United States Court of Appeals For the First Circuit
No. 24-1412 RASHEED AKINSANYA,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Before
Montecalvo, Howard, and Aframe, Circuit Judges.
Benjamin Osorio, with whom Alaina Taylor and Murray Osorio PPLC, were on brief, for petitioner. Liza S. Murcia, Attorney, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony C. Payne, Assistant Director, Office of Immigration Litigation, United States Department of Justice, were on brief, for respondent. SangYeob Kim, with whom Gilles Bissonnette was on brief, for American Civil Liberties Union of New Hampshire, amicus curiae.
January 10, 2025 AFRAME, Circuit Judge. Rasheed Akinsanya is a Nigerian
citizen. He has brought a petition for review challenging the
administrative denial of his application for deferral of removal pursuant
to the regulations implementing the Convention Against Torture ("CAT").
Akinsanya contends that if he were to return to Nigeria, he would be
tortured by a terrorist organization called Boko Haram. The Board of
Immigration Appeals ("BIA") affirmed the conclusions of the Immigration
Judge ("IJ") that Akinsanya could not obtain deferral of removal under
the CAT because he failed to demonstrate that Nigerian officials would
acquiesce to his potential torture. In evaluating Akinsanya's claim,
the BIA did not correctly apply the appropriate legal test for
acquiescence. We therefore grant the petition and remand for further
proceedings.
I.
Before entering the United States, Akinsanya served in the
Special Anti-Robbery Squad ("SARS") of the Nigeria Police Force. In
2013, the Nigerian government investigated Akinsanya's SARS unit for a
host of allegations including corruption, nepotism, abuse of power, and
providing material support to Boko Haram, a terrorist group present in
Nigeria.1 Akinsanya cooperated in the investigation, which culminated
in the arrest of several officers, including a deputy commissioner.
1 The IJ describes Boko Haram as an "insurgent group operating and expanding out of the Northeast region of Nigeria with aspirations to replace Nigeria's secular state structure with an Islamic state." Since 2009, Boko Haram has caused more than forty thousand deaths in Nigeria.
- 2 - Following the investigation, the government reassigned
Akinsanya to a different police unit in the northern region of Nigeria.
This new unit was focused on combatting kidnapping and human trafficking
by Boko Haram. Meanwhile, Akinsanya began receiving anonymous telephone
calls and texts that caused him concern for his safety.
In October 2013, Akinsanya entered the United States on a B-1
visa to attend a police conference. The visa authorized Akinsanya to
remain in the country until April 2014. While in the United States,
Akinsanya learned that one or more people had broken into his house.
They took his laptop, vandalized a file cabinet, removed a confidential
file identifying Boko Haram informants, and left a threatening letter.
Akinsanya also learned that Boko Haram had attacked his new division and
caused the deaths of eight officers, including two who had been
reassigned with him.
After these events, Akinsanya decided to remain in the United
States beyond the expiration of his visa. He testified that he made
this decision because he feared that Boko Haram would murder him if he
returned to Nigeria.
In the ensuing years, Akinsanya discovered that several other
officers involved in the 2013 investigation of his SARS unit had died
under suspicious circumstances or been forced to retire from the police
force. Then, on two occasions in 2021, members of Akinsanya's family
in Nigeria were attacked by individuals looking for Akinsanya.
In early 2021, Akinsanya's ex-wife and daughters were beaten
and subsequently hospitalized. During the attack, the individuals
interrogated the family about Akinsanya's whereabouts. His ex-wife
- 3 - informed the intruders that he was in the United States and that they
had divorced six years earlier. The police investigated the incident.
Akinsanya believes the attackers were associated with Boko Haram.
Later in 2021, Akinsanya's sister, Toyin Olufunke Oladunjoye,
was attacked at home by at least three disguised individuals. During
the attack, the individuals inquired into Akinsanya's whereabouts and
stated that they would kill him if he ever were to return. Before
leaving, the attackers shot Akinsanya's sister. She survived the attack
but was hospitalized for several days during which time the police
interviewed her. She testified that she stopped inquiring about the
investigation after the police demanded payment each time she visited
the station. She believes that the attackers were affiliated with Boko
Haram based on their dialect.
On May 29, 2018, about five years after arriving in the United
States, Akinsanya was convicted of conspiracy to commit wire fraud, under
18 U.S.C. §§ 1343 and 1349, and aggravated identify theft, under 18
U.S.C. § 1028A(a)(1)-(2), in the United States District Court for the
Southern District of Texas. He received an eighty-seven-month prison
sentence.
