Aligwekwe v. Holder, No. 08-60301 (5th. Cir. 9/8/2009)
| Decision Date | 08 September 2009 |
| Docket Number | No. 08-60301.,08-60301. |
| Parties | PAULINE EKEMMA ALIGWEKWE, Petitioner, v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Before: BENAVIDES, DENNIS, and ELROD, Circuit Judges.
*
Petitioner Pauline Ekemma Aligwekwe, a native and citizen of Nigeria, was charged with being an alien remaining in the United States longer than permitted. An Immigration Judge (IJ) found her removable, denied her applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), and ordered her removed. The Board of Immigration Appeals (BIA) dismissed her appeal of the IJ's order. Ms. Aligwekwe filed a petition for review of the BIA's decision.
Ms. Aligwekwe's claims for asylum and related remedies revolve around her experiences as a Catholic nun in Nigeria. Ms. Aligwekwe, a native of Nigeria, entered the United States as a non-immigrant visitor on May 23, 2003, with authorization to remain no longer than May 18, 2004. Ms. Aligwekwe entered the convent in 1960 and joined the Congregation of the Immaculate Heart. She traveled abroad for her education and received a Ph.D. from the Sorbonne in Paris in 1980.
On a visit home from school in 1978, Ms. Aligwekwe met the priest who would later become bishop of her archdiocese, Anthony Ilonu. Two years later, she visited Bishop Ilonu to congratulate him on his studies. According to Ms. Aligwekwe, Bishop Ilonu allegedly disrobed and sexually propositioned her while showing her around his quarters. Ms. Aligwekwe testified that she left the room immediately and was later escorted back to her convent by the bishop.
In 1985, Ms. Aligwekwe resigned from the Immaculate Heart Congregation because she desired to start her own convent. According to canon law, the resignation caused her to revert to lay status. In 1992, she took early retirement from her job as a professor in order to devote herself fully to starting her new religious order. She attempted to start the convent outside her diocese, but several Nigerian bishops instructed her to return home. Over the course of the next five years, she continued to work towards establishing her order.
Church law required that Ms. Aligwekwe obtain a written charter from Bishop Ilonu before starting her new order; she asserts that Bishop Ilonu abused his position in this regard. Ms. Aligwekwe claims that Bishop Ilonu continued his sexual harassment while she was petitioning him for the charter, but acknowledges that he did not physically touch her other than massaging her hand. In 1997, Bishop Ilonu gave her verbal permission to open the new convent, but failed to provide the charter required by canon law. Ms. Aligwekwe asserts that in 1999, Bishop Ilonu disbanded her order in retaliation for her resistance to his sexual advances and for reporting his sexual laxity to the Vatican.
On August 17, 2002, the convent Ms. Aligwekwe founded was attacked by seven armed men who have not yet been identified. The assailants broke into the convent, shot a statue present in the chapel, and injured the night watchman with a machete. Ms. Aligwekwe was not present at the convent on the night of the attack. She claims that Bishop Ilonu and his alleged girlfriend, Rosemary Uche, were behind the attack, but has presented no evidence of Bishop Ilonu's involvement. After the attack, M s. Aligwekwe hid with friends and moved in with her sister before moving to the United States.
Ms. Aligwekwe applied for asylum and related remedies on July 20, 2004, two months after her authorized status expired. On November 2, 2004, Ms. Aligwekwe appeared before an IJ and conceded the factual allegations and acknowledged her removability under 8 U.S.C. § 1227(a)(1)(B). At her merits hearing in February 2005, Ms. Aligwekwe asserted that her asylum application was filed within a reasonable amount of time because she had hoped that her problems in Nigeria would resolve.
Before the IJ, Ms. Aligwekwe argued that she qualified for asylum and withholding of removal on the grounds that she was persecuted on account of her religion and her membership in a social group. Specifically, Ms. Aligwekwe claimed persecution because she practiced Catholicism as it "was supposed to be practiced as opposed to the way it was practiced by [Bishop Ilonu]." She asserted that her resistance to Bishop Ilonu's sexual harassment and her teaching against sexual abuse in the convent she founded also resulted in persecution. Ms. Aligwekwe also claimed persecution on account of her membership in a particular social group, specifically "women religious in Nigeria who challenge a Catholic Bishop." Ms. Aligwekwe also petitioned for relief under the CAT on the grounds that she feared for her life after the attack on her convent and that the Nigerian government was unable or unwilling to protect her from Bishop Ilonu.
