                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3101




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                Nos. 07-3101 & 07-3244


                            OLADIMEJI OLATUNJI ALLI,
                                            Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                                       Respondent


                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A47 119 908)
                    Immigration Judge: Honorable Walter A. Durling


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 4, 2008

             Before: BARRY, SMITH AND HARDIMAN, Circuit Judges

                               (Opinion filed June 5, 2008)


                                        OPINION


PER CURIAM

      Oladimeji Alatunji Alli1 seeks review of an order of the Board of Immigration



      1
         The record contains alternative spellings of the petitioner’s name. We will use
the spelling used in the petitioner’s brief.
Appeals (“BIA”) sustaining the government’s appeal of an Immigration Judge’s (“IJ”)

decision granting Alli’s application for protection under the Convention Against Torture

(“CAT”). We will deny the petition for review in part and dismiss it in part for lack of

jurisdiction.

       Alli is a native and citizen of Nigeria. In November 1999, he was admitted into

the United States as a permanent resident. In April 2005, he was convicted of

embezzlement of mail by a United States postal service employee and was sentenced to

twenty-one months of imprisonment. In 2006, he was placed in removal proceedings for

having committed a crime involving moral turpitude.2 Alli applied for CAT relief based

on his fear of being detained and tortured by Nigerian authorities upon his return to the

country as a criminal deportee. The IJ held an evidentiary hearing on March 12, 2007.

Alli testified that he worked for port authorities in shipping and receiving when he was in

Nigeria, and during his employment, he saw deportees returned to Nigeria and taken to

prison. Alli also stated that his wife’s brother was jailed and beaten, apparently for

political reasons, but he had no other knowledge of how people are treated while in

detention in Nigeria. Alli submitted various supporting materials into evidence.

       The IJ granted Alli CAT relief, finding sufficient evidence in the record that it was

more likely than not that Alli will be detained and tortured upon returning to Nigeria.

Specifically, the IJ found that a provision of Nigerian law known as Decree 13 would be


       2
        Initially, Alli had been charged with removability because his conviction also
included an aggravated felony, but the IJ dismissed the aggravated felony charge.

                                              2
applied to Alli as a wanted criminal, as Decree 13 criminalizes fraud crimes committed

outside Nigeria and allows for prosecution under Nigerian law. The IJ found that Alli

would probably be detained by virtue of the existence and presumed enforcement of

Decree 13. Moreover, the IJ found a sufficient likelihood that Alli would be tortured

during detention given the evidence of a high incidence of severe torture inflicted on

detainees by Nigerian government authorities. On June 28, 2007, the Board of

Immigration Appeals (“BIA”) sustained the government’s appeal and reversed the IJ’s

finding that Alli is eligible for CAT relief, noting, among other things, the absence of

evidence that Decree 13 is enforced against criminal deportees. Thus the BIA found that

the record lacked evidence that it is more likely than not that Alli will be detained for

prosecution. As such, in light of the failure to show a clear probability that he will be

detained, the BIA concluded that Alli failed to show a clear probability of torture incident

to detention. The BIA ordered Alli removed to Nigeria. This petition for review

followed.3

           As the government notes in its brief, we generally lack jurisdiction to review final

orders of removal against criminal aliens, like Alli, who were convicted of a crime

involving moral turpitude. See 8 U.S.C. § 1252(a)(2)(C). However, we may review

“constitutional claims or questions of law” raised in a petition for review. See 8 U.S.C.

§ 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir. 2005). Thus, we


       3
        Alli filed two timely petitions for review, the first pro se and the second by
counsel. The matters have been consolidated in this Court for all purposes.

                                                3
may consider whether the BIA violated a rule of law or a provision of the United States

Constitution. See Chen v. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006) (holding

that a petition raises a question of law when it alleges a “fact-finding which is flawed by

an error of law” or an “abuse of discretion” that is “based on a legally erroneous

standard”).

       Here, Alli argues that the BIA violated his due process rights to a meaningful

review of the IJ’s decision, because its decision failed to state the standard of review it

employed and failed to comment on the facts found by the IJ. Alli cites no authority for

this argument. Moreover, even assuming such a due process right exists, aside from

disputing the conclusion reached by the BIA, Alli does not allege how his right to a full

and fair hearing was prejudiced. See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir. 2006)

(a showing of substantial prejudice is needed for an alien to prevail on a procedural due

process claim). We find no merit to this argument.

       Alli further argues that the BIA improperly engaged in its own fact-finding instead

of reviewing the IJ’s factual findings under a “clearly erroneous” standard. See 8 C.F.R.

§§ 1003.1(d)(3)(i) and (iv). To exemplify this contention, Alli lists certain facts found by

the IJ and that are present in the record, including the existence of a Nigerian enforcement

body to prosecute Decree 13 crimes and the authorities’ known use of torture to secure

confessions and convictions. Alli asserts that these facts are not subject to change by the

BIA absent clear error. However, from those and other facts, the IJ made a judgment that

Alli met his burden of proof for his CAT claim. Given the IJ’s statement in its decision

                                              4
that the record contained no direct evidence that Nigerian criminal laws would necessarily

lead to a returnee’s being detained upon arrival (see A.R. 28), the BIA appropriately

reviewed the IJ’s conclusion that the evidence was sufficient for Alli to have met his

burden of proof for his CAT claim. See 8 C.F.R. § 1003.1(d)(3)(ii) (stating that the

“Board may review questions of law, discretion, and judgment and all other issues in

appeals from decisions of [IJs] de novo.”). The BIA noted the absence of evidence in the

record regarding how frequently Nigerian officials prosecute criminal returnees, or

whether the authorities would apply Decree 13 to criminal returnees, even if empowered

under law to do so. Ultimately, the BIA concluded that the record lacked any evidence to

show that it is more likely than not that Alli would be detained under Decree 13, and we

discern no inappropriate fact-finding by the BIA in reviewing the IJ’s decision. To the

extent that Alli argues that the BIA’s reversal of the IJ’s finding of CAT relief eligibility

is not supported by substantial evidence, as noted earlier, this issue is outside our

jurisdiction and will be dismissed.

        For the foregoing reasons, we will deny the petition for review in part and dismiss

it in part.




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