Abiodun Idris v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: April 28, 2020
• Docket: 19-1402
• Status: Unpublished

Opinion

ALD-133 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-1402 ___________

ABIODUN IDRIS, AKA Micheal Ojogiwa, AKA Oluwahola Ademole, AKA Abiodun Ioris, AKA Oluwashhola Ademola, Petitioner v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A216 288 842) Immigration Judge: John P. Ellington ____________________________________

Submitted on a Motion for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 March 5, 2020 Before: MCKEE, SHWARTZ and PHIPPS, Circuit Judges

(Opinion filed: April 28, 2020) _________

OPINION * _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Abiodun Idris petitions for review of an order of the Board of Immigration

Appeals (“BIA”), which affirmed the Immigration Judge’s (“IJ”) removal order. Because

the petition presents no substantial question for review, we will grant the Government’s

motion for summary action.

Idris grew up in Lagos, Nigeria. After traveling in Africa for two years, he entered the

United Kingdom in 1985 and remained there for seven years. He claimed that he entered

the United States in 1993 on the Visa Waiver Program, using a British passport. Idris

was convicted on forgery charges in 1995 and 1997, and fraud in 2017, which involved

the attempted use of a fake Nigerian passport at a bank on the University of Pennsylvania

campus.

The Department of Homeland Security issued a Notice to Appear, alleging that Idris was

present in the U.S. without being admitted or paroled in violation of 8 U.S.C.

§ 1182(a)(6)(A)(i). The IJ sustained the charge, but Idris applied for asylum, withholding

of removal, and protection under the Convention Against Torture (“CAT”). In his I-589

Application for Asylum and Withholding of Removal filed in April 2018, he alleged past

persecution and fear of future persecution based on his mother’s conversion to

Christianity and his ethnicity as a Yoruba. A.R. 352-62. He did not mention sexual

orientation in the asylum application. After later conferring with counsel, he submitted a

personal declaration to support his application in late July 2018, detailing alleged past

incidents of persecution based on his sexual orientation. A.R. 284-87.

Idris appeared pro se at a merits hearing before an IJ in August 2018. He testified about

two attacks by gangs in Nigeria, the treatment by his parents, and his alleged injuries. He

2 also maintained that, although he used a U.K. passport to enter the U.S., it was false, and

he had no legal status in the U.K. Under questioning by the IJ, however, Idris admitted

that he had applied for the British passport and that the government had issued it to him.

After the hearing, the IJ made a negative credibility finding based on Idris’ testimony,

submitted documents, and past fraudulent actions and crimes concerning his own

identity. A.R. 67. The IJ denied Idris’ asylum application as untimely, and all other

applications for relief based on the adverse credibility determination, and ordered him

removed to the U.K., and, in the alternative, Nigeria. A.R. 71.

In his counseled appeal to the BIA, Idris abandoned his asylum and CAT claims and

focused on the withholding of removal claim, arguing that the IJ did not make a sufficient

finding on whether Idris had a clear probability of future persecution in Nigeria. He also

argued that the IJ’s designation of the U.K. as the primary country of removal constituted

clear error. The BIA dismissed the appeal, and Idris filed a pro se petition for review.

After he filed his opening brief, the Government filed a motion for summary action and

the briefing schedule was stayed.

We have jurisdiction under 8 U.S.C. § 1252. We review the BIA’s decision and consider

the IJ’s decision to the extent that the BIA deferred to it. See Roye v. Att’y Gen., 693

F.3d 333, 339 (3d Cir. 2012). We agree with the Government that this petition presents

no substantial question for review.

We lack jurisdiction to consider the agency’s denial of asylum and protection under the

CAT, as Idris failed to exhaust administrative remedies for those claims. See 8 U.S.C. §

3 1252(d)(1); Xie v. Ashcroft, 359 F.3d 239, 245 n.8 (3d Cir. 2004). 1 Although Idris did

not challenge the adverse credibility determination in his BIA appeal, we could review

that issue, as the BIA considered it. See Lin v. Att’y Gen., 543 F.3d 114, 126 (3d Cir.

2008).

Idris did not expressly challenge the adverse credibility finding in his brief here, either,

and the Government urges us to find that consideration of the issue is waived. See Voci

v. Gonzales, 409 F.3d 607, 609 n.1 (3d Cir. 2005). While the Government’s point is well

taken, even if we review the issue we cannot find a compelling basis for disagreeing with

the credibility analysis offered by the agency. See 8 U.S.C. § 1252(b)(4)(B). The BIA

homed in on the IJ’s finding that Idris failed to include sexual orientation as a ground of

persecution in his asylum application. The BIA characterized this as a “critical

omission,” A.R. 4, and we agree. Idris’ sexual orientation, and the attacks and injuries

sustained from it, formed the centerpiece of his persecution claims (in fact, he ultimately

abandoned the religious and ethnic grounds on appeal to the BIA). Coupled with the

material inconsistencies and omissions highlighted in the IJ’s decision, and Idris’

criminal convictions for forgery and fraud and his many aliases, the adverse credibility

finding is supported by substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also

Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc) (noting that contradictory

evidence, inconsistent statements, and inherently implausible testimony may support an

adverse determination); Mocevic v. Mukasey, 529 F.3d 814, 817 (8th Cir. 2008)

1 We similarly lack jurisdiction to review Idris’ claims that he has mental health issues, as he did not raise that claim before the agency. 4 (affirming adverse credibility finding in which criminal conviction, involving “stealing

and not being truthful,” undermined credibility).

Finally, we agree with the Government that Idris’ argument that the IJ erred in finding

that he is a national of the United Kingdom is moot, given Idris’ removal to Nigeria in

December last year.

For all these reasons, we grant the Government’s motion for summary action and will

deny the petition for review. To the extent that Idris seeks release from confinement or a

stay of removal, those requests are denied as moot.