                                                                                   FILED
                                  NOT FOR PUBLICATION                               DEC 17 2009

                                                                                MOLLY C. DWYER, CLERK
                              UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                                  FOR THE NINTH CIRCUIT

 GILBERT O. DURU, aka Gilbert                           No. 05-76887
 Onyeanusuonwu Duru; aka Gilbert
 Bur,                                                   BIA-1: A092-868-680

                Petitioner,                             MEMORANDUM*

   v.

 ERIC H. HOLDER, JR., Attorney
 General,

               Respondent.



                        Appeal from the Board of Immigration Appeals
                               Submitted December 10, 2009**
                                  San Francisco, California

                 Before: O’SCANNLAIN, COWEN,*** and RAWLINSON,
                                  Circuit Judges


        Gilbert Duru, a native and citizen of Nigeria, petitions for review of the Board


         *
          This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
         **
         The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
         ***
          The Honorable Robert E. Cowen, Senior United States Circuit Judge for the
Third Circuit, sitting by designation.
of Immigration Appeals’ (“BIA’s”) denial of deferral of removal under the United

Nations Convention Against Torture. Duru asserts that he has established that it is

more likely than not that he will be tortured upon return to Nigeria, and therefore,

meets the requirements for deferral as set forth in 8 C.F.R. §§ 208.16(c), 208.17(a).

We have jurisdiction under 8 U.S.C. § 1252; see also Lemus-Galvan v. Mukasey,

518 F.3d 1081, 1083 (9th Cir. 2008). We will reverse only if we conclude that the

evidence supports a contrary resolution that compels reversal. See 8 U.S.C. §§

1252(b)(4)(B), (C). We conclude that the BIA properly denied deferral as Duru

failed to meet his burden.

      Duru entered this country on a student visa and remained here unlawfully after

his visa expired. Duru has an extensive criminal record, including a conviction for

an aggravated felony involving drug-trafficking. In opposition to removal, Duru

raised a variety of claims. The gist of his opposition is that as an ex-convict, he

would face imprisonment and torture upon re-entry into Nigeria. Duru’s evidence

consists of (i) his testimony that he “heard” that during the 1990s the Nigerian

government tortured citizens who returned from the United States with criminal

records and (ii) a portion of a report from the United States Department of State

(“State Department”) discussing the harsh conditions in Nigerian prisons.




                                           2
      The Immigration Judge (“IJ”) ruled that Duru was ineligible for asylum,1

cancellation of removal, voluntary departure, restriction of removal or withholding

of removal due to his conviction for an aggravated felony involving drugs. The IJ

granted Duru’s application for deferral of removal under the Convention Against

Torture. The government appealed the IJ’s grant of deferral of removal. The BIA

sustained the government’s appeal, vacated the grant of deferral, and remanded for

the IJ to issue an order of removal. The BIA concluded that Duru failed to establish

that it is more likely than not that he would be tortured upon return to Nigeria.

      We conclude that the BIA correctly found that Duru failed to meet his burden

for deferral under § 208.17(a). The State Department’s report indicates that prison

conditions in Nigeria are harsh; however, the report provides no evidence of a policy

or practice of imprisoning citizens with criminal records upon re-entry. Moreover,

testimony of what Duru “heard” is insufficient to satisfy his burden under §

208.17(a). First, this evidence is uncorroborated hearsay. Second, it is stale. It is

possible that the conditions in Nigeria have changed significantly since the 1990s.

See Delgado v. Holder, 563 F.3d 863, 874 (9th Cir. 2009) (affirming denial of

deferral as the alien’s evidence of torture of his parents in the 1970s and 1980s failed

to establish the likelihood of his torture upon re-entry).


        1
            Additionally, the IJ ruled that Duru’s asylum application was untimely.
                                            3
PETITION FOR REVIEW DENIED.




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