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Interim Decision #3480

In re M-B-A-, Respondent

Decided September 24, 2002

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

A Nigerian convicted of a drug offense in the United States failed to establish eligibility for

deferral of removal under Article 3 of the Convention Against Torture because the evidence

she presented regarding the enforcement of Decree No. 33 of the Nigerian National Drug Law

Enforcement Agency against individuals similarly situated to her was insufficient to

demonstrate that it is more likely than not that she will be tortured by a public official, or at the

instigation or with the consent or acquiescence of such an official, if she is deported to Nigeria.

FOR RESPONDENT: Star Havasreti, Esquire, St. Petersburg, Florida

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Sylvia H. Alonso,

Appellate Counsel

BEFORE: Board En Banc: SCIALABBA, Chairman; DUNNE, Vice Chairman; HOLMES,

HURWITZ, VILLAGELIU, FILPPU, COLE, GRANT, MOSCATO, MILLER,

OHLSON, HESS, and PAULEY, Board Members. Concurring and Dissenting

Opinion: ROSENBERG, Board Member. Dissenting Opinion: SCHMIDT,

Board Member, joined by GUENDELSBERGER, BRENNAN, ESPENOZA, and

OSUNA, Board Members.

HOLMES, Board Member:

This case is before us pursuant to a motion filed by the Immigration and

Naturalization Service seeking en banc reconsideration of our June 8, 2001,

decision sustaining the respondent’s appeal. The Service’s motion will be

granted. Upon reconsideration, our June 8, 2001, decision will be vacated

and the respondent’s appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a 40-year-old native and citizen of Nigeria who entered

the United States on January 16, 1981, as a nonimmigrant visitor. She

subsequently adjusted her status to that of a lawful permanent resident on

December 1, 1989. The respondent was convicted on January 20, 1995, in

the United States District Court, District of Massachusetts, of importation of

a controlled substance and possession of heroin with intent to distribute, in

violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 952(a) and 841(a)(1) (1994).

She was initially sentenced to 121 months’ imprisonment, but her sentence

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was later reduced to 78 months as a result of her assistance to Government

controlled substances investigations.

On May 21, 1999, the Service issued a Notice to Appear (Form I-862)

charging that the respondent is removable under sections 237(a)(2)(A)(iii) and

(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii)

and (B)(i) (Supp. V 1999), as an alien convicted of an aggravated felony and

a controlled substance violation. In proceedings before the Immigration

Judge, the respondent, through counsel, admitted the allegations of the Notice

to Appear and conceded that she is removable as charged. The Immigration

Judge concluded that the respondent’s conviction and sentence precluded her

from establishing eligibility for any relief other than deferral of removal under

Article 3 of the Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, adopted and opened for signature

Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N.

Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United

States Apr. 18, 1988) (“Convention Against Torture” or “Convention”). The

respondent does not dispute the Immigration Judge’s finding in this regard.

In her application for protection under the Convention Against Torture, the

respondent stated that if she is returned to Nigeria she would be imprisoned

and tortured as a result of her drug conviction in this country. In support of

this claim, the respondent submitted a detailed affidavit, evidence of country

conditions in Nigeria, and a copy of a 1990 Nigerian federal military

government decree which, in part, criminalized the conduct of Nigerians who

are convicted of narcotic drug offenses in a foreign country and bring the

name of Nigeria into disrepute, or who are detected carrying a narcotic drug

into a foreign country after a journey originating from Nigeria. See National

Drug Law Enforcement Agency (Amendment) Decree 1990, Decree No. 33

(Oct. 10, 1990) (“Decree No. 33”).

During proceedings before the Immigration Judge on December 14, 1999,

the respondent testified that she had traveled to Nigeria in 1993 to meet her

then-fiancé’s family and had been unwillingly involved in drug trafficking by

his relatives and associates when she traveled back to the United States. She

testified that because of this conviction she would be immediately turned

over to drug enforcement authorities and imprisoned if she is returned to

Nigeria, that she would be in jail for years before she would be able to see

a judge, that she was subject to a mandatory 5-year term of imprisonment, and

that she would be subjected to torture while jailed.

When asked how she knew that this would occur, the respondent referred

to Decree No. 33 and also testified that some years before she had

communicated with an unnamed Nigerian friend who had been convicted of

a drug offense in this country and then returned to Nigeria. The respondent

indicated that she spoke by telephone to her friend and her friend’s parents in

1995. She was told that her friend had been detained upon her return to

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Nigeria in 1995, that her family had had to bring food and medication to the

jail and pay money for her protection, that she slept on the floor, and that

“you probably get raped and beat down” by the guards because they have

authority to do “whatever they can do.” Her friend remained in jail for

2 months until her family paid a bribe to get her released. The respondent did

not know whether her friend had gone before a judge before being

incarcerated or whether she had been raped in prison. The respondent

testified that she had had a letter from her friend, but that the Service had

misplaced “all of her paperwork” while she was in transit and that she no

longer knew the whereabouts of her friend.

