Falaja v. Gonzales, 04-1840.

• Decision Date: 15 August 2005
• Docket Number: No. 04-1840.,04-1840.
• Citation: 418 F.3d 889
• Parties: Titilayo FALAJA, Adebayo Falaja, Petitioners, v. Alberto GONZALES, Attorney General of the United States of America,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

418 F.3d 889

Titilayo FALAJA, Adebayo Falaja, Petitioners, v. Alberto GONZALES, Attorney General of the United States of America,¹ Respondent.

No. 04-1840.

United States Court of Appeals, Eighth Circuit.

Submitted: February 18, 2005.

Filed: August 15, 2005.

COPYRIGHT MATERIAL OMITTED

Philip F. Fishman, Minneapolis, MN, for Petitioners.

John Andre, Dept. of Justice, Washington, DC, for Respondent.

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit Judges.

BOWMAN, Circuit Judge.

Titilayo Falaja (Titilayo) and her son Adebayo Falaja (Adebayo) appeal the decision of the Board of Immigration Appeals (BIA) denying their applications for asylum, withholding of removal, relief under the United Nations Convention Against Torture (CAT), and adjustment of status to lawful permanent residents. Adebayo also moves for a stay pending appeal of the BIA's grant of voluntary departure. We affirm the decision of the BIA and grant Adebayo's motion for a stay.

I.

The Falajas are natives and citizens of Nigeria who entered the United States as nonimmigrant visitors on February 1, 1992, and remained beyond their authorized stay. On July 25, 1994, Titilayo filed an application for asylum and withholding of removal that included Adebayo as a derivative beneficiary of her application. An asylum officer interviewed Titilayo in 1999 and referred the application to the immigration court. The Immigration and Naturalization Service (INS) initiated removal proceedings in October 1999 by issuing a Notice to Appear, which charged that the Falajas were removable from the United States as aliens who remained in the United States without authorization from the INS after their period of admission as visitors for pleasure had expired. See 8 U.S.C. § 1227(a)(1)(B) (2000).

At a hearing before an immigration judge (IJ) on February 3, 2000, the Falajas conceded the charge of removability. They declined to designate a country of removal, and the IJ designated Nigeria. The Falajas renewed their request for asylum, withholding of removal, protection under the CAT, or voluntary departure. Following a hearing on the merits in December 2000, wherein the Falajas testified and submitted evidence, the IJ denied relief after finding significant aspects of Titilayo's testimony not credible. In lieu of removal, however, the IJ granted both petitioners voluntary departure.

The Falajas appealed to the BIA. During the pendency of the appeal, the Falajas asked the BIA to remand the case to the IJ for consideration of an application for adjustment of status—to that of aliens admitted for permanent residence—based upon Titilayo's receipt of an employer-based immigrant visa. See id. § 1255(a). The BIA granted the motion to remand. After holding a hearing on the adjustment of status application, the IJ denied the application. The IJ concluded that Titilayo was ineligible for adjustment of status because she failed to meet the statutory requirement that a petitioner be "admissible to the United States." Id. The IJ found Titilayo inadmissible pursuant to Section 212(a)(6)(C)(i) of the Immigration and Naturalization Act (Act), which precludes admission to an alien who seeks to procure an immigration benefit by "willfully misrepresenting a material fact." Id. § 1182(a)(6)(C)(i). Relying on its earlier finding that Titilayo was not credible, the IJ determined that the Falajas made willful misrepresentations of material facts in order to secure the benefit of asylum. The IJ then reconsidered its previous grant of voluntary departure and entered a new order denying voluntary departure based on its finding of willful misrepresentations.

The Falajas appealed to the BIA. The BIA affirmed the IJ's decision denying asylum, withholding of removal, and relief under the CAT based upon the IJ's adverse credibility finding. The BIA also affirmed the IJ's decision denying the application for adjustment of status based upon findings that Titilayo made willful misrepresentations of material facts and testified falsely under oath in an attempt to obtain asylum. Concluding that Titilayo's false statements before the IJ barred her from establishing the requisite good moral character for voluntary departure, the BIA affirmed the IJ's denial of Titilayo's request for voluntary departure. The BIA found insufficient evidence, however, to support a finding that Adebayo gave false testimony and accordingly vacated the portion of the IJ's decision denying him voluntary departure. The BIA granted Adebayo a thirty-day voluntary departure period. This appeal followed.

