Oyeniran v. Holder

• Citation: 2012 Daily Journal D.A.R. 3040,672 F.3d 800,12 Cal. Daily Op. Serv. 2708
• Decision Date: 06 March 2012
• Docket Number: Nos. 09–73683,10–70689.,s. 09–73683
• Parties: Daniel O. OYENIRAN, AKA Daniel Olu Abraham, AKA Daniel Segun Oyeniran, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

12 Cal. Daily Op. Serv. 2708
2012 Daily Journal D.A.R. 3040
672 F.3d 800

Daniel O. OYENIRAN, AKA Daniel Olu Abraham, AKA Daniel Segun Oyeniran, Petitioner,
v.
Eric H. HOLDER Jr., Attorney General, Respondent.

Nos. 09–73683

10–70689.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 2012.Filed March 6, 2012.

[672 F.3d 802]

Philip D. Bartz (argued) and Nicholas S. Sloey, Bryan Cave LLP, Washington, D.C., for the petitioner-appellant.

Enitan O. Otunla (argued) and Francis W. Fraser, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent-appellee.

On Petitions for Review of Decisions of the Board of Immigration Appeals. Agency No. A091–426–019.Before: M. MARGARET McKEOWN and MILAN D. SMITH, JR., Circuit Judges, and RUDI M. BREWSTER, District Judge.^*OPINION BREWSTER, Senior District Judge:

Petitioner Daniel O. Oyeniran (“Oyeniran”), a citizen of Nigeria, seeks review of decisions by the Board of Immigration Appeals (“BIA”) to deny him protection under the Convention Against Torture (“CAT”) and to deny his motion to reopen the case to consider new evidence.¹ We hold that collateral estoppel binds the BIA to its prior determination of the facts and legal consequences regarding past incidents

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of government-sponsored violence against Oyeniran's family due to his father's activities supporting Christianity over Islam. We also conclude that the BIA abused its discretion by denying Oyeniran's motion to reopen to consider the significant new evidence of a Nigerian arrest warrant that charges Oyeniran personally with inciting opposition to Sharia law. On remand, the BIA should consider all the new evidence, including Oyeniran's voluntary trip to visit his sick mother; however, the BIA's prior findings of fact constitute a baseline on which the BIA evaluates Oyeniran's current CAT application to determine whether it is more likely or not that he will be tortured if removed to Nigeria. We grant Oyeniran's petitions and remand for further proceedings consistent with this opinion.

I. Background

Oyeniran is a native and citizen of Nigeria. According to the United States Department of State's Country Reports on Human Rights Practices, Nigeria has equal populations of Christians and Muslims. Deaths and violence attributed to religious differences are common. Nigeria has a central federal government as well as thirty-six separate States. Since approximately 2000, twelve States have adopted Islam as the de facto State religion and now enforce Sharia law. The Sharia Penal Code is based upon the Koran and includes punishments such as stoning, amputation, and death.

In 1990, Oyeniran was admitted to the United States as a lawful permanent resident. In 2005, based upon several criminal convictions, he was found to be removable. Due to his criminal record, Oyeniran's only avenue for relief from removal is deferral under the CAT. 8 C.F.R. § 1208.17.

“An applicant qualifies for protection under[the] Convention Against Torture if he can show that if removed to his native country, it is more likely than not that he would be tortured by public officials, or by private individuals with the government's consent or acquiescence.” Afridi v. Gonzales, 442 F.3d 1212, 1221 (9th Cir.2006), overruled on other grounds by Estrada–Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc); 8 C.F.R. § 1208.18. “More likely than not” “means a greater than fifty percent chance of torture.” Edu v. Holder, 624 F.3d 1137, 1145 n. 16 (9th Cir.2010). Acquiescence exists when “public officials were aware of the torture but ‘remained willfully blind to it, or simply stood by because of their inability or unwillingness to oppose it.’ ” Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir.2008) (citation omitted); Afridi, 442 F.3d at 1221; Zheng v. Ashcroft, 332 F.3d 1186, 1194–95 (9th Cir.2003).

An alien who has been granted deferral of removal under the CAT may stay temporarily in the United States. 8 C.F.R. § 1208.17(b)(1)(i). The Government can terminate deferral status based on new evidence or when conditions change. Id. § 1208.17(b)(1)(iii), (b)(1)(iv), (d)(1).

