                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-12-2007

Egbule v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1384




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                Nos. 06-1384 & 06-1716


                            FRANKLIN GOZIE EGBULE,

                                                Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                Respondent



                        On Petition for Review of an Order of
                          The Board of Immigration Appeals
                     Immigration Judge: Honorable Mirlande Tadal
                                  (No. A97-518-171)


                                 Argued March 9, 2007

                    Before: SLOVITER and AMBRO, Circuit Judges
                               POLLAK,* District Judge

                             (Opinion filed: April 12, 2007)

R. Nicholas Gimbel, Esquire (Argued)
McCarter & English
1735 Market Street, Suite 700
Philadelphia, PA 19103



   *
    Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
Darcelle Gleason, Esquire
McCarter & English
100 Mulberry Street
Four Gateway Center
Newark, NJ 07102-0652

      Counsel for Petitioner

Patrick L. Meehan
  United States Attorney
Virginia A. Gibson
  Assistant United States Attorney
  Chief, Civil Division
Richard M. Bernstein (Argued)
  Assistant United States Attorney
Annetta F. Givhan, Esquire
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Thankful T. Vanderstar
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

      Counsel for Respondent



                                       OPINION


POLLAK, District Judge

      Franklin Gozie Egbule, a thirty-one year old citizen of Nigeria, petitions for review

of a Board of Immigration Appeals (BIA) decision (1) adopting and affirming an order of

an Immigration Judge (IJ) that denied Egbule’s application for asylum under 8 U.S.C. §

                                            2
1158(a), or for withholding of removal under 8 U.S.C. § 1231(b)(3), and (2) denying

Egbule’s motion to remand for the consideration of additional evidence.1 In light of the

government’s forthright acknowledgments in its brief and argument in this court that the

facts are in one salient respect more favorable to Egbule than the IJ perceived them to be,

we will grant the petition for review to the extent of remanding Egbule’s case to the BIA

with directions to return the case to the IJ for reconsideration.

                           I. Factual and Procedural Background

       In his application for asylum, Egbule alleged that he experienced past persecution,

leading to a well-founded fear of future persecution, on the basis of his membership in the

Movement for the Actualization of the Sovereign State of Biafra (MASSOB), a non-

violent organization advocating independence of the southeastern region of Nigeria. At

an evidentiary hearing before the IJ on June 15, 2005,2 Egbule testified that he

had been present at a MASSOB “launch” meeting in late 1999, had joined the

organization in February 2000, and had started driving a bus for the organization around

April 2000. He further testified that police had violently disrupted several MASSOB


   1
    The BIA also adopted and affirmed the Immigration Judge’s denial of relief under
the Convention Against Torture. Egbule does not appeal this aspect of the BIA’s
decision.
   2
     Between December 14, 2004 and June 15, 2005, Egbule had a total of eight removal-
related hearings. The IJ provided Egbule with an “Application for Asylum and
Withholding of Removal” form (“I-589”) at his second hearing, held on January 14, 2005.
At Egbule’s third and fourth hearings—held on February 11 and February 25—the IJ
continued proceedings due to Egbule’s inability to present a completed I-589 to the court.
J.A. at 150, 153-54.

                                               3
meetings at which he had been present. The most significant incident occurred in

December 2001, when the police allegedly fired live bullets into a crowd of over one

thousand MASSOB members. Egbule escaped and hid with a friend in a nearby village.

However, he later heard that the bus he drove to the meeting had been burned by police.

The bus was registered to MASSOB and had a photocopy of Egbule’s driver’s license in

the glove compartment.

       Soon after the December 2001 incident, Egbule allegedly received word that the

police were looking for him at his home. Egbule then fled to Lagos, where he hid for

another few months. When he heard that the police were still stopping by his home in the

course of their searches for MASSOB members, he arranged to travel to Germany on a

false passport and visa. Egbule testified that he had been in Germany for about two and a

half years when he heard that the Nigerian police were looking for him there. At that

point, he arranged to travel to the United States on a false passport and visa. In answer to

questions about how the police managed to identify and locate him, Egbule stated that he

thought the police may have searched the bus before burning it, thereby obtaining the

photocopy of his driver’s license.

