown that he was prejudiced, which Awolesi has not. We agree.

While it does not affect the outcome, it appears that the INS acted in an

unprofessional manner by making a false representation that it had

served a copy of the brief on a certain day, and we reprove it for doing

so. That said, the BIA did not err by accepting the brief because the

BIA’s own rules give it discretion to accept such briefs. At all events, it

does not appear that Awolesi has alleged that the BIA’s acceptance of the

brief amounted to a due process violation since he has not demonstrated

that he was prejudiced by the misrepresentation.

7. Awolesi also asserts that the BIA violated his due process rights with

its terse opinion. However, “the question for due process purposes . . .

is simply whether the Board made an individualized determination.”

Abdulai, 239 F.3d at 550. We are satisfied that the BIA considered

Awolesi’s individual case.

8

Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001). Abdulai

involved a decision by the BIA, affirming the IJ, which had

denied the applicant’s application for asylum and

withholding of deportation. The BIA’s decision contained

only the following analysis:

We acknowledge that the respondent has submitted

numerous articles and reports regarding general

country conditions in Nigeria. However, we note the

conspicuous lack of documentary evidence

corroborating the specifics of the respondent’s

testimony.

Id. at 547.

We concluded that the BIA had not sufficiently explained

why it affirmed the decision of the IJ, noting:

What the BIA never explains, however, is what

particular aspects of Abdulai’s [the applicant’s]

testimony it would have been reasonable to expect him

to have corroborated. Without knowing that, it is

impossible for us to review: (1) whether it was

reasonable to expect Abdulai to corroborate such

information; (2) whether Abdulai provided the requisite

corroboration; or (3) whether Abdulai adequately

explained his inability to do so.

Id. at 554 (emphasis in original).

Earlier, in Sotto v. INS, 748 F.2d 832, 836 (3d Cir. 1984),

we determined that we could not give meaningful review to

the decision of the BIA affirming the IJ where the BIA did

not explain why it discredited the sworn affidavit of the

applicant, noting only that he had “not submitted

substantial, probative evidence to corroborate his fear.” We

wrote:

We recognize that there is a possibility that the [IJ] or

the Board choose to discredit the [applicant’s] affidavit

for reasons that are within their expertise. However, if

they do not articulate such reasons, we are unable to

discharge our statutory obligation of review. To

determine whether the administrative action was

arbitrary, the courts must be apprised why evidence,

relevant and persuasive on its face, was discredited.

9

We must also review the decisions of administrative

agencies to ascertain whether the proceedings were

conducted with regularity, including whether the

agency considered the relevant evidence.

Id. at 837. See also Tipu v. INS, 20 F.3d 580, 586 (3d Cir.

1994) (“[T]he Board failed to consider one of the factors in

Tipu’s favor, a practice which in Sotto v. INS resulted in a

remand for reconsideration.”); Bastidas v. INS, 609 F.2d

101, 105 (3d Cir. 1979) (holding that the decision of the

BIA “will not be affirmed by this court unless the reasons

for such a finding are made clear”).

Likewise, in the case at bar, we are given no indication

why the BIA denied Awolesi’s petition and we cannot

determine whether it acted arbitrarily. Indeed, in Abdulai

and Sotto, the BIA at least stated that it discredited the

applicants’ accounts without explaining why or what

aspects of the accounts it found unbelievable. Here, the BIA

has not even told us that it discredited Awolesi’s testimony;

we do not know whether the BIA was making a legal

determination that Awolesi could not qualify under the

statute, even assuming his story was true, or whether it

found that Awolesi’s testimony was inconsistent. We do not

know what is meant by the BIA’s statement that “[t]he

evidence is insufficient to show that the respondents were

persecuted on account of an imputed political opinion.”

This could indicate that the evidence was legally insufficient

or that the BIA found Awolesi’s testimony incredible.

In order for us to be able to give meaningful review to the

BIA’s decision, we must have some insight into its

reasoning. For example, the BIA might explain that it did

not believe Awolesi would be tortured or killed if returned

to Nigeria because his wife and other children have not

been harmed in his absence. Or that it did not find

Awolesi’s account credible because his initial application for

asylum listed only his claim that he feared persecution if

returned to Nigeria on account of his religion. The BIA

would then have to explain why it found the IJ’s reliance on

the Country Reports and the news article documenting the

attack on Matthew Awolesi’s car unpersuasive. The BIA’s

decision may have been supported by substantial evidence,

and there may not be evidence to compel the opposite

10

conclusion. However, we simply do not know what evidence

the BIA used to come to its decision.

Most importantly, we are particularly concerned about

being able to give meaningful review to the BIA’s decision

where the BIA reverses the IJ without explanation. Abdulai

and Sotto involved decisions by the BIA affirming the IJ

without explaining why the applicants’ accounts were

unbelievable or what corroborative evidence they could

have offered. This Court, sitting in banc, has before it (sub

judice) the case of Dia v. Ashcroft, No. 02-2460 (3d Cir.

argued in banc May 28, 2003), in which the issue is

whether the recently promulgated Streamlining

Regulations, 8 C.F.R. § 3.1(a)(7), allowing a single member

of the BIA to affirm the result of the IJ’s decision and order

without adopting its reasoning, violate fundamental

principles of administrative law or due process. If we

uphold the Streamlining Regulations, BIA decisions like

those at issue in Abdulai and Sotto would likely be affirmed

so long as the BIA acted pursuant to the Streamlining

Regulations.8 However, the Attorney General has explained

that the Streamlining Regulations do not apply to summary

reversals by the BIA, noting, “A reversal or remand will

necessarily require some explanation, while an affirmance

without opinion leaves the decision below as the final

agency decision.” Executive Office for Immigration Review;

Board of Immigration Appeals: Streamlining, 64 Fed. Reg.

56,135, 56,140 (October 18, 1999) (to be codified at 8

C.F.R. pt. 3). Thus, our holdings in Abdulai and Sotto (as

well as a number of other opinions applying those

opinions), that the BIA must explain why it reversed the

decision of the IJ, will continue to be good law in cases

occurring after the promulgation of the Streamlining

Regulations, regardless of our decision in Dia.

III.

For the foregoing reasons, we will grant the petition for

review, set aside the BIA’s final decision and order of

8. The Streamlining Regulations were promulgated on October 18, 1999.

11

deportation, and remand for further consideration,

consistent with this opinion.9

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

9. Awolesi contends that the facts are so convincing that we should

reverse outright the decision of the BIA and grant his petition for

asylum. However, the Supreme Court held in INS v. Ventura, 537 U.S. 12

(2002), that courts of appeals cannot decide de novo issues that the BIA

failed to consider.