The respondent further testified that there was no one to help her in Nigeria

if she were jailed. Her father had died and her mother was “presently” living

in England with her mother’s sister. However, the respondent’s mother was

not a citizen or resident of the United Kingdom and the respondent did not

know how long she would be staying in England. The respondent testified

that all of her brothers and sisters were in the United States and that her only

relations in Nigeria were an uncle and his children, but that they would not

assist her and she would not even want her uncle to know that she was in

Nigeria because he had sexually abused her as a child. The respondent did

not present any testimony from her siblings in this country or otherwise testify

regarding her relationship with them or their individual circumstances.

The respondent testified, and provided supporting medical evidence, that

she suffers from depression, a chronic ulcer, and asthma. She stated that she

had no one to rely on to supply her with medicine if she were jailed in

Nigeria. In addition, the respondent testified that she would probably be

beaten and raped by prison guards. She stated that most women are

subjected to such treatment in prison and that the government does not have

the ability to protect them. She also claimed that she would be particularly

vulnerable because her ex-fiancé would pay prison guards to harm her

because of her cooperation with drug enforcement authorities in this country.

The respondent indicated that her ex-fiancé was now in Nigeria, but she did

not testify to any communications from or about him, or otherwise identify a

specific basis for her claim that he had the ability and intent to cause her harm

if she were detained in Nigeria.

Following this hearing, the Immigration Judge requested that the parties file

briefs to address the issues presented, including whether the respondent

would be imprisoned without trial upon her return to Nigeria. The Service

filed a memorandum in which it noted that it was unclear whether Decree No.

33 was still in effect or had been repealed by the 1999 Constitution of the

Federal Republic of Nigeria. In a decision dated January 5, 2000, the

Immigration Judge found the respondent removable and denied her application

for deferral of removal, concluding that, even if she were imprisoned under

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Decree No. 33, the respondent had failed to establish that it was more likely

than not that she would be tortured in prison.

Following an appeal by the respondent, the case was remanded by the

Board to the Immigration Judge on September 6, 2000, for procedural reasons

arising from the fact that the respondent had not been provided an opportunity

to rebut the evidence regarding the new Nigerian constitution that was first

raised in the Service’s post-hearing memorandum. In that decision, we also

specifically directed the Immigration Judge to address the respondent’s claim

that it is more likely than not that she would be imprisoned if returned to

Nigeria. The parties responded by submitting memoranda of law and

supporting documents. Neither party sought to present any further testimonial

evidence. In a November 29, 2000, decision, the Immigration Judge again

denied the respondent’s application for relief. He addressed the additional

evidence submitted by the parties and concluded that the respondent still had

not met her burden of proving that she would be imprisoned and tortured in

Nigeria. The respondent filed an appeal from this decision, which was

sustained in a Board panel decision issued on June 8, 2001. The Service

timely submitted the present motion seeking en banc reconsideration of that

decision. We have decided to reconsider the decision en banc. See 8 C.F.R.

§ 3.1(a)(4)(i) (2002).

II. ISSUE ON APPEAL

The issue on appeal is whether the respondent has met her burden of

establishing that she is eligible for deferral of removal under the Convention

Against Torture by proving that it is more likely than not that she will be

imprisoned and tortured in Nigeria by a public official, or at the instigation

or with the acquiescence of such an official, if she is returned to that country.

III. ANALYSIS

In order to establish eligibility for deferral of removal, the respondent must

show that it is more likely than not that she will be subject to torture by a

public official, or at the instigation or with the acquiescence of such an

official. See 8 C.F.R. §§ 208.16(c)(4), 208.18(a) (2002); see also Matter of

G-A-, 23 I&N Dec. 366 (BIA 2002); Matter of Y-L-, A-G- & R-S-R-, 23 I&N

Dec. 270 (A.G. 2002); Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000). The

respondent has claimed that if she is returned to Nigeria she will be arrested

and imprisoned without trial for 5 years pursuant to Decree No. 33,1 and that

1

This decree provides that a Nigerian citizen who is convicted of a narcotic drug offense in

a foreign country, or who is detected carrying a narcotic drug into a foreign country after a

journey originating from Nigeria, “shall be liable to imprisonment for a term of five years

(continued...)

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while in prison she will be tortured by guards. Thus, the respondent must

demonstrate, inter alia, that enforcement of Decree No. 33 will more likely

than not result in her detention and torture in Nigeria upon her return to that

country. We find that she has not met her burden of proof in this regard.

In our decision of September 6, 2000, remanding the case to the

Immigration Judge, we noted that the Immigration Judge should more

specifically address the respondent’s claim that it was more likely than not

that she would be imprisoned if returned to Nigeria. On remand, the

Immigration Judge advised the parties that he expected that issue to be

addressed in their submissions. Although the respondent submitted additional

documentation regarding country conditions in Nigeria and evidence in

response to the Service’s claim that the new Nigerian constitution may have

repealed Decree No. 33, nothing further was offered with regard to the

manner of enforcement of this decree. It is unclear whether the respondent

chose to rest on the evidence of record or was unsuccessful in uncovering any

additional information relevant to this matter. Whichever was the case, the

respondent’s evidence regarding the manner of enforcement of Decree No. 33

largely remains that which was presented at the 1999 proceedings. We find

this evidence insufficient to demonstrate that it is more likely than not that the

respondent will be detained or imprisoned if she is returned to Nigeria.