The Falajas' basic claim is that they have a well-founded fear of religious persecution, particularly by Titilayo's father, should they return to Nigeria.² Titilayo was raised in a Muslim family, and her father was an imam at the local mosque. Titilayo testified that her father physically abused her often when she was a child. On an occasion when Titilayo was six years old and disobedient, he allegedly scarred both of her cheeks by cutting them with a knife. When Titilayo was ten years old, she fell and broke her wrist while her father was beating her. When she was about twelve years old, her father allegedly threw a knife at her, cutting her leg. Titilayo testified that the abuse increased when she began sneaking out of the house to attend a Christian church around the age of twelve. Titilayo's father told her that her conversion to Christianity was a disgrace to her family, particularly given his leadership position at the mosque. According to Titilayo, on multiple occasions her father threatened to kill her for converting to Christianity. When he found a Bible in her bag, he beat her. She testified that on a day that she went to church when she was seventeen years old, her father pushed her, causing her to cut her chin on a piece of metal. Titilayo alleged that her father had authority over her even after she left his house and married.

Titilayo also claims that she was persecuted because of her religion outside the family home. She testified that in October 1986, as she was leaving a Christian church with a group of Christians, six Muslims approached and yelled insults at them. Then the Muslims began beating the Christians, including Titilayo. No one was seriously injured. Titilayo also testified that in October 1987, Muslims interrupted the church service that she was attending by singing anti-Christian songs and threatening to kill the Christians. The Muslims beat the Christians with long sticks, and Titilayo was bruised in the attack. Titilayo and other Christians were then arrested and detained for four hours before being released.

Because she is Christian, Titilayo claims that she was thwarted in her efforts to own a farm and restaurant in Nigeria. Shortly after she purchased a farm, it was burned while she was out of the country. A neighbor told Titilayo that the farm was burned because she was a Christian. For a short time, Titilayo also operated a restaurant in a bank building. The restaurant was closed by the bank, however, when visiting bank executives complained that Titilayo was a Christian.

Titilayo testified that other members of her family who were Christians were also persecuted. Her sister was injured when Muslims raided her Christian church; she later died from the injury. In 1991, her mother-in-law and father-in-law were beaten by Muslims while attending a Christian church. The Muslims set fire to the church. Titilayo's father-in-law died from injuries sustained in the attack. Titilayo was in the United States at the time, and her husband fled Nigeria and left two of her children with a friend in Lagos, Nigeria. In 1993, Titilayo's father took the children from the friend's house and brought them to his house in Kaduna, Nigeria. Titilayo testified that her father abused the children because Titilayo was Christian. Titilayo's son soon left his grandfather's house and went to live with Titilayo's friend in Lagos. But Titilayo's daughter remained living at his house until she left to attend college in 1998. Titilayo claimed that in early 1998, her father tore her daughter's clothes off in the street and beat her daughter as punishment.

The Falajas seek review of the BIA's decision to uphold the denial of their requests for asylum, adjustment of status, withholding of removal, and relief under the CAT. Adebayo further seeks a stay of the BIA's grant of voluntary departure until the issuance of our mandate in this action.

II.

Because the BIA's decision is the final decision of the agency, it is the subject of our review. Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir.2005). To the extent, however, that the BIA adopted the findings or the reasoning of the IJ, we also review the IJ's decision as part of the final agency action. Id.

III.

We begin our review by examining the BIA's denial of the Falajas' petition for asylum and its related denial of withholding of removal and relief under the CAT. Section 208 of the Immigration and Naturalization Act gives the Attorney General discretion to grant asylum to an individual who is a "refugee." 8 U.S.C. § 1158(b)(1) (2000). A refugee is defined by the Act as an alien who is unwilling or unable to return to his or her country of nationality "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1101(a)(42)(A). An alien petitioning for asylum bears the burden of proving past persecution or a well-founded fear of future persecution on account of one of the enumerated factors. 8 C.F.R. § 208.13(a) (2004). A well-founded fear is one that is both "subjectively genuine and objectively reasonable." Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.1993).

The BIA's determination that an alien is not eligible for asylum is reviewed under the substantial evidence standard. Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir.2002). Pursuant to...