FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAWRENCE AMAECHI ENEH,
Petitioner, No. 05-75264
v.
Agency No.
A093-252-663
ERIC H. HOLDER Jr., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 10, 2010—San Francisco, California
Filed April 15, 2010
Before: Cynthia Holcomb Hall, John T. Noonan, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Hall
5625
ENEH v. HOLDER 5627
COUNSEL
Deniz S. Arik and Christopher John Stender, Stender and
Pope, PC, Phoenix, Arizona, for the petitioner.
Cynthia M. Parsons, Assistant United States Attorney, Phoe-
nix, Arizona, for the respondent.
OPINION
HALL, Circuit Judge:
Petitioner Lawrence Amaechi Eneh, a native and citizen of
Nigeria, was paroled into the United States in 2000 for adjust-
5628 ENEH v. HOLDER
ment of status. On April 15, 2002, Eneh was convicted for
using a communication facility and interstate commerce in aid
of racketeering enterprise, namely the sale of marijuana, and
was sentenced to 36 months imprisonment. On September 19,
2003, the Department of Homeland Security issued Eneh a
Notice to Appear, charging Eneh as removable due to his con-
trolled substance conviction. Eneh conceded removability,
and applied for asylum, withholding of removal, and with-
holding and deferral of removal under the Convention Against
Torture (“CAT”). An Immigration Judge (“IJ”) denied relief,
and the Board of Immigration Appeals (“BIA”) affirmed. He
sought review in this court, which dismissed for lack of juris-
diction but transferred proceedings to the U.S. District Court
for the District of Arizona. Petitioner filed a habeas petition
with that court. On July 20, 2005, the government filed a
motion to transfer the case to this court pursuant to the REAL
ID Act of 2005. This court has jurisdiction pursuant to 8
U.S.C. § 1252. We grant the petition for review and remand
to the BIA for further proceedings.
I.
On January 26, 2004, Eneh appeared, with counsel, for a
merits hearing before the IJ. Eneh testified that in 1994 he
contracted HIV while working at a nursing home in Minne-
sota and that he now has AIDS, Capsis Sarcoma, and Valley
Fever, requiring him to take 35 pills throughout the course of
the day. He testified that prison doctors have told him that he
would die without this medication.
Eneh testified that he feared removal to Nigeria, because
Nigerian citizens convicted of crimes in foreign countries are
immediately taken into custody and imprisoned by Nigerian
officials. He testified that prison conditions in Nigeria are ter-
rible, and that the most medication that would be available to
him would be aspirin. He testified that prison officials would
deny him medicine because (1) people in Nigeria believe that
AIDS is something people cause themselves and do not give
ENEH v. HOLDER 5629
it adequate attention; (2) Nigerian officials do not budget for
AIDS medication; and (3) Valley Fever, which is particularly
life threatening, is unknown in Nigeria. He testified that peo-
ple living with AIDS in Nigeria are socially ostracized, and
he specifically testified that he would be intentionally tortured
in prison because he has AIDS. See Jan. 26, 2004 Transcript
at 48-49. Eneh provided documentary evidence to support his
claims, namely that he indeed has AIDS, cancer and Valley
Fever and that people with HIV/AIDS in Nigeria are ostra-
cized publicly and socially. He also submitted the State
Department’s 2002 Country Report for Nigeria, which indi-
cates that prison officials in Nigeria often withhold medical
treatment as a form of punishment. See U.S. State Dep’t,
Country Reports on Human Rights Practices-2002-Nigeria, at
§ 1(c) (Mar. 31, 2003).
The IJ concluded that Eneh “was forthright and sincere in
all of his testimony and the Court . . . is deeming the respon-
dent credible in his testimony.” Nonetheless, the IJ denied all
of Eneh’s claims. The IJ held that Eneh was statutorily ineli-
gible for asylum and withholding of removal as a result of his
controlled substance conviction. With regard to deferral of
removal under CAT, the IJ concluded that Eneh’s medical
deprivation and ostracism in Nigeria would not amount to tor-
ture under CAT. He stated:
There is not any doubt that the respondent’s medica-
tion may be lacking if he is removed from the United
States to Nigeria. However, it is the conclusion of
this Court that that will not be done at the instigation
of or with the consent or acquiescence of a public
official who has custody or control of the respondent
and it does not meet the requirement that the act be
intentionally inflicted or for a proscribed purpose. It
appears from all the documents submitted that Nige-
ria is in the middle of an AIDS epidemic, and they
simply, at this point, do not have the resources to
properly treat all the patients requiring medication.