The actual status of Decree No. 33 is not entirely clear on the record

before us, but we will assume that it has not been repealed and is

enforceable. However, even assuming that such is the case, there is little

evidence of record on which to base any meaningful conclusion regarding the

extent to which this provision is presently enforced, and how and against

whom it is enforced. The fact that the decree is written in mandatory terms

is not in itself determinative because it is common to couch criminal

provisions in such terms. For example, virtually all of the criminal provisions

of Title 18, United States Code, omit any specific reference to a right to trial

and provide that anyone guilty of the offense in question “shall be punished”

or “shall be imprisoned.” See, e.g., 18 U.S.C. § 1111(b) (2000) (“Within the

special maritime and territorial jurisdiction of the United States, [w]hoever

is guilty of murder in the first degree shall be punished by death or by

imprisonment for life.”).

The respondent’s own evidence concerning the present manner of

enforcement of Decree No. 33 does not go much beyond conjecture, and her

reference to the circumstances that were related to her by her friend and her

friend’s parents in 1995 involved one individual some 7 years ago under a

1

(...continued)

without an option of fine.” See generally McDaniel v. United States INS, 142 F. Supp. 2d

219, 223 (D. Conn. 2001); United States v. Ibekwe, 891 F. Supp. 587 (M.D. Fla. 1995).

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different regime in Nigeria.2 While Nigeria has had chronic problems with

drug trafficking and has been a country with a poor human rights record and

endemic corruption in its judicial system, it is also a country in which

“domestic and international human rights groups generally operate without

government restriction, investigating and publishing their findings on human

rights cases.” Bureau of Democracy, Human Rights and Labor, U.S. Dep’t

of State, Nigeria Country Reports on Human Rights Practices - 2001 (Mar.

2002), available at http://www.state.gov/g/drl/rls/hrrpt/2001/af/8397.htm.

The respondent has been represented in these proceedings since 1999, and the

importance of providing evidence on the issue of the likelihood of her

detention has been emphasized. On the record before us, we are not satisfied

that she has met her burden of providing adequate evidence to establish that

it is more likely than not that her return to Nigeria would result in her

detention or imprisonment.

In this regard, we do not find it sufficient for the respondent simply to cite

the existence of Decree No. 33 and her unnamed friend’s experiences in

1995. The respondent must provide some current evidence, or at least more

meaningful historical evidence, regarding the manner of enforcement of the

provisions of Decree No. 33 on individuals similarly situated to herself. Cf.,

e.g., Matter of G-A-, supra, at 369-70 (“[W]e find that the respondent would

be subject to close scrutiny upon his return [to Iran] after spending 25 years

in the United States, and he would likely be detained and interrogated as a

result.”); Matter of J-E-, 23 I&N Dec. 291, 299 (BIA 2002) (“It is

undisputed that the respondent will be subject to detention of an indeterminate

length upon his return to Haiti.”).

The respondent’s eligibility for deferral of removal rests upon a finding that

it is more likely than not that she will be identified as a convicted drug

trafficker upon her return to Nigeria; that, as a result, she will be detained on

arrival; that, when detained, she will be held in detention without access to

bail or judicial oversight; that she will be detained for a significant period of

time; and that, as a result of this detention, she will suffer mistreatment that

rises to the level of torture at the hands of prison guards or authorities. Given

the evidence of harsh and life-threatening prison conditions in Nigeria and the

serious drug trafficking problems that Nigerian authorities are attempting to

address, the respondent’s fear of return to her home country is

understandable. On the record before us, however, we find that the

respondent’s case is based on a chain of assumptions and a fear of what might

happen, rather than evidence that meets her burden of demonstrating that it is

more likely than not that she will be subjected to torture by, or with the

2

On May 29, 1999, President Obasanjo was inaugurated to a 4-year term, replacing the

previous military regime in Nigeria.

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acquiescence of, a public official or other person acting in an official capacity

if she is returned to her home country.

Consequently, we agree with the Immigration Judge that the respondent has

not met her burden of demonstrating that it is more likely than not that she

would be tortured by, or with the consent or acquiescence of, government

officials acting under color of law if she is removed to Nigeria.3 Accordingly,

the Service’s motion to reconsider will be granted and the respondent’s

appeal will be dismissed.

ORDER: The motion to reconsider en banc by the Immigration and

Naturalization Service is granted, and our June 8, 2001, decision is vacated.

FURTHER ORDER: The respondent’s appeal is dismissed.

CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg,

Board Member

I respectfully concur in part and dissent in part.

I agree that the respondent bears the burden of proof as articulated in

Matter of J-E-, 23 I&N Dec. 291 (BIA 2002), and Matter of G-A-, 23 I&N

Dec. 366 (BIA 2002), and that our determination of the motion to reconsider

filed by the Immigration and Naturalization Service is governed by those

decisions. See also Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270 (A.G.

2002). Therefore, I concur to that extent with the majority opinion.

