Efe Franklyn Edeki v. Attorney General United States , 658 F. App'x 643 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-2481
____________
EFE FRANKLYN EDEKI,
Petitioner
v.
THE ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A206-414-557)
Immigration Judge: Mirlande Tadal
____________
Argued June 22, 2016
Before: MCKEE, Chief Judge, FISHER and GREENAWAY, JR., Circuit Judges.
(Filed: August 23, 2016)
Joshua E. Bardavid [ARGUED]
Suite 1501, 277 Broadway
New York, NY 10007
Theodore N. Cox
Suite 201, 325 Broadway
New York, NY 10007
Counsel for Petitioner
Thomas W. Hussey
Neelam Ihsanullah
Loretta Lynch
Liza S. Murcia [ARGUED]
Anthony C. Payne
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
____________
OPINION*
____________
FISHER, Circuit Judge.
Efe Franklyn Edeki fled Nigeria to the United States where he was detained by
immigration authorities. He sought relief in three forms: asylum, withholding of removal,
and protection under the Convention Against Torture. The Immigration Judge denied his
applications for relief, and the Board of Immigration Appeals (BIA) affirmed. Edeki now
seeks review of the BIA’s order. We will deny the petition.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts that are necessary
to our analysis.
Efe Franklyn Edeki is a native of Nigeria. He was born in Ugelli, Delta State, but
he was raised by his aunt in Edo State. Edeki’s father lived in Delta State—about three
hours away—and Edeki would occasionally visit him there. In September 2013, Edeki’s
father was violently murdered at his home by members of the Neo Black Movement of
Africa (or “Black Axe”). Edeki’s father had been the chief priest of Black Axe but
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
2
renounced his membership when he converted to Christianity. Edeki’s sister, who was at
their father’s house at the time of his death, was raped and beaten by members of Black
Axe and later died of her injuries.
When Edeki learned of his father’s death, he traveled with his aunt to Delta State.
They contacted the police about the attacks, but the officer assigned to their case solicited
bribes from them and then refused to investigate without payment. A week later, a funeral
was held for Edeki’s father. Members of Black Axe attended and were accompanied by
policemen. Black Axe members summoned Edeki to the room where his father’s body
was kept. There the members performed rituals over the body—they sprinkled powder
over it, recited incantations, and mutilated the body’s genitals. Then the body was buried.
Later that day, a member of Black Axe approached Edeki and demanded that he
join the group. Edeki refused on religious grounds, and the Black Axe member walked
away angry. Three days later, Black Axe kidnapped Edeki as he was leaving church: they
beat him, taped his mouth shut, and drove him in the trunk of a car to a Black Axe shrine.
They removed Edeki’s shirt and pointed to a mark on his chest, saying that the mark
signified Edeki’s pre-initiation into Black Axe. They told him that, because his father had
been the chief priest of the cult, Edeki needed to join and assume that role.
Under the threat of castration and death, Edeki agreed to join Black Axe. For the
next three days, Black Axe members held him captive and forced him to engage in
various rituals such as blood oaths, beatings with a horsewhip, daily repetition of creeds,
and animal sacrifices. Edeki was told that if he broke any of the rules of Black Axe he
3
would be castrated or killed. At the end of the three-day ceremony, Black Axe put Edeki
back into the trunk of a car and dropped him off near his father’s house.
Edeki fled Delta State to his aunt’s house in Edo State. He did not report any of
these events to the police. Edeki says he kept quiet because of threats by Black Axe and
because he believed the police were heavily associated with the cult. Shortly after
arriving in Edo State, Edeki found a note on his car that said Black Axe was watching
him. When Black Axe also threatened his aunt and her family, she asked Edeki to leave.
After Edeki left his aunt’s house, his friends and family all turned him away in fear for
their lives.