While Akinsanya was serving his sentence, the government
identified him as a removable noncitizen. In April 2023, after Akinsanya
completed his sentence, the Bureau of Prisons transferred him to the
custody of the Department of Homeland Security ("DHS") for removal
proceedings. DHS charged Akinsanya as removable for remaining in the
United States longer than permitted and for his aggravated felony
conviction.
- 4 - On June 13, 2023, Akinsanya filed an application for asylum,
withholding of removal, and deferral of removal under the CAT. The IJ
held several hearings during which he heard testimony from Akinsanya;
his friend, Taju Okeleye; his sister, Toyin Olufunke Oladunjoye; and his
expert witness, Dr. Godwin Onuoha.
Following the hearings, the IJ issued a written decision.
The IJ found that Akinsanya and his witnesses were credible and that
Akinsanya's expert was qualified. The IJ determined that Akinsanya was
removable from the United States for staying beyond his visa expiration
and because of his aggravated felony conviction. The IJ then concluded
that Akinsanya was statutorily barred from obtaining asylum and
withholding of removal because of his conviction for a particularly
serious crime.
Having rejected Akinsanya's requests for asylum and
withholding of removal, the IJ turned to his request for deferral of
removal under the CAT. The IJ concluded that Akinsanya was ineligible
for deferral of removal because he had failed to establish that he would
be tortured upon returning to Nigeria by or with the acquiescence of a
public official.
The IJ began its CAT analysis with a detailed review of the
relevant testimony and evidence. He acknowledged that Nigeria is subject
to threats from multiple armed groups, including Boko Haram. He also
noted that Nigeria's government is constrained in its ability to protect
its citizens, that the police are under-resourced, and that weak
institutions and corruption have allowed Boko Haram to "gain a foothold
and continue its operations." Regarding Akinsanya directly, the IJ noted
- 5 - the expert's testimony that he "'may be exposed to the possibility of
being killed, if returned to Nigeria' in view of [his] past experiences
and the Nigerian government's overall difficulty reining in Boko Haram."
The IJ nevertheless concluded that Akinsanya was ineligible
for CAT relief because the "evidence . . . d[id] not support a finding
that the Nigerian government or a public official would acquiesce or
turn a blind eye to [his] torture." In support of this conclusion, the
IJ cataloged a series of actions taken by the Nigerian government to
combat Boko Haram: designating Boko Haram a terrorist organization;
criminalizing membership and arresting individuals affiliated with the
group; engaging in counterterrorism efforts and joint military exercises
with other nations; investigating officers in the SARS unit for providing
Boko Haram with material support; and infiltrating Boko Haram, as
demonstrated by the list of confidential informants stolen from
Akinsanya's home. The IJ also noted that the police responded to the
2013 break-in at Akinsanya's home and the 2021 attacks on his ex-wife
and sister.
The IJ acknowledged that "these efforts may not be entirely
effective" and that "the Nigerian government certainly faces an uphill
battle against Boko Haram." The IJ further acknowledged that "torture
may occur at times in Nigeria," and Akinsanya may have difficulty
avoiding harm from Boko Haram. Despite this, the IJ rejected Akinsanya's
claim for CAT protection, concluding that acquiescence cannot be based
on the government's "general ineffectiveness" in "prevent[ing]
widespread violence and crime affecting the population at large."
- 6 - Akinsanya appealed to the BIA only the denial of his
application for deferral of removal under the CAT. The BIA affirmed.
It acknowledged that Nigerian officials may lack the ability to protect
Akinsanya but endorsed the IJ's view that an acquiescence finding cannot
rest on that basis. The BIA determined that, despite the possibility
for violence, Akinsanya's claim failed because Nigerian authorities were
taking some preventative measures to combat Boko Haram and the potential
ineffectiveness of those measures was not a sufficient ground to
establish government acquiescence.
Akinsanya petitioned this Court for review of the BIA's
ruling.
II.
When considering petitions for review of BIA rulings, we
generally focus on the BIA's final decision. Loja-Tene v. Barr, 975
F.3d 58, 60 (1st Cir. 2020). To the extent "the BIA has adopted and
affirmed the IJ's ruling, but has included discussion of some of the
IJ's bases for decision, we review both the IJ's and BIA's opinions."
