Nwankwo v. Garland

Opinion

19-2772 Nwankwo v. Garland BIA

Connelly, IJ

A070 034 114

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 27th day of June, two thousand twenty-two. 5 6 PRESENT: 7 GERARD E. LYNCH, 8 MICHAEL H. PARK, 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 PATRICK M. NWANKWO, AKA PATRICK 14 MADUUBUCHI NWANKU, 15 Petitioner, 16 17 v. 19-2772 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Rohmah A. Javed, Joseph Moravec, 25 Prisoners’ Legal Services of New 26 York, Albany, NY.

1 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 2 Assistant Attorney General; John 3 S. Hogan, Assistant Director; 4 Matthew A. Spurlock, Trial 5 Attorney, Office of Immigration 6 Litigation, United States 7 Department of Justice, Washington, 8 DC.

9 UPON DUE CONSIDERATION of this petition for review of a 10 Board of Immigration Appeals (“BIA”) decision, it is hereby 11 ORDERED, ADJUDGED, AND DECREED that the petition for review 12 is DENIED. 13 Petitioner Patrick M. Nwankwo, a native and citizen of 14 Nigeria, seeks review of an August 16, 2019 decision of the 15 BIA affirming a March 13, 2019 decision of an Immigration 16 Judge (“IJ”) denying Nwankwo’s application for asylum, 17 withholding of removal, and relief under the Convention 18 Against Torture (“CAT”). In re Patrick M. Nwankwo, No. A 070 19 034 114 (B.I.A. Aug. 16, 2019), aff’g No. A 070 034 114 20 (Immig. Ct. Batavia Mar. 13, 2019). We assume the parties’ 21 familiarity with the underlying facts and procedural history. 22 We have reviewed the IJ’s decision as supplemented by 23 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d 24 Cir. 2005). The applicable standards of review are well 25 established. See 8 U.S.C. § 1252(b)(4)(B) (“the

3

1 administrative findings of fact are conclusive unless any 2 reasonable adjudicator would be compelled to conclude to the 3 contrary”); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 4 2009) (reviewing factual findings for substantial evidence 5 and questions of law and application of law to fact de novo). 6 The agency concluded that Nwankwo was ineligible for 7 asylum and withholding of removal because his conviction for 8 use of a communication facility in committing a drug offense, 9 in violation of 21 U.S.C. § 843(b), was a particularly serious 10 crime. Nwankwo does not challenge the agency’s conclusion 11 that the offense is an aggravated felony that bars asylum. 12 See 8 U.S.C. § 1158(b)(2)(A)(ii), (B)(i). As discussed 13 below, Nwankwo did not rebut the presumption that his 14 conviction barred withholding of removal. 15 Nwankwo was sentenced to 15 months’ imprisonment for his 16 offense, so it is not per se a particularly serious crime 17 that bars withholding of removal. See 8 U.S.C. 18 § 1231(b)(3)(B)(ii), (iv). However, the agency may find that 19 any crime is particularly serious based on the circumstances 20 of the offense. Nethagani v. Mukasey, 532 F.3d 150, 156-57 21 (2d Cir. 2008). Because Nwankwo’s conviction involved drug

4

1 trafficking, it is presumptively particularly serious. In 2 re Y-L-, 23 I. & N. Dec. 270, 274 (B.I.A. 2002) (“aggravated 3 felonies involving unlawful trafficking in controlled 4 substances presumptively constitute ‘particularly serious 5 crimes’”), overruled on other grounds by Khouzam v. Ashcroft, 6 361 F.3d 161, 171 (2d Cir. 2004); see also Fenelon v. Lynch, 7 675 F. App’x 49, 51–52 (2d Cir. 2017) (summary order) 8 (granting Chevron deference to In re Y-L-). To overcome the 9 presumption, Nwankwo had to demonstrate that his conviction 10 involved:

11 at a minimum: (1) a very small quantity of controlled 12 substance; (2) a very modest amount of money paid 13 for the drugs in the offending transaction; 14 (3) merely peripheral involvement by the alien in 15 the criminal activity, transaction, or conspiracy; 16 (4) the absence of any violence or threat of 17 violence, implicit or otherwise, associated with the 18 offense; (5) the absence of any organized crime or 19 terrorist organization involvement, direct or 20 indirect, in relation to the offending activity; and 21 (6) the absence of any adverse or harmful effect of 22 the activity or transaction on juveniles. 23 24 In re Y-L-, 23 I. & N. Dec. at 276–77 (emphasis in original).

