Adeniyi v. Bureau of Immigration & Customs Enforcement

157 F. App'x 461
CourtCourt of Appeals for the Second Circuit
DecidedDecember 9, 2005
DocketNSo. 04-0823-AG(L), 04-5192-AG(CON) NAC
StatusPublished

This text of 157 F. App'x 461 (Adeniyi v. Bureau of Immigration & Customs Enforcement) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Adeniyi v. Bureau of Immigration & Customs Enforcement, 157 F. App'x 461 (2d Cir. 2005).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is hereby DENIED, the BIA’s orders are AFFIRMED, and the motion for a stay of removal is DENIED as moot.

Adeniyi Famola, pro se, petitions for review of the BIA decision denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), and of the BIA’s denial of his motion to reopen. We assume the parties’ familiarity with the underlying facts and procedural history.

A. The Petition for Review

Where, as here, the BIA summarily affirmed the IJ, this Court reviews the decision of the IJ directly. Twum v. INS, 411 F.3d 54, 58 (2d. Cir.2005).

1. The Merits of Famola’s Asylum Claim

a. Nexus to a Protected Ground

This Court reviews factual questions, including whether Famola’s fear of persecution is on account of a protected ground, under the substantial evidence standard. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). Accordingly, the IJ’s finding that Famola feared personal retaliation rather than religious persecution will be upheld if supported by “‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Secaida-Rosales, 331 F.3d at 307 (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). The adverse credibility finding will be reviewed under the same standard. See id. at 307.

Evaluating all the evidence, the IJ found that Famola’s uncle was more likely threatening him because of the land dispute, not because of his religious conversion. In making this finding, the IJ properly emphasized the inconsistency between his testimony and his airport interview. At the airport, Famola made no mention of religion, but talked at length about how his uncle had demanded the property his father left him; when asked why he left Nigeria, he answered, “My uncle wants to kill me because of the land” (emphasis added). These statements were an appropriate factor for the IJ to consider in evaluating Famola’s credibility, as the rec[463]*463ord of the interview indicate that it accurately represents Famola’s statements and was not conducted under coercive circumstances. Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.2004). Moreover, Famola did not deny the existence of the land dispute in his 1-589 or his testimony; to the contrary, he testified about it at length, and stated that at one point, his uncle also wanted to kill his father on account of the land. Famola provided ample evidence to support the IJ’s finding that his uncle’s wrath was inspired by the land dispute.

On the other hand, Famola provided no evidence, other than his own testimony, to support his assertion that his uncle wanted to punish him for his religious conversion. He provided documents that prove, at most, the mere existence of the religious group and the fact of Famola’s later conversion. Famola presented no evidence to substantiate his claim that those who leave the faith are punished, and never alleged that the man whose sacrifice he witnessed was a defector. Moreover, the IJ properly found the documents that Famola submitted, particularly those from the church, to be of questionable validity because they partially contradicted his testimony. The record as a whole simply does not compel a finding that Famola’s uncle would persecute him because of religion, rather than the land dispute. Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. 812. Even under a “mixed motives” analysis, the element of religion in Famola’s story is insufficient to establish that his uncle was motivated in significant part by that factor. See id. at 482, 112 S.Ct. 812; Matter of S-P-, 21 L & N. Dec. 486, 1996 WL 422990 (BIA 1996).

b. State Action

Regardless of the uncle’s exact motivation, the IJ also noted that there was no evidence of any government involvement in his dispute with Famola. The IJ found that Famola could not reasonably claim that the government failed to protect him when he never reported his problems or sought any assistance from the police. The IJ also noted that the evidence on record that Nigeria had outlawed human sacrifice, and therefore found that Famola’s claim that the government would not have been willing or able to help him was unreasonable. On the other hand, Famola’s claim that Nigerian government officials are themselves secret idol worshipers, who would therefore take the uncle’s side over his, was mostly speculative, supported only by several Internet articles, most of them anonymous. However, some of the articles confirmed that the Nigerian police at least investigate cults accused of inhumane practices. In light of the questionable reliability of these sources, the lack of confirmation of any of the allegations in the articles, and the fact that some of the claims in the articles actually support the IJ’s findings, a reasonable fact-finder would not be compelled to credit Famola’s assertions about the Nigerian government.

c. Past Persecution

[3] Even if Famola had established a nexus to a protected ground, the IJ concluded that the harm he experienced did not amount to persecution. This Court reviews an IJ’s application of legal principles to the particular facts of a case, including what degree of harm amounts to past persecution, de novo. Secaida-Rosales, 331 F.3d at 307. This Court recognizes that “various types of conduct constitute persecution,” Guan Shan Liao v. United States Dep’t of Justice, 293 F.3d 61, 67 (2d Cir.2002), but has generally required that the conduct be severe, rising above mere harassment. Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d Cir.2004). Threats and destruction of property can be evidence of persecution, if credible and [464]*464described in sufficient detail to indicate the persecutor’s motivation and intent. See Guan, Shan Liao, 293 F.3d at 70. However, the IJ found Famola’s testimony relating to the threat he received somewhat unreliable, and there was insufficient evidence to indicate that the uncle would carry out any such threat. Therefore, this evidence was insufficient to establish past persecution. See id. Moreover, none of the uncle’s actions would be considered past persecution if the uncle committed them for reasons related to the land dispute, rather than to Famola’s religious conversion.

d. Well-Founded Fear of Future Persecution

Because Famola did not establish past persecution, he was not entitled to the presumption that he had a well-founded fear of future persecution. 8 C.F.R.

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