Akinfolarin v. Gonzales

United States Court of Appeals
For the First Circuit

No. 04-2526

RONKE AKINFOLARIN,

Petitioner,

v.

ALBERTO GONZALES,
Attorney General of the United States,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,
Lynch and Howard, Circuit Judges.

Mark B. Laroche on brief for petitioner.
Jocelyn Lopez Wright, Assistant Director, Office of
Immigration Litigation, Civil Division, United States Department of
Justice, Peter D. Keisler, Assistant Attorney General, and Kristin
K. Edison, Law Clerk, on brief for respondent.

September 13, 2005
 LYNCH, Circuit Judge. Petitioner Ronke Akinfolarin, a

native and citizen of Nigeria, seeks review of a final order of

removal issued by the Board of Immigration Appeals (BIA), which

affirmed, without opinion, the Immigration Judge's (IJ's) denial of

her application for asylum, withholding of removal, and relief

under the United Nations Convention Against Torture (CAT). We deny

the petition for review.

I.

Akinfolarin entered the United States as a visitor on

January 4, 1993. On or about April 4, 1994, she filed an

application for asylum with the former Immigration and

Naturalization Service (INS).1 Subsequently, she departed the

United States on advanced parole and was reparoled on February 3,

1996. The INS interviewed Akinfolarin about her asylum application

on June 13, 2000 and commenced removal proceedings against her

thirteen days later.

At the removal hearing, Akinfolarin conceded

removability, but sought asylum, withholding of removal, relief

under the CAT, and, in the alternative, voluntary departure. In

support of her petition, she provided a graphic account of violence

at the hands of religious fanatics. Prior to departing from

1
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security, and the INS
subsequently ceased to exist. See Homeland Security Act of 2002,
Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as
amended at 6 U.S.C. § 291(a)).

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Nigeria, Akinfolarin recounted, she served as a secretary for the

Federal Ministry of Works. In January 1991, she and her brother,

also a government employee, were transferred from Lagos, the former

capital, to Abuja, the current one. Upon their arrival, the

siblings, both Muslim, joined a new mosque. In August 1992, a

friend warned them that the other members of the mosque were

Maitatsine,2 a religious sect that allegedly "practice[d] killing

[humans] and drinking their blood." Two months later, Akinfolarin

said, an imam invited her and her brother to a special prayer

meeting that began at 1 a.m., much later than the customary service

hour of 1 p.m. Concerned that the members of the mosque were,

indeed, Maitatsine, the siblings arrived at the meeting earlier

than the appointed time. According to Akinfolarin's testimony,

peeking through a window, they saw "a couple of people tied down,"

one of whose "throat was sliced." The siblings then returned to

their house. Shortly after, they heard a knock at their door, and

Akinfolarin's brother opened it, against her instructions.

Akinfolarin said that, from under the bed, where she was hiding

with her six-day-old baby, she saw four men whom she recognized

from the mosque push down her brother and "cut [him] with a dagger,

a knife on his throat." By her account, there was "blood all over

the place," and she could "hear him gagging." After "at least one

2
The sect's name is sometimes spelled "Matezena" in the
record. We employ the spelling used by the parties in their
briefs.

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hour," she screamed for help. At the hearing, Akinfolarin

testified that her brother died "in the middle of [that] night" in

their home in Abuja. She brought his corpse back to Lagos the

following morning, first to the hospital, then to be buried. She

did not, however, go to the authorities, crediting rumors that

"some of the police are [Maitatsine]."

Subsequent to her brother's death, Akinfolarin resided

for twelve months in Lagos, after which she departed for the United

States on a visitor visa and applied for asylum. She stayed in the

United States until January 16, 1996, when she was granted advance

parole to return to Nigeria for two weeks to attend the burial of

her mother. While in Nigeria and en route from visiting a friend

named Joyce, Akinfolarin reported, two3 men "jumped" her in Abuna

Agage. She identified the men by their dress as Maitatsine, but

conceded that they were not the same men who killed her brother.

When asked how the Maitatsine knew of her return to Nigeria, she

said she did not know but speculated that Joyce had "changed" and

"had something to do with" the attack. Akinfolarin stated that she

sustained lacerations in her left arm and right foot in the attack.

Moreover, she testified that the attack left her afraid to return

to Nigeria; she averred that if she were to do so, she would be

killed by the Maitatsine, who "are all over."

3
Moments later in the hearing, Akinfolarin testified that
"three people" attacked her in Abuna Agage.

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 After considering Akinfolarin's testimony and evidentiary

submissions, the IJ delivered an oral opinion. The IJ first

addressed the admissibility of Akinfolarin's evidence, noting her

rejection of various documents, including an amended asylum

application and a psychiatric affidavit. She then decided against

Akinfolarin on her claims for asylum and withholding of removal,

concluding that because "the case just doesn't appear to be a true

case," Akinfolarin had failed to prove past persecution or a well-

founded fear of future persecution. Also, the IJ determined that

Akinfolarin did not establish eligibility for protection under the

CAT because she failed to make "any claim that the authorities in

Nigeria would subject her to torture." Finally, the IJ found that

Akinfolarin "is not entitled to voluntary departure insofar she is

an arriving alien." Akinfolarin timely appealed to the BIA, which

summarily affirmed.4 She then timely petitioned for review by this

court.

