Adeyemi Osonowo v. Peter D. Keisler ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1014
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*
Adeyemi Osonowo, *
*
Petitioner, * Petition for Review of an
* Order of the Board of
v. * Immigration Appeals.
*
Michael B. Mukasey,1 Attorney * [PUBLISHED]
General of the United States, *
*
Respondent. *
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Submitted: November 15, 2007
Filed: April 7, 2008
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Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.
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HANSEN, Circuit Judge.
Adeyemi Osonowo petitions this court for review of an order of the Board of
Immigration Appeals (BIA), which affirmed an Immigration Judge's (IJ) denial of his
application for asylum, withholding of removal, and protection under the Convention
Against Torture. We deny the petition for review.
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1
Michael B. Mukasey, now Attorney General of the United States, is substituted
as respondent pursuant to Federal Rule of Appellate Procedure 43(c)(2).
I.
Osonowo, a native of Nigeria, entered the United States without inspection on
February 29, 2000, and removal proceedings were commenced four years later.
Osonowo admitted the allegations and conceded the charge of removability. Also in
2004, he filed an application for asylum, withholding of removal, and relief under the
regulations implementing the Convention Against Torture, asserting in his initial
application that he suffered persecution on the basis of his membership in the Ogoni
ethnic group of Nigeria and asserting in his final application before the hearing that
he suffered religious persecution as well.
Osonowo was the only witness in support of his application at the hearing
before the IJ. He testified that he was born in the Kwara state of Nigeria in 1964 and
was educated there. He stated he is a Christian and a member of the Ogoni ethnic
group, which has been in conflict with the government over the natural resources in
Ogoniland, located in the southeastern region of Nigeria. He stated initially that he
spoke the Ogoni language, but later in the hearing indicated he speaks only Yoruba
and English. He said his parents are Ogoni; his father is dead and his mother lives in
the northern part of Nigeria, not Ogoniland.
Osonowo stated that he worked in Ogoniland for small contractors from 1989
to 1994, and prior to that time he lived in Ogoniland "[o]n and off." (R. at 111.) From
1994 until 1999, he worked in central Nigeria in the capital city of Abuja as a
consulting engineer. He testified generally regarding religious conflicts between
Christians and Muslims in Nigeria, and specifically, that he was attacked by Muslim
extremists in his home in Abuja in 1997. They allegedly beat him, and he suffered
injuries requiring two weeks of treatment at a clinic in Lagos.
Osonowo stated that he moved to Kaduna in the north in 1999, where he once
again suffered a Muslim attack on his home. While he was away on business on
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February 22, 2000, Muslim fanatics attacked his home, his wife, and his children (he
later clarified that the children were not his own but nieces and nephews). His wife
resisted the attack but was hit on the head. He was told that she had taken the children
to a military barracks for safety, but she died the same day some hours later either in,
or en route to, a hospital in Lagos, several hundred miles away.
Osonowo decided to leave Nigeria after his wife's death. He said he could not
return to Ogoniland because he had encountered problems with the tribal chiefs when
he had lived there previously. He had been affiliated with the Movement for Survival
of the Ogoni People (MOSOP), a group that actively protested the activities of the
tribal chiefs, urged the chiefs to refuse money from oil companies, and worked to stop
the destruction of the tribe's natural resources. He was not a leader of the group, but
he concluded that he would not be able to return to that region because of his earlier
work with the group. Feeling he was a marked man, Osonowo flew to Canada with
a false passport and said he came into the United States without inspection in late
February 2000. In 2001, he married a woman in the United States who filed a visa
petition for him, but it was denied on the basis that the marriage was fraudulent, and
they divorced. Osonowo remarried, and he and his current wife have three children.
Osonowo was questioned about why he did not apply for asylum as soon as he
arrived in the United States, and why he did not mention his first wife's death or the
religious-based attacks on his home in his first application. He stated he had not filed
sooner because he was depressed over his wife's death and that he had advised his
first attorney of all the facts but the attorney failed to include them in his application.
As documentary support for his application, Osonowo entered into evidence
his own handwritten statement setting forth the facts relevant to his religious
persecution claim, which he asserts he had given to his first attorney. The statement
does not mention his ethnic claim or his work with MOSOP. Osonowo also
submitted a recent State Department Country Report on Nigeria that included a
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discussion of ethnic disputes in the country; a letter from a clinical social worker at
the Center for Victims of Torture, stating that he had obtained treatment there and
that they determined he was a victim of torture; and his first wife's death certificate,
confirming that she died of a head injury at a hospital in Lagos but also stating that
her usual place of residence was an address in the Lagos area and that she had lived
there for five years. Osonowo provided no documentary proof that he was Ogoni or
that he had lived in Ogoniland or worked with MOSOP, no documentary proof that
he lived in Abuja or Kaduna, and no medical records to corroborate his testimony
concerning his two week treatment in Lagos after the 1997 attack on his home.