However, measured by the proper standard, the evidence reflects that it is

more likely than not that the respondent will be detained and imprisoned

under Decree No. 33 or other existing enforcement practices in Nigeria

because she has been convicted of drug trafficking, and that the treatment she

3

Requiring the respondent to meet her burden of proof by presenting evidence from which

one would conclude that it is more likely than not that she would be subject to torture if

returned to her home country does not convert this burden into a requirement that she establish

the likelihood of torture beyond a reasonable doubt. This is a case in which, in an exercise of

caution, the record was specifically remanded, in part, to address the respondent’s claim that

it is more likely than not that she would be imprisoned if returned to Nigeria. Yet none of the

principal evidence relied upon in the concurring and dissenting opinion of Board Member

Rosenberg is evidence of record. Moreover, the cited news articles would not have changed

the result in this case even if they were matters of record. Two of the three articles make no

specific reference to Decree No. 33 and pertain to the enforcement of Nigerian drug laws

against those charged with possession of drugs or an attempt to smuggle drugs. For example,

one of these articles discusses a woman detained at the airport in Lagos who was ultimately

found to be in possession of heroin with a street value of $100,000. The third article notes

that the controversy surrounding the constitutionality of Decree No. 33 has been laid to rest,

but it does not reference instances of its actual enforcement against individuals in the

respondent’s circumstance. Rather, the article discusses suspected drug peddlers caught in

Nigeria in possession of drugs, including one who was arrested in a second incident of drug

possession after having been “granted bail” by a Nigerian court. As noted above, we have

assumed that Decree No. 33 is enforceable, and we have no question that the Nigerian

Government is actively attempting to address that country’s serious drug trafficking problems.

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will be subjected to once in prison will amount to torture. See National Drug

Law Enforcement Agency (Amendment) Decree 1990, Decree No. 33

(Oct. 10, 1990) (“Decree No. 33”). A fair review of our June 8, 2001,

decision, read in light of our recent precedent, requires denial of the Service’s

motion to reconsider. Accordingly, I dissent.

I. ADJUDICATION OF A MOTION TO RECONSIDER

The majority does not explain why it is appropriate to grant

reconsideration, but simply proceeds to adjudicate the motion and redecide

the appeal in favor of the Service, notwithstanding the fact that a panel of this

Board had fully considered the parties’ positions on appeal and reached a

contrary conclusion. Nevertheless, we are not charged with granting motions

to reconsider willy nilly, but must judge them according to an articulated

standard, no matter which party files the motion.

A motion to reconsider pursuant to 8 C.F.R. § 3.2(b) (2002) is not broadly

available, but is subject to certain restrictions. It is a request that we

reexamine our original decision in light of an additional legal argument, an

aspect of the case which was overlooked, or an intervening change in the law.

See Matter of Cerna, 20 I&N Dec. 399, 402 (BIA 1991), aff’d, 979 F.2d 212

(11th Cir. 1992) (unpublished table decision); see also Board of Immigration

Appeals Practice Manual, § 5.7(a), at 70 (“A motion to reconsider either

identifies an error in law or fact in a prior Board decision or identifies a

change in law that affects a prior Board decision and asks the Board to

re-examine its ruling.”). Although the majority does not identify any one or

more of these bases on which it would be appropriate to grant the Service’s

motion to reconsider, I am inclined to find that reconsideration is appropriate

in light of the intervening decision of the Attorney General in Matter of Y-L-,

A-G- & R-S-R-, supra, as well as our subsequent decisions in Matter of J-E-,

supra, and Matter of G-A-, supra.

II. LIKELIHOOD OF TORTURE BASED ON

EVIDENCE IN THE RECORD

The majority’s analysis turns on the evidence in the record, finding it to be

insufficient to satisfy the respondent’s burden of proof under the “more likely

than not” standard provided in 8 C.F.R. § 208.16(c)(2) (2002). According to

the majority’s reasoning, the respondent’s claim that it is more likely than not

that she will be identified, imprisoned, and subjected to torture upon her

return to Nigeria is little more than a product of her speculation. I disagree.

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A. Imprisonment Under Decree No. 33

In moving for en banc reconsideration of our opinion, the Service contends

that the Board erred in finding that the respondent met her burden of proving

that it is more likely than not that she would be tortured if returned to Nigeria.

The Service appears to challenge the existence of Decree No. 33, which

provides that any Nigerian found guilty of importation of narcotic or

psychotropic drugs or substances abroad, who thereby brings the name of

Nigeria into disrepute, is guilty of an offense and liable to be imprisoned for

5 years. See Decree No. 33, § 12A(2), (3). The Service contends that the

respondent submitted a barely legible copy of section 12A of the Decree and

suggests that it is “unclear” whether the law has been repealed.

Although the majority opinion acknowledges the existence of Decree No.

33, the majority rejects the likelihood that it will be enforced and the

respondent will be imprisoned. The majority also acknowledges that the

respondent testified she would be handed over to drug enforcement officials

upon her forcible return to Nigeria, and that she would be detained and

subject to 5 years’ imprisonment under Decree No. 33, but finds these

expressed concerns to be no more than conjecture. In addition, despite

conceding that Decree No. 33 continues in force, the majority asserts that the

record lacks sufficient evidence to indicate how it is enforced or that it would

be enforced against the respondent. Matter of M-B-A-, 23 I&N Dec. 474, 478

(BIA 2002). According to the majority, the evidence provided by the

respondent offers little more than a “chain of assumptions,” which does not

meet the respondent’s burden of proof. Id. at 479.

