Igiebor v. Barr

• Decision Date: 07 December 2020
• Docket Number: No. 19-9579,19-9579
• Citation: 981 F.3d 1123
• Parties: Eseos Osa IGIEBOR, Petitioner, v. William P. BARR, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

981 F.3d 1123

Eseos Osa IGIEBOR, Petitioner,

v.William P. BARR, United States Attorney General, Respondent.

No. 19-9579

United States Court of Appeals, Tenth Circuit.

FILED December 7, 2020

Submitted on the briefs:^*

Michael E. Ward, Alston & Bird LLP, Washington, D.C., on the briefs for Petitioner.

Joseph H. Hunt, Assistant Attorney General; Ethan P. Davis, Acting Assistant Attorney General; Jeffrey Bossert, Acting Assistant Attorney General; John S. Hogan, Assistant Director; John W. Blakeley, Assistant Director; Laura M.L. Maroldy, Trial Attorney; Christina R. Zeidan, Trial Attorney; W. Manning Evans, Sr. Litigation Counsel; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., on the briefs for Respondent.

Before TYMKOVICH, Chief Judge, BRISCOE, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Eseos Igiebor, a citizen and native of Nigeria, entered the United States as a visitor in 1998. He became a lawful permanent resident ("LPR") in 2004. In 2014, he pleaded guilty to (1) aggravated identity theft, 18 U.S.C. §§ 2, 1028A and (2) conspiracy to commit wire fraud, mail fraud, and bank fraud, id. §§ 1341, 1343, 1344, 1349. He was sentenced to ninety-six months’ imprisonment and ordered to pay restitution. The Department of Homeland Security ("DHS") initiated removal proceedings against Igiebor in 2018.¹ Igiebor conceded removability, but sought deferral of removal pursuant to the Convention Against Torture ("CAT"). See 8 U.S.C. § 1231(b)(3) ; 8 C.F.R. §§ 1208.16 – 1208.18. He asserted that due to his status as a homosexual, he would be tortured if removed to Nigeria. An immigration judge ("IJ") concluded Igiebor's testimony was not credible and found Igiebor failed to show it is more likely than not he would be tortured if returned to Nigeria. The Bureau of Immigration Appeals ("BIA") determined the IJ did not commit clear error in finding Igiebor not credible and, given that adverse credibility determination, the IJ correctly found Igiebor did not carry his burden of proving it was more likely than not he would be tortured if returned to Nigeria. Igiebor petitions for review, challenging several aspects of the BIA's decision.

This court has jurisdiction to reach the merits of Igiebor's petition. Although he was removed to Nigeria during the pendency of this appeal, Immigration and Customs Enforcement ("ICE") has made clear, through its Facilitation of Return Policy, ICE Policy Directive 11061.1 (Feb. 24, 2012), it would facilitate Igiebor's return to the United States should he succeed before this court. Furthermore, the Supreme Court recently held that the jurisdictional bar set out in 8 U.S.C. § 1252(a)(2)(C)–(D) does not apply to final orders denying CAT relief. Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1692, 207 L.Ed.2d 111 (2020). On the merits, we conclude Igiebor has failed to identify any legal or factual error on the part of the BIA. Thus, exercising jurisdiction pursuant to 8 U.S.C. § 1252(b)(4), this court denies Igiebor's petition for review.

II. BACKGROUND

Igiebor entered the United States in 1998. He married Rebecca Warner in 1999. Shortly after the birth of their child, they separated. He became an LPR in 2004. In 2014, Igiebor pleaded guilty to aggravated identity theft and conspiracy to commit wire fraud, mail fraud, and bank fraud. The court sentenced him to ninety-six months in prison and ordered him to pay $9,660,658.17 in restitution to the Internal Revenue Service. In 2018, DHS initiated removal proceedings against Igiebor based on these aggravated felony convictions. See supra n.1. He conceded his removability, but sought relief in the form of, inter alia , deferral of removal under CAT based on his sexual orientation.

Igiebor proceeded pro se in his application for deferral of removal and in testifying before the IJ. In his application, he stated he was severely beaten and tortured because of his sexual orientation the last time he was in Nigeria. Igiebor explained he returned to Nigeria in 2006 for his father's burial. While he was there, Igiebor alleged he sought comfort from another man, Victor Fosa. After villagers saw the two men holding hands and kissing, Igiebor claimed they attacked the pair because "homosexuality is seen as an abomination in Nigeria." When police arrived, they allegedly took Igiebor and Fosa into custody and, thereafter, stripped Igiebor naked and tortured him by denying him food and medical attention, beating him with a baton, and whipping him with a horse whip. Igiebor stated his mother bonded him out of custody after two days and took him and Fosa to the hospital. According to Igiebor, Fosa died a short time later. After receiving medical treatment, Igiebor returned to the United States when he heard a judge had issued an arrest warrant for him due to his sexual orientation.

