                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-15-2003

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Precedential or Non-Precedential: Precedential

Docket No. 02-2435P




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                               PRECEDENTIAL

                                        Filed August 15, 2003

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 02-2435


                  JOSEPH AWOLESI and
                  EBENEZER AWOLESI,
                               Petitioners
                              v.
         JOHN ASHCROFT, Attorney General of
                 the United States,
                               Respondent

          On Petition for Review of an Order of
             the Board of Immigration Appeals
          (INS Nos. A73-034-576, A73-034-577)

                 Argued January 21, 2003
     Before: BECKER, Chief Judge,* NYGAARD and
                AMBRO, Circuit Judges.

                  (Filed: August 15, 2003)
                      JEFFREY A. HELLER (ARGUED)
                      8 Hampton Street
                      Cranford, NJ 07016
                      Counsel for Petitioners




* Judge Becker completed his term as Chief Judge on May 4, 2003.
                              2


                      ROBERT D. MCCALLUM, JR.
                      Assistant Attorney General,
                       Civil Division
                      CARL H. MCINTYRE, JR.
                      Senior Litigation Counsel
                      DAVID E. DAUENHEIMER
                       (ARGUED)
                      Office of Immigration Litigation
                      U.S. Department of Justice,
                       Civil Division
                      P.O. Box 878, Ben Franklin Station
                      Washington, D.C. 20044
                      Counsel for Respondent


                 OPINION OF THE COURT

BECKER, Circuit Judge.
   This is a petition for review of an extremely terse (four
sentence) order by the Board of Immigration Appeals
(“BIA”), reversing the decision of the Immigration Judge
(“IJ”) granting the applications for asylum of petitioners,
Joseph Awolesi (“Awolesi”), and his son Ebenezer (whose
claim is derivative of Joseph’s). Awolesi testified before the
IJ that his brother, Matthew Awolesi (“Matthew”), a member
of the pro-democracy party in Nigeria and an elected
member of the local community council, was the target of
ambush and assassination attempts by the security forces
of the ruling party in Nigeria and is now in hiding. Awolesi,
who used the proceeds from his successful pharmaceutical
company in Nigeria to fund Matthew’s political career,
argues that if returned to Nigeria, he would be persecuted
by the government, which believes that he is a member of
the pro-democracy party (based on Matthew’s association
with the party). On the basis of the evidence supporting
these claims, the IJ concluded that Awolesi and Ebenezer
had shown a well-founded fear of persecution on account of
imputed political opinion.
 While we give deference to the decisions of the BIA, and
must affirm its findings unless the evidence “compels” a
                                   3


contrary conclusion, we cannot give meaningful review to a
decision in which the BIA does not explain how it came to
its conclusion. This is not a case in which the BIA affirmed
the decision of the IJ without explanation, in which case we
might scour the record for supporting evidence. Here,
instead, the BIA reversed the decision of the IJ, with only
the opaque explanation that “the evidence is insufficient”
and “the arguments made by the [INS] on appeal . . . are
persua[sive].” As a result, we cannot tell whether the BIA
was making a legal decision that Awolesi was statutorily
ineligible for asylum or whether it found Awolesi’s story
incredible. In these circumstances, we conclude that we
cannot perform meaningful review of the BIA’s order, hence
we will vacate the order of deportation and remand for
further consideration.1

                                   I.
  Awolesi and Ebenezer are citizens and natives of Nigeria.2
They arrived in the United States in February of 1993
carrying valid “visitor for pleasure” visas which authorized
them to remain until August of 1993. In October of 1993,
Awolesi applied for asylum and withholding of deportation.
In the original application, Awolesi claimed that he was
subject to persecution by the Muslim fundamentalist police
on account of his Christian religion. Awolesi’s application
for asylum was denied by the INS and he and Ebenezer

1. We note that the recently enacted Streamlining Regulations, 8 C.F.R.
§ 3.1(a)(7), which allow the BIA to affirm summarily the decision of the
IJ without adopting its reasoning, are not applicable to this case.
2. We will use the singular, Awolesi, to refer to the claims of both
petitioners since Ebenezer’s claims are essentially derivative of his
father’s. Awolesi fears that the Nigerian government may kidnap
Ebenezer as a means of coercion. This concern is supported by a 1996
State Department Report which states that “[t]he [Nigerian] regime
repeatedly engaged in arbitrary arrest and detention. . . . Police also
commonly place relatives and friends of wanted suspects in detention
without criminal charge in an effort to induce suspects to surrender to
arrest.” Awolesi’s original application for asylum included Ebenezer; in
November of 1996, Ebenezer filed a separate application after turning 21
years old.
                                   4