5630 ENEH v. HOLDER
In denying CAT relief, the IJ stated, “It’s a shame, the respon-
dent is very articulate and his sentence is two to five, a plea
to allow him to remain in the United States and the Court
would note that if this were a discretionary request, I would
grant it.”
On June 21, 2004, the BIA dismissed Eneh’s appeal in a
brief opinion. The entirety of the BIA’s discussion of Eneh’s
CAT claims is as follows:
We agree with the Immigration Judge that the
respondent has not established that it is more likely
than not that he will be tortured if removed to Nige-
ria due to his drug trafficking conviction. There is no
evidence in the record which demonstrates a likeli-
hood that the respondent will be detained upon
return to Nigeria or that he will otherwise be subject
to torture.
The BIA also affirmed the denial of Eneh’s asylum and with-
holding of removal claims.
II.
Where the BIA conducts its own review of the evidence
and the law, this panel only reviews the BIA’s decision,
except to the extent it expressly adopts the IJ’s decision.
Hosseini v. Gonzalez, 471 F.3d 953, 957 (9th Cir. 2006). This
panel reviews the BIA’s factual findings for substantial evi-
dence, and it must uphold those findings unless the record
compels a contrary result. Mihalev v. Ashcroft, 388 F.3d 722,
724 (9th Cir. 2004).
Subsequent to the briefing in this case, the Ninth Circuit
has clarified that despite the jurisdiction-stripping provision in
8 U.S.C. § 1252(a)(2)(C), it has jurisdiction over denials of
deferral of removal under CAT. See Lemus-Galvan v.
Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008). This
ENEH v. HOLDER 5631
jurisdiction-stripping provision only applies where the IJ
expressly premised removal upon a criminal conviction, and
not where the IJ based removal on the merits of petitioner’s
CAT claim. See id. at 1083-84; Morales v. Gonzales, 478
F.3d 972, 980 (9th Cir. 2007). Because deferral of removal is
available under CAT regardless of whether petitioner has
been convicted of a crime, a denial of deferral of removal
under CAT is always a decision on the merits. Lemus-Galvan,
518 F.3d at 1083. Accordingly, this court retains jurisdiction
to review Eneh’s deferral of removal claim. Id.1
III.
[1] To prevail on a claim under CAT, a petitioner must
prove that it is more likely than not that he or she will be tor-
tured if removed to the designated country. 8 C.F.R.
§ 208.16(c)(2); Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th
Cir. 2005). Torture is defined as:
[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a per-
son for such purposes as obtaining from him or her
or a third person information or a confession, pun-
ishing him or her for an act he or she or a third per-
son 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 discrimi-
nation of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the con-
sent or acquiescence of a public official or other per-
son acting in an official capacity
8 C.F.R. § 1208.18(a)(1). Eneh does not challenge the denial
of his asylum and withholding of removal claims. The sole
issue on appeal is whether the BIA erred in denying Eneh
deferral of removal under CAT.
1
Respondent now concedes that jurisdiction is proper.
5632 ENEH v. HOLDER
It is difficult to discern from the BIA’s opinion the precise
grounds on which it denied relief. In its two-sentence discus-
sion of Eneh’s CAT claim, the BIA first states that “[w]e
agree with the Immigration Judge that the respondent has not
established that it is more likely than not that he will be tor-
tured if removed to Nigeria due to his drug trafficking convic-
tion.” This would seem to indicate that the BIA primarily
adopted the IJ’s more extensive analysis. The BIA then states
that “[t]here is no evidence in the record which demonstrates
a likelihood that the respondent will be detained upon return
to Nigeria . . . .” However, the IJ did not conclude that Eneh
would not be detained and imprisoned if he were removed to
Nigeria. To the contrary, the IJ stated that “there is not any
doubt that the respondent’s medication may be lacking if he
is removed from the United States to Nigeria,” and he found
“all” of Eneh’s testimony to be credible. The IJ’s sole basis
for denying Eneh’s CAT claim was that Eneh had not estab-
lished that the poor treatment of Nigerian prisoners with
AIDS constituted intentional torture.