In his hearing before the IJ, Igiebor testified to these same events, but added significant additional information. He testified, for example, that the police brought Fosa into his cell and directed the men to "face each other and start making out." He also claimed police tied a rope around his and Fosa's penises and ordered them to pull on each other's rope while the police laughed and made fun of them. Likewise, Igiebor testified about significant mistreatment his mother allegedly suffered at the hands of her family because she had aided him after the 2006 incident. As was true of other details bearing on conditions he alleged he would face if returned to Nigeria, these new facts were not included in Igiebor's application for deferral of removal. Igiebor asserted he omitted these details from his application because he is illiterate and someone helped him fill out his paperwork.

Igiebor brought corroborating documents to court, including letters from friends and family attesting to his sexual orientation; photographs of scars from a beating; a medical record relating to his 2006 detention; an extract from a record of the Nigerian police force; and an affidavit by a Nigerian village chief regarding the 2006 incident, Igiebor's "wanted" status with the Nigerian government and police force, and the dangers Igiebor faces in Nigeria. The IJ accepted most of the documents into evidence but excluded, at the request of the government, two of the three documents set out at Exhibit 9 of Igiebor's application. The IJ excluded for lack of authentication, pursuant to 8 C.F.R. § 1287.6, a record from the Nigerian police force and a medical record. At the hearing, the IJ also excluded the third document in Exhibit 9, an affidavit from the chief of Igiebor's community, on this same basis. In its oral decision, however, the IJ admitted the chief's affidavit, deemed it "not reliable," and concluded it had "little evidentiary value, if any."

The IJ denied Igiebor's request for deferral of removal. The IJ determined Igiebor was not credible because of inconsistencies and omissions in his application, testimony, and documentation. The IJ discounted the corroborating evidence submitted by Igiebor and explained why the excluded evidence would not have been persuasive even if it had been admitted. The IJ concluded Igiebor failed to prove it is more likely than not he would be tortured if returned to Nigeria. Igiebor, with the assistance of pro bono counsel, appealed to the BIA. He argued as follows in his brief before the BIA: (1) the IJ's adverse credibility finding was clearly erroneous; (2) the IJ erred in excluding or discounting the corroborating evidence he submitted; and (3) he established eligibility for deferral of removal under CAT because of his sexual orientation. The BIA dismissed Igiebor's appeal, thereby upholding the IJ's denial of relief. In so doing, the BIA concluded the IJ's adverse credibility determination was well-supported by the record and, when combined with the absence of meaningful evidence in corroboration, the adverse credibility determination left the record devoid of evidence necessary for Igiebor to carry his burden of showing the likelihood he would be tortured if removed to Nigeria.

Represented by new counsel, Igiebor filed a petition for review in the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit transferred the petition to this court because Igiebor's immigration proceedings were completed in Okmulgee, Oklahoma. See 8 U.S.C. § 1252(b)(2). While Igiebor's petition for review was pending in this court, he moved for a stay of removal. This court denied the request for a stay and Igiebor was removed to Nigeria on December 10, 2019.

III. ANALYSIS

A. CAT

CAT was implemented by the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub. L. No. 105-277, Div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (Oct. 21, 1998) (codified as Note to 8 U.S.C. § 1231, United States Policy with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture). See generally Nasrallah , 140 S. Ct. at 1690 (discussing FARRA and CAT). CAT "prohibits removal to a country where an alien would probably face torture." Ismaiel v. Mukasey , 516 F.3d 1198, 1204 (10th Cir. 2008). "Relief under the CAT is mandatory if the convention's criteria are satisfied." Id. ; see also 8 C.F.R. § 1208.16(c)(4) (providing that an alien meeting CAT's criteria "shall be granted," at a minimum, deferral of removal). "A claim under CAT differs from a claim for asylum or withholding of removal under the INA [Immigration and Nationality Act] because there is no requirement that the petitioner[ ] show that torture will occur on account of a statutorily protected ground." Cruz-Funez v. Gonzales , 406 F.3d 1187, 1192 (10th Cir. 2005).

CAT's implementing regulations are found at 8 C.F.R. §§ 1208.16 – 1208.18. To be entitled to any type of CAT relief, an applicant must "establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." Id. §...