25 “Only if all of these criteria were demonstrated by an alien 26 would it be appropriate to consider whether other, more 27 unusual circumstances (e.g., the prospective distribution was 28 solely for social purposes, rather than for profit) might

5

1 justify departure from the default interpretation that drug 2 trafficking felonies are ‘particularly serious 3 crimes.’” Id. at 277 (emphasis in original). Nwankwo does 4 not challenge the agency’s conclusion that his conviction, 5 which involved almost 200 grams of heroin, involved more than 6 a small quantity of a controlled substance. Contrary to his 7 position here, the agency was not required to consider the 8 other factors because In re Y-L- requires that the applicant 9 establish “all of these criteria” to rebut the presumption 10 that a conviction is particularly serious. Id. at 276–77. 11 Nwankwo remains eligible for deferral of removal under 12 the CAT despite his conviction. See 8 C.F.R. § 1208.17(a) 13 (alien who is subject to “mandatory denial of withholding of 14 removal” may be granted deferral of removal under the CAT). A 15 CAT applicant has the burden to establish that he would “more 16 likely than not” be tortured “by, or at the instigation of, 17 or with the consent or acquiescence of, a public official 18 acting in an official capacity or other person acting in an 19 official capacity.” Id. §§ 1208.16(c), 1208.18(a)(1). The 20 agency must consider “all evidence relevant to the 21 possibility of future torture,” including past torture, the

6

1 possibility of internal relocation, “[e]vidence of gross, 2 flagrant or mass violations of human rights,” and “[o]ther 3 relevant information regarding conditions in the country of 4 removal.” Id. § 1208.16(c)(3)(i)-(iv). 5 Nwankwo alleged a fear of torture at the hands of his 6 brother, the Ogboni cult, and the Nigerian government on 7 account of his refusal to join the cult and his support for 8 the Biafran independence movement. He raises one challenge 9 to the denial of his CAT claim, arguing that the agency erred 10 by refusing to credit his witness, Dr. Ifem Orji, as an expert 11 on the Ogboni cult. This challenge fails. First, the agency 12 did not err in declining to recognize Dr. Orji as an expert. 13 An expert witness “is broadly defined as someone who is 14 qualified as an expert by knowledge, skill, experience, 15 training, or education.” Matter of D-R-, 25 I. & N. Dec. 16 445, 459 (B.I.A. 2011) (internal quotation marks omitted). 17 The record reflects that Dr. Orji is a native Nigerian with 18 a U.S. law degree who taught at City University of New York. 19 Dr. Orji conceded that he had never published on the subject 20 of cults or the Ogboni, but knew of them because of their 21 presence in Nigerian society. After hearing this testimony,

7

1 the IJ reasonably attributed little weight to Dr. Orji’s 2 conclusions given the lack of relevant publications, the fact 3 that Dr. Orji had not visited Nigeria in five years, and 4 because he spoke to Nwankwo for only one hour. See Xiao Ji 5 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 6 2006) (holding that the weight afforded to evidence in 7 immigration proceedings “lies largely within the discretion 8 of the IJ” (internal quotation marks and brackets omitted)). 9 Second, even crediting Dr. Orji’s testimony, Nwankwo still 10 had the burden to show a link between his brother, the Ogboni 11 cult, and the Nigerian government, and that he was involved 12 in, and targeted for his involvement in, the Biafran 13 independence movement. He has not challenged the agency’s 14 conclusion that he did not meet his burden on these points. 15 For the foregoing reasons, the petition for review is 16 DENIED. All pending motions and applications are DENIED and 17 stays VACATED.

18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, 20 Clerk of Court