The IJ concluded that discrepancies between Osonowo's asylum applications
raised serious credibility concerns. The discrepancies included that his original
asylum application claimed only ethnic persecution and mentioned only generalized
claims of problems between the ethnic Ogoni and the Nigerian government, whereas
he later claimed he could not return due to conflicts with the Ogoni chiefs and his
work with MOSOP. His initial application did not mention his wife's death, the
attacks on his home, or any religious persecution claim. These discrepancies were
compounded by Osonowo's inability to submit corroborating documentation of basic
facts other than his first wife's death by a head injury, and the IJ therefore found that
Osonowo was not a credible witness. The IJ also concluded that Osonowo's asylum
claim was barred by the one-year limitation of 8 U.S.C. § 1158(a)(2)(B), and that,
even if a basis for the late filing had been established, Osonowo failed to meet his
burden of proof, and he likewise failed to meet his burden for withholding of
removal. The IJ further found no basis for concluding that the Nigerian government
would target Osonowo for torture and denied relief under the Convention Against
Torture.
The BIA found no clear error in the IJ's adverse credibility finding, which the
BIA determined was "thorough, detailed, clear, and specific." (Appellant's Add. at
2.) The BIA noted that the IJ identified significant discrepancies between the
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originally filed asylum application and the final application filed with the
Immigration Court. The BIA determined it was reasonable for the IJ to require a
larger quantum of corroborative evidence to support the claim in light of the
discrepancies. The BIA agreed with the IJ's determination that Osonowo had failed
to meet his burden of proof and accordingly, the BIA found it unnecessary to address
the arguments regarding the IJ's application of the one-year filing deadline.
II.
Osonowo sought asylum, withholding of removal, and relief under the
Convention Against Torture. The Attorney General has discretion to grant asylum
to any person who is a "refugee," 8 U.S.C. § 1158(b)(1) (2000), that is, a person who
is unable or unwilling to return to that person's home 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," id. § 1101(a)(42)(A).
See also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Eligibility for withholding
of removal requires proof of a clear probability that the alien's life or freedom would
be threatened on the basis of one of these specified grounds if removed to the country
in question, which is a more demanding standard than the well-founded fear of
persecution standard for asylum. Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir.
2008). Therefore, an alien who fails to meet the standard for asylum cannot meet the
more rigorous standard for establishing eligibility for withholding of removal. Id.Finally, "[a]n applicant seeking relief under the Convention Against Torture bears the
burden of establishing 'it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.'" Id. (quoting 8 C.F.R. § 208.16(c)(2)).
We generally review the BIA's decision as the final agency action, but where
"the BIA essentially adopted the IJ's opinion while adding some of its own reasoning,
we review both decisions." Eta-Ndu v. Gonzales, 411 F.3d 977, 982 (8th Cir. 2005)
(internal marks omitted); see also Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir.
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2006) ("Only the BIA order is subject to our review, including the IJ's findings and
reasoning to the extent they were expressly adopted by the BIA."). We review the
agency determination that an alien is not eligible for asylum, withholding of removal,
or relief under the Convention Against Torture using the deferential substantial
evidence standard. Guled, 515 F.3d at 879. Under this deferential standard of
review, we are "not at liberty to reweigh the evidence," and we will uphold the denial
of relief unless the alien demonstrates that the evidence "was so compelling that no
reasonable fact finder could fail to find the requisite fear of persecution." Eta-Ndu,
411 F.3d at 982 (internal marks omitted).
Osonowo seeks judicial review, asserting that the agency's adverse credibility
finding is not supported by substantial evidence. A credibility determination is a
finding of fact, which should be accepted "unless any reasonable adjudicator would
be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) (2000); see
Chen v. Mukasey, 510 F.3d 797, 800-01 (8th Cir. 2007) (noting the codification of
standards pertaining to credibility determinations in the Real ID Act of 2005, which
are not applicable to cases filed before May 11, 2005). To overturn the BIA and IJ's
adverse credibility determination, "we must conclude not only that a persuasive case
has been made for the opposite position, but that any reasonable fact-finder would be
persuaded by it." Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004).
"Credibility findings in particular are entitled to much weight . . . [and]
inconsistencies and inadequacies in the most critical portions" of the alien's testimony
of past persecution support an adverse credibility finding. Fofanah, 447 F.3d at 1040.
When the BIA has adopted and affirmed the IJ's adverse credibility determination,
we defer to those findings if "supported by specific, cogent reasons for disbelief."
Onsongo v. Gonzales, 457 F.3d 849, 852 (8th Cir. 2006).