were issued orders to show cause charging them as
deportable for having overstayed their visitor visas.
   Awolesi appeared before the IJ and claimed that he would
be persecuted if returned to Nigeria because the
government believed that he was a member of the pro-
democracy party. Awolesi asserted that he was the owner of
a successful pharmaceutical company in Nigeria and that
the business had made approximately $90,000 a year from
1988 to 1991 and approximately $60,000 a year after that.
Awolesi claimed that he used some of the proceeds from
that business to support his brother Matthew’s political
career. Awolesi claims that Matthew had paid to send
Awolesi to college to get a bachelor’s degree and Awolesi
wanted to return the favor. Awolesi represented that
Matthew worked for the Nigerian government until 1984,
when he was fired from his position for making outspoken
political statements about the military regime that ran the
country. Awolesi contends that Matthew was a member of
the Social Democratic Party, a pro-democracy party in
Nigeria, and, with Awolesi’s financial backing, was elected
to the position of “chair person” of one of the local
community councils, governing an area with a population of
approximately 200,000 people. Awolesi stated that he also
joined the Social Democratic Party, but that he was not as
politically active as his brother.
   Awolesi claims that his brother, because of his political
activity, became a target of the ruling party of Nigeria. He
maintains that Matthew was ambushed in his home in
1991. Later, in 1992, Awolesi asserts, shots were fired at
Matthew’s official car and one of his aides was seriously
injured.3 Awolesi contends that Matthew subsequently went
into hiding for fear of persecution by the Nigerian
government. Awolesi also represents that he was threatened
by members of the military and that he was told by a
“friendly government agent” that the military regime had
discussed killing him.

3. Awolesi provided a copy of an article from a local newspaper
documenting this incident. As the INS notes, however, this article
suggests that the attack was not politically motivated but was rather an
attempt to steal the vehicle.
                                    5


   Awolesi states that he fled the country in 1993 because
he was worried about the outcome of the upcoming
elections: he feared that the government would lash out
against individuals that were believed to support the pro-
democracy party.4 Awolesi took his then teenage son
Ebenezer with him, but left behind his wife and other
children (none of whom have been harmed in his absence).
Awolesi believes that he may be on a government “black
list” and would be arrested and tortured or killed if he is
returned to Nigeria.
  The IJ conducted a full hearing on the merits, at the end
of which he granted asylum to Awolesi and his son based
on a showing of a well-founded fear of persecution on
account of imputed political opinion.5 In support of the
grant of asylum, the IJ reasoned as follows:
     The current report on human rights practices relating
     to Nigeria clearly indicates that there are substantial
     problems that exist in Nigeria at the present time of a
     political nature. In the submissions made by the
     Respondent, he has clearly presented documentation to
     show that his brother was an individual who was
     politically involved in his country, and clearly that his
     brother could have been and might have been a target
     of political activist[s] who are against his political
     opinions in his country. It is also clear, that often in
     countries like Nigeria, one of the means of attacking
     the political leaders is to attack certain members of
     their families, and clearly, financial supporters of such
     political leaders, especially if they are family members,
     would be persons who could be subject to political and
     physical harm.
     One of the points raised by the Government Trial
     Attorney is important to consider in this case, and that
     is, the rest of the Respondent’s family and the person
     who he refers to as his brother, who is a political
     activist, all are still in Nigeria and apparently no harm

4. The pro-democracy forces won the 1993 election, but a coup d’etat
followed, returning to power the individuals who had lost the election.
5. The IJ rejected the claim of religious persecution.
                                    6


     has come to them. In regard to the brother, there can
     be possibly a number of explanation[s] as to that. One,
     that in hiding he has been successful in eluding the
     government authorities. A second possibility is that
     even if he has been unsuccessful and the authorities
     do know where he is . . . it may very well be that
     because his brother is a prominent individual, that the
     authorities chose not to do anything to his brother
     until such time that they believe his brother may pose
     an immediate threat to them. On the other hand, what
     about individuals who occupy less important positions
     in Nigerian society, such as a brother like the
     Respondent, who is not politically active. The action by
     the government against such individuals would be little
     moment to the general population. . . . any harm to
     such persons would cause minimal disruption in the
     society.
     . . .
     In looking at the Country Reports on Human Rights
     Practices relating to Nigeria [for 1997], it is important
     to note that even the State Department recognizes the
     difficulties existing in Nigeria at this time. . . . “that the
     government continued to enforce its arbitrary authority
     throughout the federal security system. The military,
     the security forces services and the national police
     have through decree, decreed blocking action by the
     opposition in the court. All branches of these security
     forces committed serious human rights abuses.”
  The INS appealed the decision of the IJ to the BIA.6 The