However, notwithstanding the majority’s protestations, we may take

administrative notice of the fact that international journalists continue to

report the aggressive enforcement of Decree No. 33. See Matter of S-M-J-,

21 I&N Dec. 722, 728 n.2 (BIA 1997); Matter of R-R-, 20 I&N Dec. 547,

551 n.3 (BIA 1992), and cases cited therein (stating that it is well established

that administrative agencies may take administrative notice of commonly

known facts). First, a recent news report indicates that, as a result of a

Nigerian Federal High Court ruling that the “Decree does not portend double

jeopardy,” the constitutionality of Decree No. 33 has been affirmed.

Sylvester Ebhodaghe, NDLEA arrests 779 suspected drug peddlers, The

Guardian web site (Lagos, Nigeria), Aug. 4, 2000, available at 2000 WL

25038682.

Second, recent news reports confirm that enforcement is even greater under

the present Obasanjo regime. For example, on June 17, 2002, the Xinhua

News Agency reported that “[t]o stem the spread of the menace, the

incumbent administration undertaken by President Olusegun Obasanjo has

been keeping up its fights against drug abuse and trafficking among Nigerians

by all legitimate means.” 110 Drug Traffickers Arrested in Southern

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Nigeria, Xinhua News Agency, June 17, 2002, available at 2002 WL

22619255.

Third, women are not exempt from being targeted and punished as drug

smugglers. As Newsday, Inc. reported in a May 6, 2002, article, the Nigerian

drug enforcement agency charged nearly 100 women with smuggling drugs in

2001, and this year’s arrests even included a 64-year-old grandmother and a

flight attendant for Nigerian Airways.

Samson Mulugeta (Africa

Correspondent), Nigerian Drug Rings Using Creative Tactics/Enlist

non-profile carriers to help smuggle heroin, Newsday, Inc., May 6, 2002, at

A12, available at 2002 WL 2741793. These news articles reflect that the

decree exists, that it is actively enforced by the Obasanjo government, and

that it is enforced against women.

B. Torture in Nigerian Prisons

The dissenting opinion of Board Member Schmidt correctly points out that,

within the interpretation set forth in Matter of J-E-, supra, certain prison

conditions amounting to “deliberate vicious acts” may constitute torture, even

when imprisonment results from the imposition of lawful sanctions. Matter

of M-B-A-, supra, at 488 (Schmidt, dissenting). The dissent notes that

Nigerian prison officials, police, and security forces are reported to have

deliberately denied inmates food and medical treatment. The dissenting

opinion stresses that such deliberate mistreatment is not merely negligent or

accidental, but intentional. Id. at 490.

Moreover, the dissent indicates that the Department of State country report

for Nigeria estimates that reputable human rights organizations have reported

that inmates in Nigerian prison custody die daily due to harsh conditions and

the denial of medical treatment. Bureau of Democracy, Human Rights, and

Labor, U.S. Dep’t of State, Nigeria Country Reports on Human

Rights Practices - 2001 (Mar. 2002), available at

http://www.state.gov/g/drl/rls/hrrpt/2001/af/8397.htm (“Country Reports”).

Although the exact number is difficult to obtain because officials fail to keep

proper records, such a report certainly raises legitimate questions concerning

prison conditions and the deliberate mistreatment of certain prisoners.

Rather than consider how such information in the Country Reports bolsters

the respondent’s claim that it is more likely than not that she will be tortured

upon her return to Nigeria, the majority points to the fact that the Country

Reports indicate that human rights groups generally operate without

government restriction in Nigeria. Matter of M-B-A-, supra, at 479.

However, the ability of human rights groups to investigate conditions within

Nigeria does not mean that Decree No. 33 is not enforced, that conditions in

Nigerian prisons do not rise to the level of torture, or that more definitive

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proof of the enforcement of Decree No. 33 should be available to the

respondent.

C. Adjudication Under the “More Likely Than Not” Standard

The United States Court of Appeals for the Eleventh Circuit, in which this

case arises, has recognized that “[i]n making out a claim under CAT, ‘[t]he

burden of proof is on the applicant . . . to establish that it is more likely than

not that he or she would be tortured if removed to the proposed country of

removal.’” Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001)

(quoting 8 C.F.R. § 208.16(c)(2) (2001)). The “more likely than not”

standard was addressed in INS v. Stevic, 467 U.S. 407, 430 (1984), as “a

familiar one to immigration authorities and reviewing courts.”

By its terms, this standard requires evidence of a greater than 50% chance

that an event will occur. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431

(1987), in which the Supreme Court differentiated the “more likely than not”

standard from a less stringent standard, ruling that “[o]ne can certainly have

a well-founded fear of an event happening when there is less than a 50%

chance of the occurrence taking place.” Thus, the “more likely than not

standard” requires the applicant to establish the elements of his claim by a

preponderance of the evidence.