Bonnet v. Garland, 20 F.4th 80, 84 (1st Cir. 2021) (quoting Chanthou Hem
v. Mukasey, 514 F.3d 67, 69 (1st Cir. 2008)). When discussing the BIA
and IJ as a unit, we refer to them together as "the agency." Khalil v.
Garland, 97 F.4th 54, 61 (1st Cir. 2024). We review factual findings
under the substantial-evidence standard to determine whether "the record
compels a conclusion contrary to the one reached by the agency."
DeCarvalho v. Garland, 18 F.4th 66, 74 (1st Cir. 2021). We review legal
conclusions de novo. Murillo Morocho v. Garland, 80 F.4th 61, 65 (1st
Cir. 2023).
- 7 - III.
Akinsanya's primary claim, and our basis for resolving this
petition, is that the BIA did not adequately analyze whether the Nigerian
authorities would likely acquiesce in Akinsanya's torture. We begin our
discussion by describing the requirements for obtaining deferral of
removal under the CAT regulations with a particular focus on the standard
for proving government acquiescence.
To prove eligibility for deferral of removal under the CAT,
a petitioner must establish "that it is more likely than not that he
will be tortured if returned to his home country." Bonnet, 20 F.4th at
84 (quoting Mazariegos v. Lynch, 790 F.3d 280, 287 (1st Cir. 2015)); 8
C.F.R. § 208.16(c)(2) (2022). "[T]orture is defined as 'any act by which
severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person . . . by, or at the instigation of, or with the
consent or acquiescence of, a public official acting in an official
capacity or other person acting in an official capacity.'" Bazile v.
Garland, 76 F.4th 5, 14 (1st Cir. 2023) (second alteration in original)
(quoting 8 C.F.R. § 1208.18(a)(1) (2022)).
This Court has articulated a "two-part, successive inquiry"
to determine whether a public official acquiesced to torture inflicted
by a private actor. H.H. v. Garland, 52 F.4th 8, 19 (1st Cir. 2022);
see also Murillo Morocho, 80 F.4th at 67; Khalil, 97 F.4th at 67; Morgan
v. Garland, 120 F.4th 913, 930 (1st Cir. 2024). "[A]n applicant . . .
must first demonstrate the likelihood of a foreign government's awareness
of torture, and then show a likely breach of the government's duty to
intervene to prevent the torture." H.H., 52 F.4th at 19-20. In
- 8 - discussing the duty to intervene prong, this Court has articulated
several considerations that bear on the pending petition:
• Applying the duty to intervene requires the agency to identify
the nature of the legal duty that the government owes under the
circumstances and then consider whether the steps (if any) taken
by government officials satisfy that duty. See Murillo Morocho,
80 F.4th at 68; Khalil, 97 F.4th at 68-69.
• This Court has "express[ed] skepticism that any record evidence
of efforts taken by the foreign government to prevent torture
. . . will necessarily be sufficient to preclude the agency from
finding that a breach of the duty to intervene is likely to
occur." H.H., 52 F.4th at 21.
• The duty to intervene inquiry is especially important where the
record "suggest[s] that the government's steps have been
inadequate and ineffectual." Murillo Morocho, 80 F.4th at 68.
The agency must explain why the government's steps, though
inadequate or ineffectual, nevertheless satisfy its duty to
intervene. Id.
• The agency may only determine whether an applicant has
established a breach of the duty to intervene "after carefully
weighing all facts in the record." H.H., 52 F.4th at 21.
Guided by these considerations, we conclude that the agency
incorrectly analyzed whether Akinsanya proved government acquiescence in
his torture. We therefore remand. See Khalil, 97 F.4th at 70 (remanding
- 9 - where the BIA's acquiescence analysis "[did] not indicate it applied the
correct legal test"); Murillo Morocho, 80 F.4th at 68 (same).
A.
The BIA's legal analysis of Akinsanya's CAT claim began with
a general statement that Akinsanya was required to show, first, that it
is "more likely than not that [he] will be tortured upon return to [his]
homeland; and second, [that there is] sufficient state action involved
in that torture," which includes acquiescence by a public official. The
BIA then asserted that a government's inability to protect its citizens
does not amount to acquiescence. Relying on that proposition, the BIA
affirmed the IJ's no-acquiescence finding, writing that "[p]otential
instances of violence committed by non-governmental actors against
citizens, together with speculation that the police or government might
not prevent that violence, are generally insufficient to prove government
acquiescence."