A. Oyeniran Obtained Deferral under the CAT in 2005

In 2005, the Immigration Judge (“IJ”) applied the CAT standard to the evidence presented and held that Oyeniran was entitled to deferral. The Government appealed the ruling, but the BIA affirmed the decision to grant Oyeniran's CAT application.

The evidence relevant to the collateral estoppel issue included testimony by Oyeniran and an expert witness, and documents including Country Reports, police reports, and newspaper articles. In brief, the evidence showed that Oyeniran's father,

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Abraham Oyeniran, is a Pentecostal Christian Archbishop and President of the United Global Churches Association of Nigeria (hereinafter “Archbishop”).² The Archbishop is an outspoken and prominent critic of the Nigerian government and of extremist Islamic groups who seek to implement Sharia law. The Archbishop engaged in high-profile activities to convert Muslims to Christianity. He also supported the American war in Iraq.

Oyeniran described in detail two attacks on the Archbishop. Both occurred while Oyeniran was living in the United States. Oyeniran relayed the information his father told him, and substantiated the violent events by introducing police reports and newspaper articles. In the first attack in 2003, Islamic fundamentalists stopped the Archbishop's car on the way to a “crusade” and beat up the Archbishop's other son (Gbenga). In 2004, Islamic extremists invaded the Archbishop's home, beat up several members of the family, and made threats against all of the Archbishop's children. Oyeniran testified that the police knew the violence was based on religious differences, but they try to stay neutral and will not interfere or complete any investigation.

The expert testimony corroborated Oyeniran's position on three points. First, Nigerian culture holds each member of the family responsible for the controversial conduct of any single member; thus, the attacks on the Archbishop threatened the safety of his children, including Oyeniran. Second, the police acquiesce to violence between religious groups. Moreover, the authorities often provoke violence by hiring “thugs” to beat or rob religious activists. Third, Sharia law is pervasive in Nigeria and imposes harsh punishments that constitute torture.

Based on this record, in 2005, the IJ found and the BIA affirmed that Oyeniran was credible and that he presented sufficient evidence to show a likelihood that he would be tortured upon his return to Nigeria.

At every stage of the administrative proceedings, the Government challenged Oyeniran's claim. The Government argued Oyeniran had not established that he would be tortured with the acquiescence of the Nigerian government because his evidence was speculative and from unreliable sources. It argued that there was no evidence Oyeniran was in any danger simply because the Archbishop had been attacked by common criminals. The Government argued the motive for the attacks was unknown. It contended that the reasons the police failed to make any arrests were pure conjecture. The IJ and BIA rejected these arguments about the weight of the evidence and held that Oyeniran had met his burden of proof under the CAT.

B. Oyeniran Returns to Nigeria to Visit his Mother in the Hospital

In May 2007, the Archbishop asked Oyeniran to come to Nigeria to visit his mother who had suffered a severe stroke and might not survive. In June 2007, Oyeniran traveled to Nigeria and stayed with his mother in the hospital for a month.³ Several arrangements were made to ensure

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that no one knew Oyeniran was in Nigeria. Oyeniran stayed at the hospital his entire visit. Oyeniran's mother was protected at the hospital by the security that the church had hired for the Archbishop.

C. Oyeniran is Denied Deferral under the CAT in 2009

Upon his return to the United States, the Government initiated a second administrative proceeding to remove Oyeniran.⁴ This time, Oyeniran was denied deferral under the CAT.

Oyeniran and the expert witness both ratified their prior testimony. In contrast to the prior proceeding, the Archbishop testified in person and added his reasons for believing the violent incidents were committed by Sharia fundamentalists who wanted to harm his children. The Archbishop also testified that the church had hired security guards to protect him and his wife. He mentioned recent attempts to harm him. In addition, Oyeniran and the Archbishop described the security precautions taken for the month-long visit to the mother in the hospital in 2007. New corroborating documents were introduced.

The IJ found that Oyeniran was not credible and held that Oyeniran had not met his burden of proof, describing the evidence as speculative. Oyeniran appealed. The BIA affirmed the denial of deferral, even though, ironically, it expressly found Oyeniran's testimony credible, reversing the IJ on that point. It held the 2005 grant of deferral had “no dispositive effect” and that the CAT claim was properly considered “on a de novo basis.” The BIA rejected Oyeniran's res judicata argument holding that the grant of deferral is expressly subject to reconsideration. The BIA held that the violence in 2003 and 2004 did not amount to torture and that those attacks had not been sufficiently linked to the Nigerian government.

D. Motion...