The preponderance of the evidence standard, which is applied in most civil

cases, requires a lesser quantum of proof than the “clear and convincing”

standard and is significantly less stringent than the “beyond a reasonable

doubt” standard used in criminal proceedings. Matter of Patel, 19 I&N Dec.

774, 783 (BIA 1988) (citing Addington v. Texas, 441 U.S. 418, 425 (1979)).

The burden of showing something by a preponderance of the evidence

“simply requires the trier of fact ‘to believe that the existence of a fact is

more probable than its nonexistence before [he] may find in favor of the party

who has the burden to persuade the [judge] of the fact’s existence.’” In re

Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring) (quoting F.

James, Civil Procedure 250-51 (1965)). “Unlike other standards of proof

such as reasonable doubt or clear and convincing evidence, the

preponderance standard ‘allows both parties to share the risk of error in

roughly equal fashion’ . . . .” Metropolitan Stevedore Co. v. Rambo,

521 U.S. 121, 137 (1997) (quoting Herman & MacLean v. Huddleston,

459 U.S. 375, 390 (1983)); see also Addington v. Texas, supra, at 423.

In my view, the majority imposes a standard far beyond that required to

qualify for relief under the statutory and regulatory provisions of the

Convention Against Torture. See Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened

for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No.

51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,

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1987; for the United States Apr. 18, 1988) (“Convention Against Torture” or

“Convention”). The majority dismisses proof of Decree No. 33, the

respondent’s status as a convicted drug trafficker, her forcible return to

Nigeria, and evidence of the mistreatment of a similarly situated friend some

years earlier, and it demands either more “current evidence” or “meaningful

historical evidence” before the respondent can establish that it is more likely

than not that she will be identified, imprisoned, and tortured. Matter of

M-B-A-, supra, at 479. If we actually quantify and apply the standard

imposed by the majority, we must conclude that the respondent is charged

with establishing the likelihood of torture beyond a reasonable doubt.

However repugnant noncitizens convicted of criminal offenses may be, that

is not the proper standard.

It is critical to recognize that we do not have the benefit of an accomplished

act to examine. Furthermore, it has long been accepted that “[t]he victim may

not know the exact motivation of his or her persecutor, nor . . . are

persecutors ‘likely to provide their victims with affidavits attesting to their

acts of persecution.’” Karen Musalo, Irreconcilable Differences? Divorcing

Refugee Protections from Human Rights Norms, 15 Mich. J. Int’l L. 1179,

1202 (1994) (quoting Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th

Cir. 1985)). Accordingly, in assessing whether it is more likely than not that

the respondent will face torture in a Nigerian prison once returned to Nigeria,

it is necessary to draw inferences about what may happen in the future and

the reasons it may occur. Matter of S-P-, 21 I&N Dec. 486, 494 (BIA 1996)

(citing INS v. Elias-Zacarias, 502 U.S. 478 (1992)).

The Service argues that the June 8, 2001, Board panel erred in finding that

Nigeria’s prosecution and imprisonment of citizens convicted abroad of drug

offenses is a violation of the Convention Against Torture because such

conviction and imprisonment is a lawful sanction. The Service asserts in

addition that the respondent failed to establish that her treatment in prison

would exceed that which would be considered “inherent or incidental” to

incarceration and thus amount to torture.1

The respondent contends, however, that neither the Immigration Judge nor

the Board had any difficulty reading or understanding the content of Decree

No. 33. In addition, she notes that she testified that she knew of someone

imprisoned pursuant to Decree No. 33 and had provided her attorney with the

document. She also cites to documentary evidence she provided

substantiating her contentions that prison guards raped and beat female

prisoners, and corroborating the deliberate deprivation and withholding of

food and medication by prison officials, all of which would cause a woman

with chronic asthma, such as the respondent, severe mental and physical pain

1

The Service did not file a brief in response to the respondent’s appeal and did not argue any

of these points on appeal, but raised most of these arguments before the Immigration Judge.

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and suffering. She emphasizes that such intentional mistreatment, even if

subject to lawful sanction, defeats the object and purpose of the Convention

to prohibit torture and thereby violates the Convention Against Torture.

In Matter of G-A-, supra, at 369, the Board found that a respondent who

believed he would be “subject to torture or death” in Iran because of a drug

conviction was entitled to protection under the Convention Against Torture.

Our decision relied on evidence that the respondent, who was of a particular

ethnicity, was identifiable, and that conditions in Iranian prisons are so severe

as to amount to torture. Id. at 369-70.

It was the combination of the traits possessed by the respondent in G-Aand the evidence of widespread use of torture in Iran that led us to conclude

that the respondent was likely to be subjected to torture if deported to Iran.

Matter of G-A-, supra, at 369 (crediting the respondent’s testimony that he

would be identifiable and come to the officials’ attention due to his ethnicity,

many years in the United States, and apparent loss of legal status evidenced

by deportation). We specifically accepted the respondent’s contention that,

once identified, “both his criminal history and his attempt to apply for asylum

in the United States would be discovered, and that he would likely be ‘subject

to torture or death’ as a consequence of ‘being deported with a drug

conviction.’” Id. (emphasis added).

