Ezeagwu v. Mukasey
| Decision Date | 08 August 2008 |
| Docket Number | No. 07-1668.,07-1668. |
| Parties | Johnson Uchenna EZEAGWU, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Barton C. Winter, Minneapolis, MN, for petitioner.
Aliza B. Alyeshmerni, Dept. of Justice, Washington, DC, for respondent.
Before BYE, SMITH, and COLLOTON, Circuit Judges.
Johnson Uchenna Ezeagwu petitions for a review of a decision of the Board of Immigration Appeals (BIA) denying his application for asylum and withholding of removal and for relief under Article III of the Convention Against Torture (CAT). We deny the petition.
Ezeagwu is a native of Nigeria. He entered the United States as a visitor for business on October 19, 1996, and again on July 26, 1997. Ezeagwu married Carolyn Roach, a citizen of the United States, 46 days after his second entry into the country. On September 30, 1997, he petitioned to have his status adjusted to that of a lawful permanent resident, pursuant to 8 U.S.C. § 1154(a)(1). After Ezeagwu traveled to Nigeria in 2004, he was granted advance parole back into the United States on the basis of his pending petition for adjustment of status. See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5(c), (f). In September 2004, the United States Citizenship and Immigration Services notified Ezeagwu and Roach that it would deny the petition on the ground that the couple had entered into the marriage for purposes of circumventing the immigration laws. 8 U.S.C. § 1154(c). The petition was formally denied on February 22, 2005.
On September 3, 2004, the Department of Homeland Security (DHS) served Ezeagwu with a notice to appear, alleging that he was deportable as an alien present without a valid entry document. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). The notice was filed with the immigration court on March 22, 2005. On July 20, 2005, the DHS notified Ezeagwu of an additional charge that he was removable as an applicant who sought to procure admission to the United States by misrepresenting a material fact, i.e., that his marriage was bona fide. See 8 U.S.C. § 1182(a)(6)(C)(i). This notice was filed on October 19, 2005. Ezeagwu conceded removability on the first charge, but on November 23, 2005, he filed an application for asylum to avoid removal. On his application, he checked boxes stating that he had experienced harm or mistreatment in Nigeria, and that he feared harm or mistreatment if he were returned, but also that he had never been "arrested, detained, [or] interrogated" in his home country. Ezeagwu did not elaborate on the allegations in his initial application.
On September 12, 2006, almost 10 months after filing his initial application, Ezeagwu resubmitted his asylum application with an accompanying affidavit. Ezeagwu averred that while attending the University of Lagos, he participated as a student leader in the "Association Internationale des Etudiants en Sciences Economiques et Commerciales" (AIESEC). Ezeagwu said he was interviewed by a reporter for Vanguard, a Nigerian newspaper, after he helped to organize an AIESEC conference in 1986. Ezeagwu claimed that his comments were published in a front page article, that the ruling government of Nigeria was displeased by the remarks, and that the State Security Services (SSS) were dispatched to look for him. Ezeagwu alleged that he then went into hiding in Nigeria. Ezeagwu further claimed that the SSS visited his home, took documents, and traumatized his then-wife and children. Ezeagwu stated that his fear of the SSS prompted him to move his family to the United States in 1996.
Ezeagwu also claimed that he was detained in the airport after returning to Nigeria in 2004 to visit his sick mother, and that he was interrogated by an SSS agent "for hours." He stated that the SSS eventually allowed him to leave the airport, but that SSS officers came looking for him during his stay. Ezeagwu alleged that the SSS ransacked his parents' home after he left the country.
At a hearing before an immigration judge, Ezeagwu testified that the Vanguard article bore the title "Student Leader Challenge [sic] Nigerian Military Government." Ezeagwu again emphasized that the SSS came looking for him after the publication of this article, but he also testified that he continued to attend school, and achieved a bachelor's degree in 1989 and a master's degree in 1992. After graduating, Ezeagwu worked for Xerox for five years, and then opened a successful business of his own, often traveling to the United States. Ezeagwu testified that he never had difficulties obtaining visas for his travels.
Although Ezeagwu's affidavit included no mention of detention by the Nigerian government, he testified that in 1996, the SSS came to his place of work and took him to the Algonbon Close Detention Camp for three days. At first, Ezeagwu claimed that this occurred in 1986, but then changed the date to 1996 during questioning by the IJ. Ezeagwu alleged that SSS officials touched his genitals with a broom and fondled him while he was in detention. He testified that he was released only because of his father's connections with the SSS. Ezeagwu also testified that it was difficult for him to get government contracts when he returned from the United States in October 1996. He said that he eventually closed his business in 2003 because it was not running well in his absence.
On cross examination, Ezeagwu added that he was detained for two or three days in 1986, after the publication of the Vanguard article. When the IJ asked Ezeagwu why the detention was not mentioned in the affidavit or in his earlier testimony, Ezeagwu claimed that he had forgotten about it. Ezeagwu also testified that he was arrested in 1986 or 1987 for demonstrating in front of the student union. This incident was not discussed in Ezeagwu's affidavit.
The IJ denied Ezeagwu's application for asylum and his request for withholding of removal. Commenting on credibility, the IJ remarked that there were "some major problems" with the statement offered by Ezeagwu. The IJ found that Ezeagwu's affidavit was inconsistent in describing dates of events, and found it troubling that the affidavit failed to make any mention of Ezeagwu's alleged detentions. The IJ also viewed Ezeagwu's activities in Nigeria — continuing to attend a state-run school and traveling to and from the country on numerous trips between 1990 and 1997 — as inconsistent with his claims to be an "opponent of the government," and thought his efforts to return to Nigeria in 2004 and 2005 did not "comport with an individual who feels that he will be detained, tortured or killed if returned to his country." In view of these "problems," the IJ said he could not find that Ezeagwu presented a credible claim.
The IJ concluded by noting that Ezeagwu had failed to provide any corroborating evidence, such as a copy of the Vanguard article, evidence of his detentions, or objective evidence of his involvement in political organizations, to support the "core elements" of his claims. In light of what the IJ viewed as contradictory evidence concerning Ezeagwu's travels, the IJ believed the corroboration was important to establishing credibility. The IJ found the same credibility issues to be fatal to Ezeagwu's claim under the Convention Against Torture, and further noted that the former military regimes in Nigeria had been replaced by an elected government. In sum, the IJ declared that this was a "weak case for relief."
The BIA dismissed Ezeagwu's administrative appeal. It first concluded that the asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B). The BIA also found that the IJ's adverse credibility finding was not clearly erroneous. It cited Ezeagwu's failure to mention his alleged detentions and beating in his asylum application or written statement, his assertion that he simply "forgot" to mention the detention and did not want to "brag about" his association with the SSS, and the implausibility of Ezeagwu's ability to make numerous trips in and out of Nigeria if he really was at risk of persecution. The BIA also found no error in the IJ's conclusion that Ezeagwu failed to corroborate his claim adequately. The BIA noted that "[t]he weaker the applicant's testimony, the greater the need for corroborative evidence," and that a reasonable explanation for the absence of corroborating evidence should be provided where it is reasonable to expect such evidence.
The BIA also rejected Ezeagwu's claim that he received ineffective assistance of counsel, and that counsel's alleged failure to...
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