We conclude that the IJ offered an adequate explanation for the credibility
assessment and that the record supports the adverse credibility determination. The
IJ first concluded that the discrepancies between Osonowo's first application claiming
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only ethnic persecution of the Ogoni people in general and the final application
claiming both ethnic and religious persecution raised concerns that warranted a closer
look for corroborating evidence. Osonowo argues that the discrepancies noted by the
BIA and IJ were minor, characterizing them as resulting from his continued attempt
to provide more information rather than inconsistent information. However, the
omission of his conflict with the chiefs, his work with MOSOP, his first wife's death,
and the two attacks on his home due to religious persecution cannot be characterized
as minor discrepancies because they are the most critical portions of his testimony,
and they were noticeably absent from his initial application. Osonowo's failure to
present any crucial corroboration of this additional information, combined with the
discrepancies noted by the IJ and BIA, ultimately resulted in the adverse credibility
finding. See Esaka v. Ashcroft, 397 F.3d 1105, 1110 (8th Cir. 2005) (adverse
credibility determinations may be based on a lack of corroborating evidence
combined with inconsistencies, contradictions or inherently improbable testimony).
Osonowo asserts that the IJ demanded corroborating evidence that he could not
obtain under the existing circumstances. "While we recognize that petitioners cannot
be expected to get substantial documentation from their persecutors," Gebresadik v.
Gonzales, 491 F.3d 846, 851 (8th Cir. 2007) (internal marks omitted), the IJ here
found that Osonowo's lack of effort to obtain corroborating documentation of even
the most basic information was significant in light of the other discrepancies noted.
Osonowo failed to provide any objective evidence to corroborate that he was Ogoni,
that he had been affiliated with MOSOP, that he had lived in the places he claimed
to have lived, or that he had received two weeks of medical treatment following one
of the attacks. The record indicates that Osonowo was not born in an Ogoni area, he
does not speak the Ogoni language, and his education took place in non-Ogoni areas.
The only objective corroborating evidence is the conclusory statement of a social
worker in Minnesota that Osonowo had suffered torture and his wife's death
certificate, indicating she died of a head injury. The death certificate indicates that
his wife died on the same day Osonowo said his home was attacked in Kaduna, but
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it records that she died in a hospital hundreds of miles away from Kaduna, and this
was contrary to his own handwritten statement that she died in the military barracks
where the family took shelter. (Compare R. at 163 with R. at 224-45.) Additionally,
the death certificate does not confirm that his wife lived in Kaduna. This evidence
does not compel a contrary conclusion.
Osonowo asserts that the BIA and IJ erroneously overlooked the consistencies
between his initial statement to the asylum officer and his hearing testimony, and he
asserts that his attorney is responsible for the omissions from his initial application.
As noted above, however, the omissions and discrepancies involve the most crucial
information necessary to his claims, and despite his consistent testimony, the record
includes other internal discrepancies, which, along with his failure to provide
objective corroborating evidence for his claims, supports the adverse credibility
finding.
Based upon this record, we cannot say that a reasonable adjudicator would be
compelled to a contrary conclusion regarding Osonowo's credibility. Where the
credibility determination goes to the heart of the alien's claims, it can be dispositive
of the merits of the asylum claim. See Guled, 515 F.3d at 880-81. In light of the
whole record and the adverse credibility finding, the evidence is not so compelling
that no reasonable fact finder could fail to find the requisite fear of persecution
necessary to a grant of asylum. Because we conclude that the agency did not err in
determining that Osonowo does not meet the well-founded fear of persecution
standard for asylum, we likewise find no error in the conclusion that he does not meet
the more rigorous standard for withholding of removal. See id. at 881.
We review the denial of Osonowo's claim for relief under the Convention
Against Torture for "whether the evidence was so compelling that a reasonable
factfinder must have found the alien entitled to relief under the Convention." Ngure
v. Ashcroft, 367 F.3d 975, 992 (8th Cir. 2004). To obtain relief under the
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Convention Against Torture, an alien must establish that it is more likely than not that
the alien would be tortured if removed to the country in question. Guled, 515 F.3d
at 881; 8 C.F.R. § 208.16(c)(2). While the decision regarding Osonowo's requests
for asylum and withholding of removal are not necessarily determinative of a claim
under the Convention Against Torture, Osonowo has not met his burden of
demonstrating that he would suffer torture by the government of Nigeria for any
reasons other than those advanced in his discredited asylum and withholding of
removal claims. See Onsongo, 457 F.3d at 855-56. Thus, the BIA and IJ did not err
in denying him relief under the Convention Against Torture.
Osonowo asserts that the IJ erred in its application of the one-year filing bar
to his claims. The BIA expressly stated that it did not need to consider Osonowo's
arguments regarding the timeliness of his application for asylum because it
determined that he failed to meet his burden of proof for asylum, even assuming that
his application had been timely or that he had established a basis for the late filing.
The issues Osonowo attempts to raise regarding the IJ's application of the one-year
filing rule, therefore, are not properly before this court. Id. at 852 n.4.
III.
For the foregoing reasons, we deny Osonowo's petition for judicial review.
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