Chukwu v. Attorney General of U.S.

• Citation: 484 F.3d 185
• Decision Date: 13 April 2007
• Docket Number: No. 05-4068.,05-4068.
• Parties: Bredan Chima CHUKWU, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES; United States Department of Homeland Security, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

484 F.3d 185

Bredan Chima CHUKWU, Petitioner, v. ATTORNEY GENERAL OF the UNITED STATES; United States Department of Homeland Security, Respondents.

No. 05-4068.

United States Court of Appeals, Third Circuit.

Argued September 29, 2006.

Opinion Filed April 13, 2007.

Robert A. Cini (Argued), Law Offices of Howard M. Rosengarten, New York, NY, for Petitioner.

Richard M. Evans, Paul Fiorino, Carl H. McIntyre, Jr. (Argued), U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondents.

Before RENDELL, ROTH and JOHN R. GIBSON,^* Circuit Judges.

OPINION OF THE COURT

JOHN R. GIBSON, Circuit Judge.

Bredan¹ Chima Chukwu, a Nigerian citizen, petitions for review of the order of the Board of Immigration Appeals denying Chukwu's application for asylum, withholding of removal, and relief under the Convention Against Torture. The BIA adopted the Immigration Judge's finding that Chukwu's testimony was not credible because of unexplained inconsistencies between Chukwu's testimony, prior sworn statements, and his supporting documents, and that Chukwu failed to prove his case by sufficient credible evidence. We conclude that the IJ failed to take into account record evidence that did explain many of the discrepancies on which the IJ based his adverse credibility determination. Further, the IJ did not determine whether it was reasonable to expect Chukwu to produce corroboration of the facts which the IJ found should have been corroborated. We will therefore grant review, vacate, and remand for further proceedings.

I.

Chukwu arrived in this country on October 11, 2001, carrying a false United Kingdom passport in the name of George Brendon, which he had purchased in Togo. At the Miami airport, he signed a sworn statement admitting that he was not a British citizen, but stating that he was a resident of Ghana. He said that his purpose in coming to the United States was "to see somebody." When asked why he left his country, he stated: "I left, because I am finding life very difficult," and he said he would be harmed if he returned to his country. He stated that he had never been arrested before, at any time or any place.

On August 20, 2002, Chukwu filed an application for asylum and withholding of removal in which he stated that he was a Nigerian citizen, though born in Ghana, and that he feared persecution on the ground of his politics, specifically his membership in the Movement for the Actualization for the Sovereign State of Biafra (MASSOB). His application stated that he had been arrested and beaten many times because of his membership in MASSOB and that he feared that he would be "arrested, tortured or killed by the present government of Nigeria" because of that membership. He listed five specific dates on which he had been arrested.

At his hearing before the IJ, Chukwu testified that he had been born in Ghana of a Nigerian family in 1958 and had moved back to Nigeria at the age of twelve. He lived in Lagos, in the southwest part of the country, and married a wife there in 1997. In 2000, he traveled some eight hours to the eastern part of the country to visit his brother in Port Harcourt, in the River State. While in Port Harcourt he joined MASSOB, which he described as an organization devoted to protecting the rights of the Ibo (sometimes spelled Igbo) ethnic group. As can be inferred from the name, the group also supports sovereignty for Biafra, an area that seceded from Nigeria in the 1960s, but was absorbed back into Nigeria after a costly civil war. Chukwu left Port Harcourt to attend a rally in support of a Biafran state on May 22, 2000, in the adjacent state of Abia. A Biafran flag was raised at the rally. When the police arrived at the rally, the crowd stampeded, and Chukwu was arrested, along with about 30 others. Because the police found a MASSOB membership card on Chukwu, they detained him and beat him. He was forced to sign a statement renouncing his membership in MASSOB before the police would release him.

Chukwu returned to Lagos, where he attended another rally on August 11, 2000. Again, the police arrived, the people panicked, and Chukwu was picked up along with others and taken to the police station, where he was detained and beaten. Again, he was only released upon signing papers renouncing MASSOB.

In September of the same year, Chukwu and his brother were sitting in a bar in Ikoyi, Lagos. Chukwu was complaining loudly about the government's arrest of Raphael Uwazurike, the leader of MASSOB. Plainclothes officers of the domestic security forces (SSS) overheard him. They arrested and searched him and found his MASSOB card. The officers then took him to a detention center and beat him until he lost consciousness. They held him for three days without giving him food or drink, except for the bread and water he was able to buy with money he had on him. As before, he was only released upon signing a paper saying he would never be a member of MASSOB again. This time, the police asked for his address.