It is unclear whether the BIA adopted the IJ’s reasoning in
its entirety, affirmed on alternate grounds, added an additional
ground for denying Eneh’s claim, or simply misconstrued the
IJ decision. Such ambiguity in the midst of the BIA’s already-
limited analysis makes us unable to review the decision below
in an adequate manner. See, e.g., Garcia Gomez v. Gonzales,
498 F.3d 1050, 1051 (9th Cir. 2007) (“[T]he BIA’s sparse
reasoning was inadequate to enable [the Court of Appeals] to
perform any meaningful review.” (internal quotation marks
omitted) (alteration in original)); Franco-Rosendo v. Gon-
zales, 454 F.3d 965, 966 (9th Cir. 2006) (“In order for the
court to exercise our limited authority, there must be a rea-
soned explanation by the BIA of the basis for its decision.”).
[2] Additionally, the BIA’s statement that Eneh was not
likely to be detained upon return to Nigeria was not supported
by substantial evidence. Eneh credibly testified that Nigerian
citizens deported for crimes committed in foreign lands are
ENEH v. HOLDER 5633
immediately imprisoned upon returning to Nigeria. He based
this testimony on the experiences of his friends in Nigeria,
magazine articles he had read, and statements by a DEA offi-
cial. Nothing in the record contradicts this testimony.
[3] A decision by the Seventh Circuit confirms that Nigeria
has an official policy of imprisoning its citizens for drug-
related crimes committed abroad. In Bosede v. Mukasey, 512
F.3d 946 (7th Cir. 2008), the court described Nigeria’s Decree
33, which mandates a five-year sentence for “any Nigerian
citizen found guilty in any foreign country of an offense
involving narcotic drugs or psychotropic substances and who
thereby brings the name of Nigeria into disrepute.” Id. at 949
(quoting National Drug Law Enforcement Agency (Amend-
ment) Decree No. 33 (1990) (Nigeria)). Although Eneh’s doc-
umentary evidence did not explicitly address Decree 33, we
may take judicial notice of its existence. See Singh v. Ash-
croft, 393 F.3d 903, 905-06 (9th Cir. 2004) (taking judicial
notice of the existence of an Indian intelligence agency, based
upon articles found through “a simple Lexis search”).
[4] The BIA’s reasoning appears to be at odds with the IJ’s
decision, Eneh’s credible testimony, and judicially-noticeable
facts. We therefore vacate the BIA’s denial of deferral of
removal under CAT and remand for a clearer explanation of
its decision.
IV.
Even if we liberally construe the BIA’s decision as adopt-
ing the IJ’s CAT analysis in its entirety, that analysis also is
not supported by substantial evidence. The IJ and BIA fail to
acknowledge, let alone analyze, testimony and documentary
evidence that Eneh would be individually and intentionally
targeted for mistreatment because of his HIV status and asso-
ciated medical problems.
[5] As a preliminary matter, the IJ correctly required Eneh
to demonstrate that Nigerian prison officials would intention-
5634 ENEH v. HOLDER
ally torture him because he has AIDS. At the time of briefing,
it was somewhat unclear in this circuit whether a petitioner
seeking CAT relief must show specific intent to torture or
merely “awareness and willful blindness” to torturous condi-
tions by government officials. See Zheng v. Ashcroft, 332
F.3d 1186, 1194-97 (9th Cir. 2003). In Villegas v. Mukasey,
however, we clarified that a petitioner must show for purposes
of CAT relief that someone—either a government official or
private actor—specifically intended to torture him or her. 523
F.3d 984, 989 (9th Cir. 2008). It is only when the alleged tor-
ture would be at the hand of a private entity is mere awareness
or wilful blindness by the government sufficient. Id.
[6] In Villegas, a petitioner with bipolar disorder claimed
that if he were removed to Mexico, he would be placed in a
mental institution, and he presented evidence that Mexican
mental patients are housed in deplorable conditions akin to
torture. The panel rejected his CAT claim, because “nothing
indicates that Mexican officials (or private actors to whom
officials have acquiesced) created these conditions for the
specific purpose of inflicting suffering upon the patients.” Id.