I do not see how either the respondent’s circumstances or conditions in

Nigerian prisons are meaningfully different or warrant a different result. By

virtue of being forcibly removed, the respondent is as identifiable to Nigerian

authorities as was the respondent in Matter of G-A-. Credible news reports

reflect that Decree No. 33 is being actively enforced and that women

smugglers are not immune from its enforcement. It may be that as a general

rule, prison conditions alone would not meet the definition of torture. Matter

of J-E-, supra. However, as the dissent points out, we must focus on the

specific evidence presented in each case rather than relying on blanket

conclusions. The majority fails to do so.

The significant factors that should be measured to determine whether it is

more likely than not the respondent will be tortured if removed to Nigeria are

(1) that the respondent was convicted of drug trafficking; (2) that under

current Nigerian law, which is actively enforced, a person convicted of a drug

offense is subject to imprisonment for a period of 5 years; (3) that

medications are withheld as a means of punishment in Nigerian jails; (4) that

the respondent has asthma and, if imprisoned, has no family to provide such

medication or any other form of sustenance; (5) that the respondent has a

former fiancé who has reason to seek retribution against her; and (6) that rape

and other assaults of female inmates are prevalent in Nigerian jails. The

respondent may satisfy her burden of proof that it is more likely than not she

will be tortured based on the reasonable inferences that can be drawn from

these facts in the record.

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The evidence presented by the respondent is not merely based on her own

fear and speculation, but on solid, uncontradicted evidence of enforcement

efforts against smugglers, who are subjected to horrific prison conditions,

including denial of medication, assault, and rape by prison guards, all

committed by Nigerian Government officials with impunity. The majority’s

rejection of the respondent’s evidence as no more than a “chain of

assumptions,” Matter of M-B-A-, supra, at 479, reveals its imposition of an

improper standard, leading it to erroneously reject evidence that establishes

it is more likely than not the respondent will be tortured if returned to Nigeria.

DISSENTING OPINION: Paul Wickham Schmidt, Board Member , in

which John Guendelsberger, Noel Ann Brennan, Cecelia M. Espenoza

and Juan P. Osuna, Board Members, join

I respectfully dissent.

I. ISSUE

I agree with Board Member Rosenberg’s conclusion that the respondent has

shown that it is more likely than not that she will be imprisoned under Decree

No. 33 upon return to Nigeria. See National Drug Law Enforcement Agency

(Amendment) Decree 1990, Decree No. 33 (Oct. 10, 1990) (“Decree No.

33”). I write separately to address the question the majority avoids: whether

the respondent more likely than not will be tortured while in prison. I find

that she will be tortured.

II. ANALYTICAL FRAMEWORK

A. Torture Defined

Matter of J-E-, 23 I&N Dec. 291 (BIA 2002), describes a five-part test for

determining whether an act of mistreatment rises to the level of “torture”

under 8 C.F.R. § 208.18(a)(1) (2002) and the Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and

opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR

Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force

June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against

Torture” or “Convention”). Those five elements are that the act must:

(1) cause severe physical or mental pain or suffering; (2) be intentionally

inflicted; (3) be inflicted with a proscribed purpose; (4) be inflicted by, at the

instigation of, or with the acquiescence or consent of a public official who has

custody or physical control of the victim; and (5) not arise from lawful

sanctions.

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Applying this definition, we found in Matter of J-E-, supra, that acts such

as indefinite detention, inadequate prison nutrition, sporadic light beatings

with fists and sticks, and other acts fairly characterized as police brutality do

not rise to the level of torture.

On the other hand, we found that deliberate vicious acts such as burning

with cigarettes, choking, hooding, kalot marassa (severe boxing of the ears),

and electric shock may constitute torture. Matter of J-E-, supra, at 302.

Additionally, in Matter of G-A-, 23 I&N Dec. 366 (BIA 2002), we found that

torture includes suspension for long periods of time in confined positions,

sleep deprivation, severe repeated beatings with cables or other instruments

on the back and soles of the feet, beatings about the ears resulting in full or

partial deafness, and punching in the eyes likely to result in full or partial

blindness.

B. Prison Conditions As Torture

In Matter of J-E-, supra, we effectively established a presumption that

mistreatment in prison is not torture under the Convention Against Torture,

but merely “cruel, inhuman or degrading treatment”—reprehensible, worthy

of condemnation, but not a basis for relief.

To rebut this presumption, a respondent who is likely to be imprisoned

upon removal must show that: (1) “torture” exists in the foreign prison

system; and either (2) it is probable that any prisoner detained in the system

will be tortured, or (3) he or she possesses individual characteristics making

it more likely than not he or she will be tortured.

In Matter of J-E-, supra, the respondent showed that torture exists in the

Haitian prison system, but he was unable to satisfy tests (2) or (3). His claim

was therefore unsuccessful.

By contrast, in Matter of G-A-, supra, the respondent proved that torture

exists on a widespread basis in the Iranian prison system. But he also

established that, as a Christian of Armenian descent who spent 25 years in the

United States and was convicted of a drug violation in this country, he had a

combination of individual traits that made it likely that the Iranian

Government would mark him for torture in prison. We therefore granted him

deferral of removal under the Convention Against Torture.