The next time he was picked up, on February 10, 2001, he was simply walking down the street near his house in Lagos. The police asked his name, then took him in to ask him where he was on January 7, which had been the day of a clash between MASSOB and the police. He was released without mistreatment. A similar incident occurred on May 21, when police came to his house to collect him. On that occasion, police took him to the police station, but questioned and released him without beating him.

On July 24, 2001, police again came to Chukwu's house, but he was not home. They told his wife they were looking for him. On hearing this news, Chukwu decided to stay away from home. In September, he traveled to Togo looking for a trader he knew who could supply him with a British passport. He did not find the man, so he went home to Nigeria, but came back to Togo on September 15. This time, he got the passport, and he left for the United States, traveling via Europe.

For corroborating evidence, Chukwu submitted his Nigerian passport, his MASSOB membership card and a letter from the organization confirming his membership, an affidavit from his brother Emeka corroborating his story about the arrest in the bar, and a judicial decree granting his wife's petition to divorce him. The divorce decree recited his wife's testimony that Chukwu had

brought a bad name to the family as he is a member of movement for the Sovereign State of Biafra (MOSSOB). As a member of this group he has times without number been arrested and detained by the State Security Service. To forestall further arrest, the Respondent has to go into hiding and eventually traveled out of the country.

She said her love for Chukwu had "deteriorated due to this involvement with MASSOB." Chukwu also introduced correspondence from his solicitors concerning the divorce.

The 2001 State Department Country Report for Nigeria was also introduced. It reported that the government security forces "committed numerous, serious human rights abuses," and that "[a]rmy, police, and security force officers regularly beat protesters, criminal suspects, detainees, and convicted prisoners." It also reported that police and security forces practiced "arbitrary arrest and detention" and that they had used lethal force to quell protests or demonstrations that were perceived as becoming violent or disruptive. Chukwu also produced newspaper articles about MASSOB, and in particular, one article about the police burning down the MASSOB headquarters in Imo state.

The IJ found that Chukwu was not credible because of inconsistencies, implausibilities, and lack of corroboration for his testimony. In a short, but reasoned opinion, the BIA adopted and affirmed the IJ's decision, specifically agreeing with the IJ that "in light of the inconsistencies between the respondent's testimony, his supporting documents, and his sworn statement, and the respondent's failure [to] adequately explain the discrepancies, the respondent failed to meet his burden to establish his eligibility for the request[ed] forms of relief with sufficient credible evidence."

II.

A grant of asylum allows an alien who is otherwise subject to removal to stay in the United States because he is a refugee. Abdulai v. Ashcroft, 239 F.3d 542, 545 (3d Cir.2001). A refugee is someone who is unable or unwilling to return home because of persecution or a well-founded fear of persecution for one of five particular reasons — in this case, persecution on account of political opinion. 8 U.S.C. § 1101(a)(42)(A). To establish a well-founded fear of persecution, an applicant must show a subjective fear as well as an objectively reasonable possibility that he would suffer such persecution if he returned to his country. 8 C.F.R. § 1208.13(b)(2)(i).

Withholding of removal is a remedy distinct from asylum and confers only the right not to be deported to a particular country, rather than the right to stay in this one. Abdulai, 239 F.3d at 545. An applicant can establish the right to withholding of removal by showing a clear probability that his life or freedom would be threatened on account of one of the protected grounds in the proposed country of removal, 8 C.F.R. § 1208.16(b); Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.2005). Because it is more difficult to prove a clear probability of persecution than a reasonable possibility, an applicant who fails to prove eligibility for asylum perforce fails to show entitlement to withholding of removal. See Kibinda v. Att'y Gen., 477 F.3d 113, 123 (3d Cir.2007).

Finally, an applicant can be eligible for withholding of removal under the Convention Against Torture if he shows that it is more likely than not that he would be tortured upon return to his country. 8 C.F.R. § 1208.16(c).

Only the decision by the BIA is a "final order of removal," Abdulai, 239 F.3d at 548-49, subject to our review, id. We therefore do not review the IJ's opinion in its own right. Id....