On February 25, 2008, the IJ rendered his initial decision, finding Ms. Aligwekwe credible, but nevertheless denying her applications for asylum and related remedies. As a preliminary matter, the IJ did not decide the question of whether Ms. Aligwekwe timely filed her claims. In support of his decision on the merits, the IJ noted that Bishop Ilonu's sexual harassment never went beyond propositioning her and touching her hand and thus did not rise to the level of persecution. Regarding the attack on her convent, the IJ found that there was no evidence indicating that the attack was carried out under the Bishop's orders. Furthermore, the IJ determined that Bishop Ilonu was not an official of the Nigerian government and that the petitioner had failed to demonstrate that any government official had prior knowledge of the attack and failed to stop it. The IJ concluded that this matter was a private dispute and could not serve as the proper basis for Ms. Aligwekwe's requests for asylum and related remedies.
On appeal to the BIA, Ms. Aligwekwe moved to remand based on previously unavailable evidence, including a website maintained by Bishop Ilonu's supporters that urged vengeance upon her. The BIA determined that this evidence was material and went to the heart of her claims. The Department of Homeland Security did not oppose her motion and the BIA remanded the case back to the IJ to take additional evidence.
On remand, the IJ again denied Ms. Aligwekwe's claims and made several findings that differed from those of his original decision. First, the IJ concluded that Ms. Aligwekwe was not credible. The IJ based this conclusion on the fact that she continued to call herself a Catholic nun despite the fact that the Vatican had revoked her status as a consecrated nun when she resigned from the Congregation of the Immaculate Heart. The IJ also found that she had distorted the sequence of the events in question. Finally, the IJ found that her asylum application was not timely filed and was frivolous.
Turning to Bishop Ilonu's sexual harassment, the IJ determined that the "proposition and subsequent hand petting" did not rise to the level of persecution. Furthermore, the IJ found that the bishop's conduct was not motivated in any way by Ms. Aligwekwe's religion; there was no evidence that the bishop ever attempted to change her religious beliefs about chastity and celibacy. Rather, the IJ concluded that Bishop Ilonu simply invited her to participate in an immoral act to satisfy his own desires. Furthermore, the IJ concluded that Ms. Aligwekwe's complaints against the bishop were not in any way declarations of her own faith, but were simply accusations of wrongful conduct.
With respect to the convent's closure, the IJ found that the record did not support Ms. Aligwekwe's claims of retaliation. The IJ pointed to an official letter from Cardinal Tomko indicating that the convent was in fact closed pursuant to a general order of the Provincial Council of Nigerian Bishops. This order required the closure of all religious societies that did not have written charters. The IJ concluded that this letter was the "best and most reliable evidence" as to why Ms. Aligwekwe's convent was closed. In addition, the IJ observed that Ms. Aligwekwe had not presented sufficient evidence to demonstrate that she was entitled to receive a charter and that her order fully complied with the requirements of the Catholic Church. Without such a showing, the IJ was unable to conclude that retaliation was the basis for the closure of her convent.
Regarding the attack on the convent, the IJ again found that there was no reliable evidence in the record that could link Bishop Ilonu to the attack. The IJ observed that the bishop's alleged girlfriend, Rosemary Uche, did have a motive for instigating the attack, but that her motive was personal and therefore not a basis for asylum or withholding of removal. In addition, the IJ noted that these events took place within the Diocese of Okigwe and that the record did not establish that Ms. Aligwekwe could not relocate safely to other parts of Nigeria.
Finally, the IJ rejected Ms. Aligwekwe's arguments that she faced future persecution or torture at the hands of or with the acquiescence of government officials. The IJ stated that persecution, under the immigration laws, involves conduct by the government or private parties that it is unable or unwilling to control.1 The IJ observed that cases involving persecution due to government inability to control are relatively rare and normally involve large terrorist groups or a complete breakdown of social order. The IJ characterized the instant case as involving the more common category of government unwillingness to control a private party. According to the IJ, a government need only take "responsible steps, within the...
To continue reading
Request your trial