III. ANALYSIS

A. Torture Exists in the Nigerian Prison System

The most recent Department of State country report on Nigeria describes

the abuses that are rampant in the Nigerian prison system. Bureau of

Democracy, Human Rights, and Labor, U.S. Dep’t of State, Nigeria Country

Reports on Human Rights Practices - 2001 (Mar. 2002), available at

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http://www.state.gov/g/drl/rls/hrrpt/2001/af/8397.htm (“Country Reports”).

At least one aspect of that abuse, intentional withholding of needed medical

treatment for improper purposes, which is relevant to this respondent’s

situation, constitutes “torture” under the test set forth in Matter of J-E-,

supra.

The respondent is a chronic asthmatic with no family in Nigeria who could

provide food or proper medical treatment while she is in jail. The Country

Reports state that “[p]rison officials, police, and security forces often denied

inmates food and medical treatment as a form of punishment or to extort

money from them.” Country Reports, supra, at 6 (emphasis added).

That report goes on to state the following:

Harsh conditions and denial of proper medical treatment contributed to the deaths of

numerous prisoners. A reputable human rights organization estimated in 1999 that at least

one inmate died per day in the Kiri Kiri prison in Lagos alone. According to the Prisoners

Rehabilitation and Welfare Action (PRAWA) a nongovernmental organization (NGO), dead

inmates promptly are buried on the prison compounds, usually without notifying their

families. A nationwide estimate of the number of inmates who die daily in the country’s

prisons is difficult to obtain because of poor record keeping by prison officials. PRAWA

and other NGO’s alleged that prison conditions were worse in rural areas than in urban

districts.

Id. (emphasis added).

Clearly, death caused at least in part by intentional withholding of medical

treatment for improper purposes is common in the Nigerian prison system.

The extent of the problem probably is understated because of the difficulty

in obtaining accurate documentation from the Nigerian system.

The Country Reports also establish that, with respect to torture of

prisoners, “[i]n most cases, neither [sic] the state anticrime task forces, the

police, nor the armed forces were held accountable for excessive, deadly use

of force or the death of persons in custody.” Country Reports, supra, at 1

(emphasis added). Thus, there generally is no accountability for acts of

torture committed by Nigerian Government officials.

The Country Reports also establish that Nigeria follows traditional Islamic

law and that discrimination and violence against women is an endemic

problem. Id. at 17, 18. Women often are imprisoned with men. Id. at 7.

The Country Reports also make clear that those without family to support

and feed them while in prison face a particularly high risk of death or

mistreatment. Id. at 6.

The intentional withholding of medical care for the purpose of extortion or

punishment satisfies the five-part definition of torture set forth in Matter of

J-E-, supra. First, intentional denial of medical care is a vicious act intended

to cause extreme physical and mental pain and suffering and, as shown in the

Country Reports, all too often results in death. The mental anguish is

increased by the victims’ knowledge that, upon death, they will be buried in

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unmarked communal graves within the prison compound without notification

to anyone.

Second, mistreatment inflicted for extortion or punishment is obviously

intentional, not accidental, negligent, or merely the natural consequence of

living in a poor country. Third, withholding medical treatment for purposes

of extortion or punishment constitutes an impermissible “proscribed purpose.”

Fourth, this mistreatment is carried out by government prison officials

having both official custody and physical control of the victims. The

Nigerian Government clearly knows of its occurrence, because the public

reports of our own State Department and reputable nongovernmental

organizations (“NGOs”) reflect that such official mistreatment occurs.

Finally, while it is possible that Nigeria’s jailing of foreign-convicted drug

offenders, by itself, is a “lawful sanction” under Matter of J-E-, supra,

intentionally denying such prisoners needed medical treatment for reasons of

extortion and punishment is not a lawful sanction. Indeed, “torture” can never

be a “lawful sanction” under the terms of 8 C.F.R. § 208.18(a)(3).

B. Respondent’s Personal Characteristics Make Torture Likely

The respondent is a woman, suffering from chronic asthma, without family

to support and assist her in Nigeria, returning from the United States with a

drug conviction. Decree No. 33, discussed by the majority, shows, at a

minimum, that the Nigerian Government has a particular interest in those

returning with foreign drug convictions.

The respondent’s combination of personal traits places her in a particularly

high-risk category to suffer torture through the intentional denial of medical

treatment for her chronic asthma by Nigerian prison officials bent upon

improperly punishing or extorting her. Her situation is therefore closer to the

individualized claim of the successful applicant in Matter of G-A- than it is

to the unsuccessful applicant in Matter of J-E- who presented a more

“generic” claim. Consequently, I find that the respondent more likely than not

will be tortured if imprisoned in Nigeria.

IV. CONCLUSION

For the foregoing reasons, I conclude that the respondent more likely than

not will be tortured by intentional, malicious withholding of needed medical

care when imprisoned upon her return to Nigeria. I therefore would grant her

deferral of removal under the Convention Against Torture and would deny the

motion to reconsider. Consequently, I respectfully dissent.

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