Accordingly, the IJ here correctly concluded that Eneh was
not entitled to CAT relief solely on the basis that he would
have inadequate access to medicine and be subjected to
deplorable prison conditions if removed to Nigeria.
[7] Unlike in Villegas, however, the thrust of Eneh’s argu-
ment is not just that the conditions in Nigerian prisons are tor-
turous generally, but that Nigerian prison officials would
single him out for mistreatment. Eneh specifically testified
that he would be intentionally tortured in Nigerian prisons
because he has AIDS, and he provided documentary evidence
that prison officials withhold medicine as a form of punish-
ment. The IJ never acknowledged this crucial evidence,
despite (1) explicitly finding Eneh to be credible, (2) making
detailed findings of fact that otherwise closely tracked Eneh’s
testimony and (3) expressly acknowledging that “people in
Nigeria, with AIDS or HIV are ostracized publicly and social-
ENEH v. HOLDER 5635
ly.” The IJ should have at least considered Eneh’s testimony
and documentary evidence regarding intentional torture, and
there is no indication that he did. See Wakkary v. Holder, 558
F.3d 1049, 1068 (9th Cir. 2009) (“[T]he CAT regulations cast
a wide evidentiary net, providing that ‘all evidence relevant
to the possibility of future torture shall be considered.’ ”
(quoting 8 C.F.R. § 1208.16(c)(3)) (emphasis added)). It
appears that the BIA also overlooked this evidence in its own
review of the record, given its statement that “[t]here is no
evidence in the record which demonstrates a likelihood . . .
that [Eneh] will otherwise be subject to torture.” (emphasis
added). On remand, the BIA must give reasoned consideration
to Eneh’s potentially dispositive testimony and documentary
evidence.
[8] In a somewhat similar case, the Eleventh Circuit
remanded to the BIA to consider whether a petitioner with
AIDS would be “individually and intentionally singled out for
harsh treatment” in a Haitian prison. Jean-Pierre v. U.S. Att’y
Gen., 500 F.3d 1315, 1324-25 (11th Cir. 2007) (emphasis
omitted). In Jean-Pierre, petitioner sought relief under CAT
on the basis that “he will likely be tortured in a Haitian prison
when his AIDS infection, unchecked by lifesaving medica-
tion, infects his mind and causes him to behave inappropri-
ately or erratically,” resulting in abusive treatment from
prison guards. Id. at 1323. The IJ found petitioner’s testimony
to be credible, but rejected his claim because “there is no evi-
dence that the government specifically targets [people with
HIV/AIDS] for mistreatment or lack of medical treatment.”
Id. at 1319 (alteration in the original). The BIA affirmed in a
short opinion. Id. at 1320. The Eleventh Circuit granted the
petition for review and admonished the BIA for “omitt[ing]
from its analysis any review of the most important facts pres-
ented in this case.” Id. at 1325. The BIA had misconstrued
Jean Pierre’s claim as being “limited to the assertion that plac-
ing a man with AIDS in a Haitian prison amounts to a death
sentence” and had not considered evidence that placing “this
man” in a Haitian prison would amount to torture under CAT.
5636 ENEH v. HOLDER
Id. (emphasis in original). The Eleventh Circuit held that the
BIA had failed to give “reasoned consideration” to Jean-
Pierre’s claim and remanded to the BIA. Id. at 1326. We do
the same here.
Although Eneh’s testimony and documentary evidence
regarding intentional torture is hardly voluminous, the IJ cor-
rectly noted that “[t]he testimony of an applicant, if credible,
may be sufficient to sustain the burden of proof without cor-
roboration.” See also Kamalthas v. INS, 251 F.3d 1279, 1282
(9th Cir. 2001). There is nothing in either opinion below,
however, to indicate that the IJ or BIA doubted or discounted
any aspect of Eneh’s testimony in a manner requiring further
corroboration.
V.
For the foregoing reasons, we GRANT Eneh’s petition for
review. We VACATE in part the decision of the BIA, and
REMAND to the BIA to (1) fully consider Eneh’s testimony
and documentary evidence that he would be intentionally tor-
tured if removed to Nigeria; and (2) provide a reasoned expla-
nation for its decision.