Osagie Ighodaro v. Eric Holder, Jr, U S Attorney , 354 F. App'x 152 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    November 17, 2009
    No. 09-60203                      Charles R. Fulbruge III
    Summary Calendar                            Clerk
    OSAGIE IGHODARO,
    Petitioner,
    v.
    ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
    Respondent.
    Petition for Review of an Order
    of the Board of Immigration Appeals
    BIA No. A088 788 351
    Before GARZA, CLEMENT, and OWEN, Circuit Judges.
    PER CURIAM:*
    Osagie Ighodaro seeks review of an order of the Board of Immigration
    Appeals (BIA) denying his application for asylum, withholding of removal, and
    protection under the Convention Against Torture (CAT). We deny the petition.
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    No. 09-60203
    I
    Ighodaro is a citizen of Nigeria. He arrived in the United States in 2007
    without possessing any valid entry documents. The Department of Homeland
    Security (DHS) conducted a credible-fear interview, in which Ighodaro claimed
    that he was fleeing death threats from a “secret occultic society” called the Okija
    Shrine group. The DHS concluded that Ighodaro had established a credible fear
    of persecution. The DHS then issued a Notice to Appear (NTA), asserting that
    Ighodaro was removable under Immigration and Nationality Act (INA) section
    212(a)(7)(A)(i)(I). Ighodaro conceded removability and submitted an application
    for asylum, withholding of removal, and protection under the CAT. In his
    application, Ighodaro claimed that he had gone to Anambra, Nigeria to organize
    a Christian “crusade.” A group of people identifying themselves as members of
    the Okija Shrine group attacked and beat him. He was later beaten again by
    Okija Shrine members and his cousin was killed. Ighodaro claimed that the
    group continued to threaten him when he moved to other cities in Nigeria. He
    left the country and, after stays in Guatemala and Mexico, came to the United
    States. After a trial, the Immigration Judge (IJ) denied Ighodaro’s claims for
    relief from removal. Ighodaro appealed the IJ’s decision to the BIA, which
    affirmed the IJ’s judgment. This appeal followed.
    II
    We review the BIA’s factual findings to determine if they are supported by
    substantial evidence.1 “Under the substantial evidence standard, reversal is
    improper unless we decide not only that the evidence supports a contrary
    1
    Rojas v. INS, 
    937 F.2d 186
    , 189 (5th Cir. 1991).
    2
    No. 09-60203
    conclusion, but also that the evidence compels it.” 2 We review the BIA’s legal
    conclusions de novo.3
    III
    On appeal, Ighodaro asserts that the BIA erred in denying his applications
    for asylum, withholding of removal, and protection under the CAT. Under INA
    section 208(b)(1), the Attorney General has discretion to grant asylum to a
    “refugee.” 4 A refugee is defined as an alien who is unable or unwilling to return
    to his country “because of persecution or a well-founded fear of persecution on
    account of race, religion, nationality, membership in a particular social group,
    or political opinion.” 5 Past persecution is “harm inflicted on the alien on account
    of a statutorily enumerated ground by the government or forces that a
    government is unable or unwilling to control.” 6                A well-founded fear of
    persecution, the other ground for relief, “results when a reasonable person in the
    same circumstances would fear persecution if deported.” 7 An applicant does not
    have a well-founded fear of persecution if he could avoid persecution by
    relocating to another part of his country.8 The petitioner bears the burden of
    proving that internal relocation was unreasonable, unless he demonstrates that
    2
    Chen v. Gonzales, 
    470 F.3d 1131
    , 1134 (5th Cir. 2006) (internal quotation marks
    omitted).
    3
    Zhu v. Gonzales, 
    493 F.3d 588
    , 594 (5th Cir. 2007).
    4
    
    8 U.S.C. § 1158
    (b)(1).
    5
    
    8 U.S.C. § 1101
    (a)(42)(A).
    6
    Tesfamichael v. Gonzales, 
    469 F.3d 109
    , 113 (5th Cir. 2006).
    7
    
    Id.
    8
    
    8 C.F.R. § 208.13
    (b)(1)(i)(B).
    3
    No. 09-60203
    the national government is the persecutor.9 We have defined persecution as
    “[t]he infliction or suffering of harm, under government sanction, upon persons
    who differ in a way regarded as offensive (e.g., race, religion, political opinion,
    etc.), in a manner condemned by civilized governments.”10
    The BIA found that Ighodaro failed to demonstrate that the government
    of Nigeria was unwilling or unable to protect him from harm. This finding is
    supported by substantial evidence. As the BIA noted, the record shows that the
    Nigerian police responded quickly and thoroughly to the previous attacks of
    Okija Shrine members. Ighodaro’s contention that the Okija Shrine group
    “control[s] and run[s] the government” is not supported by the evidence.
    The BIA also found that Ighodaro failed to show that internal relocation
    alternatives were unreasonable. Substantial evidence supports this conclusion.
    The record demonstrates that there are large regions of Nigeria that are
    predominately Christian and that people subject to violence in one area often
    relocate to communities where their ethnic group is in the majority. While
    Ighodaro claims the Okija Shrine group operates throughout the country and
    that “it is not possible to avoid them,” the record tends to establish that the
    group is confined to portions of only two states.                 Thus, Ighodaro has not
    established that internal relocation alternatives were unreasonable.
    Because Ighodaro has not satisfied the asylum standard, he cannot meet
    the more stringent standard for withholding of removal.11
    9
    
    Id.
     § 208.13(b)(1)(ii).
    10
    Chen v. Gonzales, 
    470 F.3d 1131
    , 1135 (5th Cir. 2006) (internal quotation marks
    omitted).
    11
    See Eduard v. Ashcroft, 
    379 F.3d 182
    , 186 n.2 (5th Cir. 2004).
    4
    No. 09-60203
    To establish eligibility for relief under the CAT, an applicant must
    demonstrate that “it is more likely than not that he or she would be tortured if
    removed to the proposed country of removal.” 12 Torture is defined as
    any act by which severe pain or suffering, whether
    physical or mental, is intentionally inflicted on a person
    for such purposes as obtaining from him or her or a
    third person information or a confession, punishing him
    or her for an act he or she or a third person has
    committed or is suspected of having committed, or
    intimidating or coercing him or her or a third person, or
    for any reason based on discrimination of any kind,
    when such pain or suffering is inflicted by or at the
    instigation of or with the consent or acquiescence of a
    public official or other person acting in an official
    capacity.13
    The BIA found that Ighodaro failed to demonstrate that he would more
    likely than not be tortured in Nigeria by, at the instigation of, or with the
    consent or acquiescence of Nigerian government officials acting in an official
    capacity. This conclusion is supported by substantial evidence. As mentioned
    above, the Nigerian police immediately responded to and investigated the
    previous incidents of violence. Furthermore, the record establishes that the
    government actively prosecuted the Okija Shrine group for crimes it committed.
    Therefore, the BIA did not err when it denied Ighodaro’s claim under the CAT.
    *        *         *
    Therefore, for the reasons discussed above, we DENY Ighodaro’s petition
    for review; we also DENY his motion for appointment of counsel.
    12
    
    8 C.F.R. § 208.16
    (c)(2).
    13
    
    8 C.F.R. § 208.18
    (a)(1).
    5