On its face, the BIA's ruling does not appear to apply the
correct legal standard for acquiescence. The BIA did not state the
two-step acquiescence inquiry; nor did it cite any of this Court's
relevant cases.2 The decision also failed to discuss both prongs of the
2 The BIA cited two First Circuit cases. It first cited H.H., 52 F.4th 8, which, as we note above, does set out the correct legal standard. But the BIA cited H.H. only for the different proposition that an IJ is not required to "accept all the testimony and opinions provided as facts." The BIA also cited Morales-Morales v. Sessions, 857 F.3d 130 (1st Cir. 2017). That case was decided before H.H. articulated the two-step acquiescence inquiry and rejected the CAT claim summarily. See 857 F.3d at 136 (concluding that "[petitioner's] application for protection under the CAT . . . fails for substantially the same reason as do his challenges to the denials of his request for asylum and withholding of removal").
- 10 - inquiry. Specifically, the BIA did not identify the legal duty that the
Nigerian government owed to Akinsanya. See Murillo Morocho, 80 F.4th
at 68 (remanding in part due to the agency's failure to address the
government's legal duty); Khalil, 97 F.4th at 70 (same).
The government acknowledges these omissions but contends
that, "although [the BIA did] not parse the two-prong acquiescence
inquiry, [its] path may reasonably be discerned." We disagree.
The BIA based its no-acquiescence finding principally on the
proposition that a government's inability to protect its citizens does
not amount to acquiescence and that the Nigerian authorities have been
taking some steps to combat Boko Haram. But this approach, seemingly
derived from Fifth Circuit authorities, is inconsistent with this Court's
treatment of public-official acquiescence.3 A no-acquiescence finding
cannot rest solely on the fact that the government has taken some
responsive action to combat private violence.
For starters, such reasoning is hard to reconcile with our
previously "express[ed] skepticism that any record evidence of efforts
taken by the foreign government to prevent torture . . . will necessarily
be sufficient to preclude the agency from finding that a breach of the
duty to intervene is likely to occur." H.H., 52 F.4th at 21.
3 Akinsanya, supported by the American Civil Liberties Union of New Hampshire as amicus curiae, argues that the BIA erred by citing Fifth Circuit authorities because this case was governed by First Circuit law. The government contends that the BIA applied First Circuit law, while also relying "on persuasive case law from the Fifth Circuit" to support its analysis. Of course, the BIA may rely on persuasive authority from other courts so long as the authority cited aligns with the governing law. The problem here is that the BIA's understanding of Fifth Circuit caselaw led it afield from the acquiescence inquiry required by this Court in H.H., Murillo Morocho, and Khalil.
- 11 - More to the point, looking only to whether a government takes
some responsive action to prevent private violence fails to account for
instances where a foreign government takes some measures but still does
not satisfy its legal duty to intervene. Sometimes, despite having taken
some action, a government may still have "a legal responsibility to do
more." H.H., 52 F.4th at 20 (quoting Scarlett v. Barr, 957 F.3d 316,
335 (2d Cir. 2020)). That is why we require the agency to address
whether the government's actions demonstrate that it will adequately
meet its legal responsibility to intervene. See id. at 20-21.
Addressing this part of the inquiry is especially important where a
government's preventative actions have been ineffective. As we have
explained, although "'concerns about . . . the overall effectiveness of
[] law enforcement efforts do not compel the conclusion' of
[public-official] acquiescence," Morgan, 120 F.4th at 931 (quoting
DeCarvalho, 18 F.4th at 75); see also Urias-Orellana v. Garland, 121
F.4th 327, 338-39 (1st Cir. 2024) (same), such concerns remain pertinent
to whether a government is likely to meet its legal duty to intervene,
see Murillo Morocho, 80 F.4th at 68 (explaining that an evaluation of a
government's efforts in light of the government's legal duty is
particularly important where "the record suggest[s] that the
government's steps have been inadequate and ineffectual").
Here, the BIA acknowledged evidence that "the Nigerian
government is actively combating numerous terrorist groups and rebels
throughout the country, including Boko Haram," and the possibility that
such efforts may be ineffective. The BIA did not, however, articulate
the Nigerian government's duty to protect Akinsanya, one of its law
- 12 - enforcement officers, from Boko Haram's violent retaliation. Nor did
the BIA explain whether, in this situation, the fact that the "Nigerian
government is actively combating numerous terrorist groups and rebels"
was sufficient to establish a likelihood that Nigerian officials would
satisfy their legal duty to intervene.
