Eneh v. Holder

• Decision Date: 15 April 2010
• Docket Number: No. 05-75264.,05-75264.
• Citation: 601 F.3d 943
• Parties: Lawrence Amaechi ENEH, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

601 F.3d 943

Lawrence Amaechi ENEH, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-75264.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2010.

Filed April 15, 2010.

Deniz S. Arik and Christopher John Stender, Stender and Pope, PC, Phoenix, AZ, for the petitioner.

Cynthia M. Parsons, Assistant United States Attorney, Phoenix, AZ, for the respondent.

Before CYNTHIA HOLCOMB HALL, JOHN T. NOONAN, and SIDNEY R. THOMAS, Circuit Judges.

HALL, Circuit Judge:

Petitioner Lawrence Amaechi Eneh, a native and citizen of Nigeria, was paroled into the United States in 2000 for adjustment of status. On April 15, 2002, Eneh was convicted for using a communication facility and interstate commerce in aid of racketeering enterprise, namely the sale of marijuana, and was sentenced to 36 months imprisonment. On September 19, 2003, the Department of Homeland Security issued Eneh a Notice to Appear, charging Eneh as removable due to his controlled substance conviction. Eneh conceded removability, and applied for asylum, withholding of removal, and withholding and deferral of removal under the Convention Against Torture ("CAT"). An Immigration Judge ("IJ") denied relief, and the Board of Immigration Appeals ("BIA") affirmed. He sought review in this court, which dismissed for lack of jurisdiction but transferred proceedings to the U.S. District Court for the District of Arizona. Petitioner filed a habeas petition with that court. On July 20, 2005, the government filed a motion to transfer the case to this court pursuant to the REAL ID Act of 2005. This court has jurisdiction pursuant to 8 U.S.C. § 1252. We grant the petition for review and remand to the BIA for further proceedings.

I.

On January 26, 2004, Eneh appeared, with counsel, for a merits hearing before the IJ. Eneh testified that in 1994 he contracted HIV while working at a nursing home in Minnesota and that he now has AIDS, Capsis Sarcoma, and Valley Fever, requiring him to take 35 pills throughout the course of the day. He testified that prison doctors have told him that he would die without this medication.

Eneh testified that he feared removal to Nigeria, because Nigerian citizens convicted of crimes in foreign countries are immediately taken into custody and imprisoned by Nigerian officials. He testified that prison conditions in Nigeria are terrible, and that the most medication that would be available to him would be aspirin. He testified that prison officials would deny him medicine because (1) people in Nigeria believe that AIDS is something people cause themselves and do not give it adequate attention; (2) Nigerian officials do not budget for AIDS medication; and (3) Valley Fever, which is particularly life threatening, is unknown in Nigeria. He testified that people living with AIDS in Nigeria are socially ostracized, and he specifically testified that he would be intentionally tortured in prison because he has AIDS. See Jan. 26, 2004 Transcript at 48-49. Eneh provided documentary evidence to support his claims, namely that he indeed has AIDS, cancer and Valley Fever and that people with HIV/AIDS in Nigeria are ostracized publicly and socially. He also submitted the State Department's 2002 Country Report for Nigeria, which indicates that prison officials in Nigeria often withhold medical treatment as a form of punishment. See U.S. State Dep't, Country Reports on Human Rights Practices-2002-Nigeria, at § 1(c) (Mar. 31, 2003).

The IJ concluded that Eneh "was forthright and sincere in all of his testimony and the Court ... is deeming the respondent credible in his testimony." Nonetheless, the IJ denied all of Eneh's claims. The IJ held that Eneh was statutorily ineligible for asylum and withholding of removal as a result of his controlled substance conviction. With regard to deferral of removal under CAT, the IJ concluded that Eneh's medical deprivation and ostracism in Nigeria would not amount to torture under CAT. He stated:

There is not any doubt that the respondent's medication may be lacking if he is removed from the United States to Nigeria. However, it is the conclusion of this Court that that will not be done at the instigation of or with the consent or acquiescence of a public official who has custody or control of the respondent and it does not meet the requirement that the act be intentionally inflicted or for a proscribed purpose. It appears from all the documents submitted that Nigeria is in the middle of an AIDS epidemic, and they simply, at this point, do not have the resources to properly treat all the patients requiring medication.