       The documents Egbule provided in support of his testimony included his birth

certificate, driver’s license, MASSOB membership card, MASSOB membership form,

and news stories about the Nigerian government’s repression of MASSOB. At the June

15, 2005 hearing, Egbule was questioned about the fact that his membership form listed

his age as 26 rather than 25, and his profession as “trader” rather than “driver.” Egbule

                                             4
was also questioned as to why the form listed his official status as “member/driver” when

Egbule did not start driving for the organization until two months later. In response,

Egbule stated that he had pointed these inconsistencies out to the MASSOB secretary

when reviewing the membership form but had been told not to worry about them.

       The IJ determined that Egbule “failed to show that he is a member of MASSOB.

The document[] relied upon . . . as evidence that he was a member of MASSOB has

incorrect information. Therefore, the document is unreliable and will be given no weight

by the Court.” J.A. 128. The BIA concluded that the IJ’s adverse credibility

determination was not clearly erroneous.

       Egbule now seeks review of the BIA’s decision. In his petition for review, Egbule

argues, inter alia, that the IJ was incorrect to discount his evidence of MASSOB

membership on the basis of the minor clerical errors in his MASSOB membership

form—especially given Egbule’s presentation of evidence supporting the validity of the

membership form. On appeal, the government “agree[s] that the evidence in support of

petitioner’s contention that he was a member of MASSOB is substantial and that his

membership argument is well-taken.” Gov’t Br. 7.

                                       II. Discussion

       “Where . . . ‘the BIA directs us to the opinion and decision of the IJ who originally

assessed [the] application, we review the IJ’s opinion.’” Shah v. Att’y Gen., 446 F.3d 429,

434 (3d Cir. 2006) (quoting Dia v. Ashcroft, 353 F.3d 228, 240 (3d Cir. 2003) (en banc)).

In deciding whether an applicant qualifies for asylum or withholding of removal, this

                                             5
court reviews the IJ’s findings of fact for substantial evidence, asking whether the IJ’s

“determinations are ‘supported by evidence that a reasonable mind would find

adequate.’” Id. (quoting Dia, 353 F.3d at 249).

       The Immigration and Nationality Act (INA), 8 U.S.C. § 1001 et seq., authorizes

the Attorney General to grant asylum to an alien who demonstrates that he is “unable or

unwilling to return to, and is unable or unwilling to avail himself or herself of the

protection of” the country of his nationality “because of persecution or a well-founded

fear of persecution on account of . . . membership in a particular social group, or political

opinion.” 8 U.S.C. § 1158(b)(1) (requiring asylum applicant to conform to definition of

refugee); 8 U.S.C. § 1101(a)(42)(A) (defining refugee). As this court noted in Berishaj v.

Ashcroft, 378 F.3d 314 (3d Cir. 2004), in order to establish eligibility for asylum on the

basis of past persecution, an applicant must show: “(1) an incident, or incidents, that rise

to the level of persecution; (2) that is on account of one of the statutorily-protected

grounds; and (3) is committed by the government or forces the government is either

unable or unwilling to control.” Id. at 323 (internal quotation marks omitted). INA §

1231(b)(3) provides that the Attorney General “may not remove an alien to a country if

the Attorney General decides that the alien’s life or freedom would be threatened in that

country because of the alien’s . . . membership in a particular social group, or political

opinion.”

       The IJ’s finding that Egbule had not established his membership in MASSOB was

an important ingredient of her denial of Egbule’s applications for asylum and withholding

                                              6
of removal. However, as discussed above, Egbule’s membership in MASSOB is now

acknowledged by the government. Accordingly, we will remand to the BIA with

instructions that it remand to the IJ so that the IJ can reconsider Egbule’s applications for

asylum and withholding of removal in light of the government’s recognition that Egbule

was a member of MASSOB. The BIA, in its discretion, may wish to suggest that the IJ

consider the additional documents that Egbule acquired after his hearing in Immigration

Court, and which formed the basis for Egbule’s unsuccessful motion to the BIA for

remand to the IJ.3

       The petition for review will be granted and the case remanded to the BIA for

further proceedings in accord with this opinion.4




   3
   In view of our disposition of this case, we do not reach the question whether the
BIA’s denial of remand was an abuse of discretion.
   4
     We wish to express appreciation for pro bono counsel’s effective advocacy on
Egbule’s behalf. Both pro bono counsel and government counsel presented the case to
this court with marked professionalism.
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