By resting its decision solely on the fact that the Nigerian
government has taken some responsive actions to combat Boko Haram but
neglecting to analyze whether those actions satisfy the duty to
intervene, the BIA failed to correctly perform the acquiescence inquiry.4
Accordingly, we remand for the BIA to address "what 'legal duty'
[governmental] authorities [owe] in this situation and whether the
4 Akinsanya separately contends that, in crediting the Nigerian government's country-wide efforts to combat Boko Haram when evaluating acquiescence, the agency imposed on Akinsanya an "improperly high burden" to establish acquiescence. The agency, he argues, effectively required him to prove that "the entire Nigerian government," and not just "'a' public official," would acquiesce in his torture. As we are remanding in any event, we do not reach this argument. But we offer two observations. First, the agency did not consider only country-wide efforts to combat Boko Haram; the IJ described efforts by the police that were specific to Akinsanya and his family. Second, general governmental efforts to address violence are relevant, but not necessarily dispositive, considerations when evaluating government acquiescence. See, e.g., Ruiz-Guerrero v. Whitaker, 910 F.3d 572, 575 (1st Cir. 2018)(crediting a country report detailing several government agencies and policies designed to combat violence against women); Perez-Trujillo v. Garland, 3 F.4th 10, 21 (1st Cir. 2021)(crediting general governmental efforts to address gang violence); Khalil, 97 F.4th at 69 (stating that "'the fact that some officials take action to prevent the torture' is 'neither inconsistent with a finding of government acquiescence nor necessarily responsive to the question of whether torture would be "inflicted . . . with the consent or acquiescence of a public official"'" (alteration in original) (quoting De La Rosa v. Holder, 598 F.3d 103, 110 (2d Cir. 2010))).
- 13 - government's efforts satisf[y]" that duty.5 Murillo Morocho, 80 F.4th
at 68.
B.
The government alternatively argues that, even if the BIA
committed legal error when considering acquiescence, we may still affirm
because BIA and IJ decisions are sometimes read as a unit, and here, the
IJ correctly applied the acquiescence inquiry. We disagree for three
reasons.
First, the IJ's role is to perform only an initial assessment
of the petitioner's claim. See 8 U.S.C. § 1229a(a)(1); 8 C.F.R.
§ 1003.10(b) (2024); DeCarvalho, 18 F.4th at 73. The BIA then reviews
findings of fact for clear error and legal conclusions and questions of
discretion and judgment de novo. 8 C.F.R. § 1003.1(d)(3)(i)-(ii) (2024);
DeCarvalho, 18 F.4th at 73. Specifically, the BIA reviews de novo the
IJ's application of facts to determine whether a public official's
response to potential torture establishes that the official "breach[ed]
his or her 'legal responsibility to intervene to prevent such'" torture.
5 Akinsanya also asks this Court to further define what constitutes a public official's legal duty to intervene. Specifically, he requests that this Court direct the BIA to apply a "due diligence" standard borrowed from the United Nations Committee Against Torture's General Comment No. 2. See U.N. Comm. Against Torture, Gen. Comment No. 2, Implementation of Article 2 by States Parties, U.N. Doc. CAT/C/GC/2, at ¶ 18 (Jan. 24, 2008). We decline that request. "Our task is to review the agency's legal interpretation, not perform it in the first instance." Tillery v. Lynch, 821 F.3d 182, 186 (1st Cir. 2016); see also Negusie v. Holder, 555 U.S. 511, 517 (2009); Guta-Tolossa v. Holder, 674 F.3d 57, 61 (1st Cir. 2012). We leave it to the BIA, in the first instance, to define the legal duty to intervene.
- 14 - Khalil, 97 F.4th at 67 (alteration in original) (quoting Myrie v. Att'y
Gen., 855 F.3d 509, 517 (3d Cir. 2017)).
Retreating to the IJ's no-acquiescence conclusion where the
BIA introduces legal error by not properly applying a legal standard
deprives a petitioner of meaningful de novo review by the BIA. That is
no small thing. The BIA's de novo review of an IJ's no-acquiescence
determination presents a substantial opportunity for the petitioner to
reverse that determination. See 8 C.F.R. § 1003.1(d)(1) (2024); see
also Tillery, 821 F.3d at 185 (noting the BIA has "broad authority to
exercise independent judgment and to rest on an alternative basis [to
the IJ] when denying a petition"). But the BIA's de novo review is
meaningless if it incorrectly applies the legal standard. When that
occurs, we must remand so that the petitioner may obtain meaningful BIA
review. See, e.g., Khalil, 97 F.4th at 70 (remanding where the BIA's
acquiescence analysis "[did] not indicate it applied the correct legal
test").