6. Awolesi contends that the BIA violated its own regulations by
accepting the INS’s appeal. While the INS submitted its brief to the BIA
by the required date, February 2, 1998, it did not serve Awolesi’s counsel
with a copy of the brief by this date (Awolesi provides a copy of the
postmark which indicates that service was untimely). The INS
nonetheless attested to the BIA that it had served opposing counsel by
February 2, as the BIA requires that briefs be filed with proof of service
on the other party. Awolesi contends that this amounted to fraud on the
part of the INS and that the BIA should not have accepted the appeal
because it was improperly filed. The INS responds that the BIA has
discretion to accept such appeals and that while this discretion is limited
                                    7


BIA reversed the decision of the IJ, with the following terse
explanation:
     The appeal is sustained. We have considered the
     arguments made by the [INS] on appeal and are
     persuaded. The evidence is insufficient to show that
     the respondents were persecuted on account of an
     imputed political opinion or that they would now face
     persecution    because    of   a   protected  ground.
     Accordingly, the appeal is sustained.
  We have jurisdiction pursuant to former INA § 106, 8
U.S.C. § 1105(a). We review factual determinations of the
BIA under the substantial evidence standard. See Abdille v.
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (“Under the
substantial evidence standard, the BIA’s finding must be
upheld unless the evidence not only supports a contrary
conclusion, but compels it.”). We review the decision of the
BIA, not that of the IJ. See Abdulai v. Ashcroft, 239 F.3d
542, 549 (3d Cir. 2001).

                                    II.
  Awolesi contends that we should vacate the BIA’s
decision because its four-sentence order “is so conclusory
and deficient that it leaves nothing for this court to review.”7
Awolesi finds support for this argument in our opinion in

by due process considerations, they are pertinent only if the applicant
has shown that he was prejudiced, which Awolesi has not. We agree.
While it does not affect the outcome, it appears that the INS acted in an
unprofessional manner by making a false representation that it had
served a copy of the brief on a certain day, and we reprove it for doing
so. That said, the BIA did not err by accepting the brief because the
BIA’s own rules give it discretion to accept such briefs. At all events, it
does not appear that Awolesi has alleged that the BIA’s acceptance of the
brief amounted to a due process violation since he has not demonstrated
that he was prejudiced by the misrepresentation.
7. Awolesi also asserts that the BIA violated his due process rights with
its terse opinion. However, “the question for due process purposes . . .
is simply whether the Board made an individualized determination.”
Abdulai, 239 F.3d at 550. We are satisfied that the BIA considered
Awolesi’s individual case.
                             8


Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir. 2001). Abdulai
involved a decision by the BIA, affirming the IJ, which had
denied the applicant’s application for asylum and
withholding of deportation. The BIA’s decision contained
only the following analysis:
    We acknowledge that the respondent has submitted
    numerous articles and reports regarding general
    country conditions in Nigeria. However, we note the
    conspicuous     lack  of     documentary   evidence
    corroborating the specifics of the respondent’s
    testimony.
Id. at 547.
 We concluded that the BIA had not sufficiently explained
why it affirmed the decision of the IJ, noting:
    What the BIA never explains, however, is what
    particular aspects of Abdulai’s [the applicant’s]
    testimony it would have been reasonable to expect him
    to have corroborated. Without knowing that, it is
    impossible for us to review: (1) whether it was
    reasonable to expect Abdulai to corroborate such
    information; (2) whether Abdulai provided the requisite
    corroboration; or (3) whether Abdulai adequately
    explained his inability to do so.
Id. at 554 (emphasis in original).
  Earlier, in Sotto v. INS, 748 F.2d 832, 836 (3d Cir. 1984),
we determined that we could not give meaningful review to
the decision of the BIA affirming the IJ where the BIA did
not explain why it discredited the sworn affidavit of the
applicant, noting only that he had “not submitted
substantial, probative evidence to corroborate his fear.” We
wrote:
    We recognize that there is a possibility that the [IJ] or
    the Board choose to discredit the [applicant’s] affidavit
    for reasons that are within their expertise. However, if
    they do not articulate such reasons, we are unable to
    discharge our statutory obligation of review. To
    determine whether the administrative action was
    arbitrary, the courts must be apprised why evidence,
    relevant and persuasive on its face, was discredited.
                              9