With nowhere else to go, Edeki fled Nigeria. He arrived in the United States in
June 2014 and was detained by immigration authorities. An immigration officer
determined that Edeki had a credible fear of persecution and arranged for further
proceedings. The Department of Homeland Security served a Notice to Appear on Edeki,
charging that he was subject to removal. Edeki appeared at a hearing in September before
an Immigration Judge and sought relief in the form of asylum, withholding of removal,
and protection under the Convention Against Torture.
The Immigration Judge denied Edeki’s applications for relief, finding that he
(Edeki) had not demonstrated that he had suffered past persecution on account of his
membership in a particular social group.1 In particular, the Immigration Judge concluded
1
Edeki’s proposed social group was “individuals who have significant kinship ties to
[Black Axe], but who consciously refuse to be in this cult.” App. 15.
4
that Edeki had failed to show that his purported group was “socially distinct”—i.e., even
though Edeki demonstrated that Black Axe exists in Nigeria, he did not show that those
with kinship ties to Black Axe but who consciously refuse to be part of the group are seen
as a socially distinct group. The Immigration Judge also found that Edeki had failed to
show that the Nigerian government is unwilling or unable to control the alleged
persecutors. Finally, the Immigration Judge found that Edeki had failed to demonstrate
eligibility for protection under the Convention Against Torture because he did not
demonstrate a clear likelihood that members of Black Axe would torture him upon his
return or that such torture would be done with the acquiescence of the government. In
January 2015, the Immigration Judge ordered Edeki’s removal to Nigeria.
Edeki appealed the Immigration Judge’s decision to the BIA. The BIA concluded
that Edeki had not established that his proposed social group was regarded as a
distinguishable group within Nigeria. The BIA also found that Edeki had not
demonstrated a nexus between a protected ground and the reason for past harm. Thus,
Edeki failed to establish past persecution and was not entitled to a presumption of a well-
founded fear of future persecution. Moreover, Edeki did not, according to the BIA,
independently establish a well-founded fear of future persecution on account of a
protected ground. Accordingly, Edeki failed to meet his burden of proof for asylum relief
and (necessarily) failed to meet the higher burden required for withholding of removal.
Finally, the BIA found that the Immigration Judge did not err in finding insufficient
evidence to establish that Edeki faces a probability of torture with the consent or
5
acquiescence of the Nigerian government so as to qualify for protection under the
Convention Against Torture. Thereafter Edeki filed this petition for review.
II.2
We review the BIA’s legal conclusions de novo, giving deference under Chevron
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the BIA’s
“interpretation of statutes and regulations within its enforcement jurisdiction.”3 We
affirm any findings of fact supported by substantial evidence and are bound by the
administrative findings of fact “unless a reasonable adjudicator would be compelled to
arrive at a contrary conclusion.”4
A.
Under the Immigration and Nationality Act, the Attorney General may grant
asylum to any alien who demonstrates that he meets the definition of a “refugee.”5 To
establish that he is a refugee, an alien must demonstrate either proof of past persecution
or a well-founded fear of future persecution in his home country “on account of race,
religion, nationality, membership in a particular social group, or political opinion.”6
Persecution must be on the grounds of one of those five protected characteristics.
Furthermore, “the acts must be committed by the government or forces the government is
2
The Immigration Judge had jurisdiction over the proceedings pursuant to 8 C.F.R.
§ 1208.2(b). The BIA had jurisdiction over Edeki’s appeal pursuant to 8 C.F.R.
§§ 1003.1 and 1003.2. This Court’s jurisdiction arises under 8 U.S.C. § 1252.
3
Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010).
4
Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009) (quoting Yan Lan Wu v.
Ashcroft, 393 F.3d 418, 421 (3d Cir. 2005)).
5
8 U.S.C. § 1158(b)(1)(A).
6
8 U.S.C. § 1101(a)(42).
6
either unable or unwilling to control.”7 A more stringent standard applies to applications
for withholding of removal: “an alien ‘must establish a clear probability . . . that it is
more likely than not that his life or freedom would be threatened if returned to his
country’ because of his protected class.”8
Edeki attempted to show that he had suffered past persecution based on his
membership in a particular social group, which he defined as “individuals who have
significant kinship ties to the [Black Axe], but who consciously refuse to be in this cult.”