Second, even were we to consider the IJ's no-acquiescence
conclusion directly, we still would deem it inadequate. Unlike the BIA,
the IJ correctly stated the two-pronged acquiescence standard. The IJ
then reviewed the relevant testimony and evidence. It described the
steps being taken by the Nigerian government to combat Boko Haram,
including efforts specific to Akinsanya. The IJ acknowledged that such
efforts "may not be entirely effective" but nonetheless rejected
Akinsanya's acquiescence claim on the ground that "[a] general
ineffectiveness on the government's part to prevent widespread violence
- 15 - and crime affecting the population at large does not suffice to show
acquiescence such that protection under the CAT is warranted."
The IJ's acquiescence analysis is insufficient. Merely
stating the proper standard does not discharge the obligation to
correctly apply the standard. See Khalil, 97 F.4th at 68-69, 70
(remanding for the BIA to evaluate acquiescence de novo despite both the
BIA and IJ having cited the correct legal standard). Here, the IJ
acknowledged expert testimony that Akinsanya may face violence from Boko
Haram and listed potentially ineffective efforts by the Nigerian
government to protect him. However, as we have already explained, to
base a no-acquiescence finding on these ineffective efforts, the IJ also
had to define the government's legal duty to intervene and explain why
the government's actions establish a likelihood that it would discharge
its duty. See Murillo Morocho, 80 F.4th at 68. That critical aspect
of the inquiry is missing. See Khalil, 97 F.4th at 69 (remanding where
the BIA and the IJ failed to "evaluate[] the effectiveness of those steps
and whether they met the government's duty to intervene" (quoting Murillo
Morocho, 80 F.4th at 68)).
Finally, the IJ appears to have made its no-acquiescence
determination without "carefully weighing all facts in the record."
H.H., 52 F.4th at 21. Akinsanya's expert testified that Boko Haram had
infiltrated various levels of the Nigerian government, citing ties
between the terror organization and a Nigerian vice president, a
government minister, and a senator. The record also indicates that
members of Akinsanya's initial police division, the SARS unit, were
investigated in part for providing material support to Boko Haram.
- 16 - Evidence of such infiltration could be pertinent to the acquiescence
inquiry, but none of this evidence was discussed by the IJ in its findings
of fact or legal analysis. By not addressing even the possibility that
Boko Haram had infiltrated the Nigerian government, the agency failed
to satisfy its obligation to weigh all the facts.6 See id.
For the reasons discussed, we cannot conclude that the agency
correctly applied the legal test for acquiescence. We therefore must
remand so that the agency can give Akinsanya's CAT claim "reasoned
consideration."7 H.H., 52 F.4th at 23 (quoting Wang v. BIA, 437 F.3d
270, 275 (2d Cir. 2006)); Murillo Morocho, 80 F.4th at 68.
6 The government contends that some of the infiltration evidence presented by Akinsanya's expert was undermined on cross-examination. Because there is no mention of this evidence in the IJ's decision, we cannot determine whether the IJ concluded that there was no infiltration as a matter of fact, whether it simply overlooked the infiltration evidence presented, or whether it deemed the evidence irrelevant to the inquiry. 7 Akinsanya makes two alternative arguments. First, he contends that the agency, in denying his claim, erred by considering only whether the Nigerian government would acquiesce in his torture and not the necessary antecedent -- whether Akinsanya would in fact be tortured. But a petitioner's inability to satisfy any prong of the legal test for CAT protection is dispositive. See Murillo Morocho, 80 F.4th at 66. The agency need not reach a second prong where the first will suffice. Id. If the agency decides on remand to grant relief, it will have to determine that Akinsanya has satisfied all aspects of the torture inquiry. Akinsanya relatedly argues that this Court must remand as the "uncontroverted record evidence compels a finding that [he] would suffer death if returned to Nigeria," and "the IJ and the BIA failed to explain why they did not find in accordance with the expert’s testimony." As we are remanding for reconsideration of the acquiescence question, we leave it for the agency to decide, in the first instance, whether Akinsanya proved he would experience torture if he were to return to Nigeria.
- 17 - IV.
We grant Akinsanya's petition for review, vacate the agency's
decision, and remand to the BIA for further proceedings consistent with
this opinion.
- 18 -