In denying CAT relief, the IJ stated, "It's a shame, the respondent is very articulate and his sentence is two to five, a plea to allow him to remain in the United States and the Court would note that if this were a discretionary request, I would grant it."

On June 21, 2004, the BIA dismissed Eneh's appeal in a brief opinion. The entirety of the BIA's discussion of Eneh's CAT claims is as follows:

We agree with the Immigration Judge that the respondent has not established that it is more likely than not that he will be tortured if removed to Nigeria due to his drug trafficking conviction. There is no evidence in the record which demonstrates a likelihood that the respondent will be detained upon return to Nigeria or that he will otherwise be subject to torture.

The BIA also affirmed the denial of Eneh's asylum and withholding of removal claims.

II.

Where the BIA conducts its own review of the evidence and the law, this panel only reviews the BIA's decision, except to the extent it expressly adopts the IJ's decision. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006). This panel reviews the BIA's factual findings for substantial evidence, and it must uphold those findings unless the record compels a contrary result. Mihalev v. Ashcroft, 388 F.3d 722, 724 (9th Cir.2004).

Subsequent to the briefing in this case, the Ninth Circuit has clarified that despite the jurisdiction-stripping provision in 8 U.S.C. § 1252(a)(2)(C), it has jurisdiction over denials of deferral of removal under CAT. See Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir.2008). This jurisdiction-stripping provision only applies where the IJ expressly premised removal upon a criminal conviction, and not where the IJ based removal on the merits of petitioner's CAT claim. See id. at 1083-84; Morales v. Gonzales, 478 F.3d 972, 980 (9th Cir.2007). Because deferral of removal is available under CAT regardless of whether petitioner has been convicted of a crime, a denial of deferral of removal under CAT is always a decision on the merits. Lemus-Galvan, 518 F.3d at 1083. Accordingly, this court retains jurisdiction to review Eneh's deferral of removal claim. Id.¹

III.

To prevail on a claim under CAT, a petitioner must prove that it is more likely than not that he or she will be tortured if removed to the designated country. 8 C.F.R. § 208.16(c)(2); Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir.2005). Torture is defined as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity

8 C.F.R. § 1208.18(a)(1). Eneh does not challenge the denial of his asylum and withholding of removal claims. The sole issue on appeal is whether the BIA erred in denying Eneh deferral of removal under CAT.

It is difficult to discern from the BIA's opinion the precise grounds on which it denied relief. In its two-sentence discussion of Eneh's CAT claim, the BIA first states that "we agree with the Immigration Judge that the respondent has not established that it is more likely than not that he will be tortured if removed to Nigeria due to his drug trafficking conviction." This would seem to indicate that the BIA primarily adopted the IJ's more extensive analysis. The BIA then states that "there is no evidence in the record which demonstrates a likelihood that the respondent will be detained upon return to Nigeria...." However, the IJ did not conclude that Eneh would not be detained and imprisoned if he were removed to Nigeria. To the contrary, the IJ stated that "there is not any doubt that the respondent's medication may be lacking if he is removed from the United States to Nigeria," and he found "all" of Eneh's testimony to be credible. The IJ's sole basis for denying Eneh's CAT claim was that Eneh had not established that the poor treatment of Nigerian prisoners with AIDS constituted intentional torture.

It is unclear whether the BIA adopted the IJ's reasoning in its entirety, affirmed on alternate grounds, added an additional ground for denying Eneh's claim, or simply misconstrued the IJ decision. Such ambiguity in the midst of the BIA's already limited analysis makes us unable to review the decision below in an adequate manner. See, e.g., Garcia Gomez v. Gonzales, 498 F.3d 1050, 1051 (9th Cir. 2007) ("The BIA's sparse reasoning was inadequate to enable the Court of Appeals to perform any meaningful review." (internal quotation marks omitted) (alteration in original)); Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir.2006) ("In order for the court to exercise our limited authority, there must be a reasoned explanation by the BIA of the basis for its decision.").

Additionally, the BIA's statement that Eneh was not likely to be detained upon return to Nigeria was not supported by substantial evidence. Eneh credibly testified that Nigerian citizens...