The statutory term “particular social group” is ambiguous9 and accordingly
entitled to Chevron deference.10 In Matter of Acosta, 11 the BIA interpreted the phrase
“‘persecution on account of membership in a particular social group’ to mean persecution
that is directed toward an individual who is a member of a group of persons all of whom
share a common, immutable characteristic.” We concluded that the BIA’s interpretation
of “particular social group” in Acosta was a permissible construction and thus adopted
it.12 A few decades later, however, the BIA supplemented the test for membership in a
particular social group by adding the requirement of “social visibility.”13
7
Garcia v. Att’y Gen., 665 F.3d 496, 505 (3d Cir. 2011) (quoting Sukwanputra v.
Gonzales, 434 F.3d 627, 637 (3d Cir. 2006)).
8
Sesay v. Att’y Gen., 787 F.3d 215, 219 (3d Cir. 2015) (alterations omitted) (quoting
Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008)).
9
Fatin v. INS, 12 F.3d 1233, 1238–39 (3d Cir. 1993).
10
Negusie v. Holder, 555 U.S. 511, 516 (2009).
11
19 I. & N. Dec. 211, 233 (B.I.A. 1985).
12
Fatin, 12 F.3d at 1240.
13
See, e.g., Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (B.I.A. 2008) (explaining that
“membership in a purported social group requires that the group have particular and
well-defined boundaries, and that it possess a recognized level of social visibility”); In
7
In Valdiviezo-Galdamez v. Attorney General, we rejected the BIA’s addition of the
social visibility requirement, explaining that many of the particular social groups
recognized by the BIA after Acosta lacked social visibility and would have failed under
the new definition.14 We remanded the case so that the BIA could clarify what is needed
to prove the existence of a particular social group.15 The BIA subsequently explained that
a “particular social group” must be “(1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3) socially distinct within
the society in question.”16 The BIA explained the third prong, which replaced the “social
visibility” requirement, as follows: “To be socially distinct, a group need not be seen by
society; rather, it must be perceived as a group by society. Society can consider persons
to comprise a group without being able to identify the group’s members on sight.”17
In this case, the BIA found that Edeki’s proposed group did not qualify as a
“particular social group” because it failed to meet the third prong, i.e., it lacked “social
distinction.” In his petition, Edeki challenges the BIA’s newly articulated “social
distinction” requirement. According to Edeki, there is no difference between this new
requirement and the former “social visibility” standard that we rejected in Valdiviezo-
Galdamez.
Re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (B.I.A. 2007); In Re C-A-, 23 I. & N. Dec.
951, 959 (B.I.A. 2006).
14
663 F.3d 582, 604 (3d Cir. 2011).
15
Id. at 608–09.
16
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014).
17
Id. at 240 (internal citations omitted).
8
We need not reach this issue, however, because the BIA affirmed the Immigration
Judge on an additional basis: it found that Edeki had failed to establish a nexus between
his membership in his proposed group and the persecution he suffered. Demonstrating the
existence of a nexus is a separate and distinct requirement: “a key task for any asylum
applicant is to show a sufficient ‘nexus’ between persecution and one of the listed
protected grounds.”18 The BIA explained in its opinion that, “however [Edeki’s] social
group may be defined, [he] has not established that cult members targeted him to punish
him for or to overcome his group membership.”19 As a result, the BIA concluded that
Edeki “has not established that a protected ground was ‘at least one central reason’ for his
past harm.”20
The government rightly points out that Edeki failed to address this issue at any
point in his opening (and only) brief. He has accordingly waived any argument that he
actually established a sufficient nexus.21 The requirement of a nexus is a separate
element, and we have in the past denied petitions solely on the basis of a lack of nexus.22
Because Edeki failed to address the issue, he has waived his right to present any
18
Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009).