    We must also review the decisions of administrative
    agencies to ascertain whether the proceedings were
    conducted with regularity, including whether the
    agency considered the relevant evidence.
Id. at 837. See also Tipu v. INS, 20 F.3d 580, 586 (3d Cir.
1994) (“[T]he Board failed to consider one of the factors in
Tipu’s favor, a practice which in Sotto v. INS resulted in a
remand for reconsideration.”); Bastidas v. INS, 609 F.2d
101, 105 (3d Cir. 1979) (holding that the decision of the
BIA “will not be affirmed by this court unless the reasons
for such a finding are made clear”).
  Likewise, in the case at bar, we are given no indication
why the BIA denied Awolesi’s petition and we cannot
determine whether it acted arbitrarily. Indeed, in Abdulai
and Sotto, the BIA at least stated that it discredited the
applicants’ accounts without explaining why or what
aspects of the accounts it found unbelievable. Here, the BIA
has not even told us that it discredited Awolesi’s testimony;
we do not know whether the BIA was making a legal
determination that Awolesi could not qualify under the
statute, even assuming his story was true, or whether it
found that Awolesi’s testimony was inconsistent. We do not
know what is meant by the BIA’s statement that “[t]he
evidence is insufficient to show that the respondents were
persecuted on account of an imputed political opinion.”
This could indicate that the evidence was legally insufficient
or that the BIA found Awolesi’s testimony incredible.
  In order for us to be able to give meaningful review to the
BIA’s decision, we must have some insight into its
reasoning. For example, the BIA might explain that it did
not believe Awolesi would be tortured or killed if returned
to Nigeria because his wife and other children have not
been harmed in his absence. Or that it did not find
Awolesi’s account credible because his initial application for
asylum listed only his claim that he feared persecution if
returned to Nigeria on account of his religion. The BIA
would then have to explain why it found the IJ’s reliance on
the Country Reports and the news article documenting the
attack on Matthew Awolesi’s car unpersuasive. The BIA’s
decision may have been supported by substantial evidence,
and there may not be evidence to compel the opposite
                                 10


conclusion. However, we simply do not know what evidence
the BIA used to come to its decision.
   Most importantly, we are particularly concerned about
being able to give meaningful review to the BIA’s decision
where the BIA reverses the IJ without explanation. Abdulai
and Sotto involved decisions by the BIA affirming the IJ
without explaining why the applicants’ accounts were
unbelievable or what corroborative evidence they could
have offered. This Court, sitting in banc, has before it (sub
judice) the case of Dia v. Ashcroft, No. 02-2460 (3d Cir.
argued in banc May 28, 2003), in which the issue is
whether     the     recently    promulgated       Streamlining
Regulations, 8 C.F.R. § 3.1(a)(7), allowing a single member
of the BIA to affirm the result of the IJ’s decision and order
without adopting its reasoning, violate fundamental
principles of administrative law or due process. If we
uphold the Streamlining Regulations, BIA decisions like
those at issue in Abdulai and Sotto would likely be affirmed
so long as the BIA acted pursuant to the Streamlining
Regulations.8 However, the Attorney General has explained
that the Streamlining Regulations do not apply to summary
reversals by the BIA, noting, “A reversal or remand will
necessarily require some explanation, while an affirmance
without opinion leaves the decision below as the final
agency decision.” Executive Office for Immigration Review;
Board of Immigration Appeals: Streamlining, 64 Fed. Reg.
56,135, 56,140 (October 18, 1999) (to be codified at 8
C.F.R. pt. 3). Thus, our holdings in Abdulai and Sotto (as
well as a number of other opinions applying those
opinions), that the BIA must explain why it reversed the
decision of the IJ, will continue to be good law in cases
occurring after the promulgation of the Streamlining
Regulations, regardless of our decision in Dia.

                                III.
  For the foregoing reasons, we will grant the petition for
review, set aside the BIA’s final decision and order of

8. The Streamlining Regulations were promulgated on October 18, 1999.
                                  11


deportation, and remand for                further     consideration,
consistent with this opinion.9

A True Copy:
        Teste:

                       Clerk of the United States Court of Appeals
                                   for the Third Circuit




9. Awolesi contends that the facts are so convincing that we should
reverse outright the decision of the BIA and grant his petition for
asylum. However, the Supreme Court held in INS v. Ventura, 537 U.S. 12
(2002), that courts of appeals cannot decide de novo issues that the BIA
failed to consider.