19
Ohio App. 7.
20
Ohio App. 8.
21
Bradley v. Att’y Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010) (explaining that an
argument that did not appear in petitioner’s opening brief or in his reply brief was
deemed waived).
22
See, e.g., Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 350 n.10 (3d Cir. 2008) (“It is
not necessary to determine whether [Petitioner’s proposed group] is a cognizable
‘particular social group’ under the statute, because there is substantial evidence in the
record to conclude that the [persecuting group] was not motivated by Petitioner’s
membership in a particular social group when they abducted her for eight days, but was
instead motivated by a desire to recruit her.”).
9
arguments to the contrary. Accordingly, we will deny the petition as it relates to his
application for asylum and withholding of removal.
B.
“An applicant for relief on the merits under the Convention Against Torture bears
the burden of establishing ‘that it is more likely than not that he or she would be tortured
if removed to the proposed country of removal.’”23 There is no subjective component to
this standard; rather, an alien must establish by objective evidence that he is entitled to
relief.24 If an alien meets his burden of proof, withholding of removal or deferring of
removal is mandatory.25 An alien seeking relief under the Convention Against Torture
does not need to establish that torture is inflicted on account of a protected status.26
Instead, he must “establish a likelihood of being subjected to torturous acts 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.’”27
In this case, the BIA found that Edeki had not demonstrated “that the Immigration
Judge clearly erred in finding insufficient evidence in the record to establish that he faces
a probability of torture, as defined by 8 C.F.R. § 1208.18(a), by or with the consent or
acquiescence (including willful blindness) of an official of the Nigerian government, so
23
Sevoian v. Ashcroft, 290 F.3d 166, 174–75 (3d Cir. 2002) (quoting 8 C.F.R.
§ 1208.16(c)(2)).
24
Id. at 175.
25
INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. §§ 1208.16–.18.
26
Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 64 (3d Cir. 2007).
27
Id. (alterations omitted) (quoting 8 C.F.R. § 1208.18(a)(1)).
10
as to qualify him for protection under [the Convention Against Torture].”28 The BIA
concluded that Edeki had “offered no persuasive evidence that the Nigerian government
would be likely to torture him or acquiesce in his torture by others” and that he had
therefore not met his burden of proof to establish eligibility under the Convention
Against Torture.29
The evidence presented by Edeki does not compel a conclusion contrary to the one
reached by the Immigration Judge and affirmed by the BIA. Although Edeki offered
credible testimony that the police attended his father’s funeral along with Black Axe, this
does not, on its own, demand the conclusion that the Nigerian government acquiesced in
any torture of Edeki. First, Edeki does not aver that the police were present for or aware
of the rituals performed by Black Axe at that funeral. Second, those actions related to
Edeki’s father, not Edeki himself; Edeki has alleged no facts indicating that the Nigerian
government acquiesced in or was willfully blind to Edeki’s kidnapping or any other
actions related to him personally. After all, Edeki never reported his kidnapping to the
police, which undermines his claim that the Nigerian government acquiesced in his
torture. Third, Edeki’s testimony about the police officer’s refusal to investigate the
murder of his (Edeki’s) father without a bribe may speak to the corruption of that police
officer, but it does not establish that the Nigerian government would acquiesce in the
torture of Edeki.
28
Ohio App. 8.
29
Ohio App. 8.
11
Given the weak link between the hypothetical torture of Edeki by Black Axe and
the sparse evidence of Nigerian support, we cannot say that the evidence “compels the
conclusion that [Edeki] has met this burden.”30 Accordingly, we will deny Edeki’s
petition on this ground as well.
III.
Because Edeki has failed to show that the BIA erred in denying him asylum,
withholding of removal, or protection under the Convention Against Torture, we will
deny his petition for review.
30
Kang v. Att’y Gen., 611 F.3d 157, 166 (3d Cir. 2010).
12