II.

Akinfolarin makes three claims on review. First, she

contends that the IJ erred by refusing to admit her amended asylum

4
Contemporaneously with the filing of her petition before
this court, Akinfolarin also filed a motion to reconsider with the
BIA, which denied the motion on March 8, 2005. Akinfolarin did not
timely file a petition for review of the denial of the motion to
reconsider. Thus, although the record contains certain
administrative filings that post-date the BIA's October 12, 2004
affirmance of the IJ's decision, this court disposes of the instant
petition solely on the basis of the administrative record as of
October 12, 2004.

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application and psychiatric affidavit. Second, she argues that the

IJ's denial of her asylum and withholding of removal claims was not

supported by substantial evidence. Finally, she submits that the

IJ erred in classifying her as an "arriving alien" and thereby

concluding that she was statutorily ineligible for voluntary

departure. Since the BIA summarily affirmed without opinion, we

adjudicate all three claims with reference to the findings and the

conclusions of the IJ. See 8 C.F.R. § 1003.1(e)(4); Jupiter v.

Ashcroft, 396 F.3d 487, 490 (1st Cir. 2005); Keo v. Ashcroft, 341

F.3d 57, 60 (1st Cir. 2003).

With regard to the first claim, Akinfolarin must show

that the IJ's exclusion of evidence was an abuse of discretion and

that she was prejudiced as a result. See Galicia v. Ashcroft, 396

F.3d 446, 447-48 (1st Cir. 2005). This deferential standard of

review reflects our determination that "[a]n immigration judge,

like other judicial officers, possesses broad (though not

uncabined) discretion over the conduct of trial proceedings."

Sharari v. Gonzales, 407 F.3d 467, 476 (1st Cir. 2005) (quoting

Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir. 1999)).

We determine under this standard that Akinfolarin has no

valid procedural claim as to either of the excluded documents.

Akinfolarin waited until the day of the removal hearing -- actually

her third appearance before the IJ -- to proffer the amended asylum

application. Moreover, that filing contained information that

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contradicted her trial testimony. Specifically, the amended I-589

listed her sons' names as "Eric B. Olodapo" and "Jeffrey Olalikin";

however, during the course of her testimony, Akinfolarin asserted

that her older son's name is "Eric Babatunde," while her younger

child's name is "Jeffrey Olodapo." When questioned, Akinfolarin

failed to satisfactorily account for the inconsistencies or to

present any additional information, such as authenticated birth

certificates, capable of independently verifying the information

she gave regarding her children. Although an "immigration judge

having jurisdiction may permit an asylum applicant to amend . . .

the application," see 8 C.F.R. § 208.4(c), there was no abuse of

discretion in the IJ's refusing such an untimely and unreliable

filing. See Galicia, 396 F.3d at 448 (finding no error in IJ's

refusal to admit documents that were late, incomplete, and not

properly formatted); Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756

(8th Cir. 2004) (finding no error in IJ's declining to admit

untimely supplement to asylum application).

Nor was there error in the IJ's refusal to admit the

psychiatric affidavit. The affidavit, which was prepared by a

doctor who was not made available at the hearing, was created in

March 2002 as a result of a one-time consultation and had not been

updated since; the IJ determined that the underlying consultation

"wasn't a thorough enough exam" for her to "really give any

credence to this finding." More significantly, the IJ expressed

-7-
concern that the affidavit contained information that contradicted

Akinfolarin's own testimony. Indeed, Akinfolarin failed to

articulate a persuasive explanation for the following

discrepancies, among others: First, the affidavit identified

petitioner as the eleventh of twelve children, although she claimed

at the hearing that she has no living siblings and that her sole

brother died. Second, it noted that she moved from Lagos to Abuja

in 1992, though she testified that she moved in 1991. Third, it

reported that she saw only one man tied down at the 1 a.m. prayer

meeting, whereas at the hearing, she reported that she

clandestinely observed "a couple of people tied down." Given such

reliability concerns, the IJ did not abuse her discretion in

declining to admit the affidavit.

Finally, we note that even if there had been error in the

IJ's refusal to admit the evidence, the error would not have

prejudiced Akinfolarin. The IJ made it clear that she would not

have given much credence to these materials, given the

discrepancies between the information contained therein and that

relayed during Akinfolarin's testimony. Cf. Chay-Velasquez, 367

F.3d at 756 (finding no abuse of discretion in an IJ's refusal to

admit late filings, where the refusal did not prejudice petitioner

because the supplemental materials "would not have affected the

basis for denying him relief").

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 III.

Akinfolarin next challenges the IJ's denial of her asylum

and withholding of removal claims. We review the denial of her

claims under the deferential substantial evidence standard. See

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Akinwande v.

Ashcroft, 380 F.3d 517, 522 (1st Cir. 2004). Under the substantial

evidence test, the IJ's determination must stand "unless any

reasonable adjudicator would be compelled to conclude to the

contrary." 8 U.S.C. § 1252(b)(4)(B); see also Rodriguez-Ramirez v.

Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005). As to issues of

credibility, we give great deference to an IJ's determinations so

long as the IJ provides "specific reasons for those

determinations." Akinwande, 380 F.3d at 522.

We begin by considering Akinfolarin's application for

asylum, noting that "[b]ecause the 'more likely than not' standard

for withholding deportation is more stringent than that for asylum,

a petitioner unable to satisfy the asylum standard fails, a

fortiori, to satisfy the former." Albathani v. INS, 318 F.3d 365,

372 (1st Cir. 2003). An asylum applicant bears the burden of

establishing that she qualifies as a "refugee" and thus is eligible

for asylum. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(a).

Meeting this burden requires proving past persecution or a well-

founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political

-9-
opinion. 8 U.S.C. § 1101(a)(42)(A); see also Qin v. Ashcroft, 360

F.3d 302, 306 (1st Cir. 2004). Although an asylum applicant's

testimony "may be sufficient to sustain the burden of proof without

corroboration," such testimony must be credible. Settenda v.

Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004) (quoting 8 C.F.R.

§ 1208.13(a)) (internal quotation marks omitted).

Substantial evidence supports the IJ's determination that

Akinfolarin failed to substantiate either her claim of past

persecution or her fear of future persecution. As the IJ

concluded, "the case just doesn't appear to be a true case." In

support of her adverse credibility determination, the IJ pointed to

-- and the record is riddled with -- unresolved discrepancies among

Akinfolarin's testimony, evidentiary submissions, and asylum

papers. For instance, Akinfolarin testified that her brother died

in the middle of the night in Abuja; however, the documents she

submitted to bolster her account report that her brother died in a

hospital in Lagos at 6:15 p.m. Moreover, the IJ found it

"peculiar" that Akinfolarin "has not one reliable document to show

this Court"; indeed, she failed to produce birth certificates for

either of her children or employment records from Nigeria. Of the

evidentiary materials Akinfolarin did proffer, most were rejected

by the IJ either because notary seals and other information on the

face of the documents showed that "they could not [have] been

issued when they claimed to have been issued" or because

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"respondent's testimony [revealed] that they were not in fact

contemporaneous record[s] as they appear to purport to be."

Adverse credibility determination aside, we agree with

the IJ that "there simply is just not objective evidence" to

establish that Akinfolarin was or would be harmed on account of any

of the five statutory grounds. Without crediting speculation,

there is no nexus between Akinfolarin's brother's death and her

1996 attack: the two events lacked temporal and geographical

proximity, and Akinfolarin gave no objective reasons for believing

that her brother's assailants or their associates knew of her

return to Nigeria. Additionally, as the IJ observed, the fact

"that she was a victim or may have been the victim of a crime in

January of 1996 when she returned to Nigeria" does not prove that

she was targeted for harm by one particular group or on account of

one of the five statutory grounds. One -- or even two -- criminal

acts does not persecution necessarily make.5 See Rodriguez-

Ramirez, 398 F.3d at 124 ("[N]ot all horrific experiences translate

into persecution."). Finally, however traumatic events were in

Abuja, Akinfolarin testified that she resided for a year, without

incident, in Lagos after her brother's death. That, along with the

5
The IJ never directly reached the question whether the
purported persecution was sponsored by the government or merely
private. See Harutyunyan v. Gonzales, No. 04-2207, slip op. at 9
(1st Cir. Sept. 2, 2005); Da Silva v. Ashcroft, 394 F.3d 1, 7 (1st
Cir. 2005). She did, however, observe that "there is no evidence
that the [Nigerian] government would be unable to protect"
Akinfolarin.

-11-
fact that, according to her own evidence, the Nigerian government

has begun since 1998 to crack down on Maitatsine fanatics,

militates against a finding of a well-founded fear of persecution.

See Quevedo v. Ashcroft, 336 F.3d 39, 42, 44 (1st Cir. 2003).

In sum, the record does not compel a rejection of the

IJ's determination that Akinfolarin failed to substantiate past

persecution or a fear of future persecution. She thus also fails

to satisfy the standard for withholding of deportation.6 See

Albathani, 318 F.3d at 374; Velasquez v. Ashcroft, 316 F.3d 31, 33

n.2 (1st Cir. 2002).

IV.

Finally, Akinfolarin argues that the IJ erred as a matter

of law in classifying her as an "arriving alien," see 8 C.F.R.

§ 1001.1(q), which made her statutorily ineligible for voluntary

departure. See 8 U.S.C. § 1229c(a)(4). This court lacks

jurisdiction to review denials of voluntary departure. See id.

§ 1252(a)(2)(B)(i) (divesting the courts of jurisdiction over "any

judgment regarding the granting of relief under" § 1229c); id.

6
Akinfolarin also argues that the IJ abused her discretion
in failing to grant relief under 8 C.F.R. § 208.13(b)(1)(iii),
which allows for a discretionary grant of asylum in the absence of
a well-founded fear of persecution. Such discretionary relief is
available only upon a threshold finding that the applicant suffered
past persecution within the meaning of 8 C.F.R. 208.13(b)(1).
Because we find that substantial evidence supports the IJ's
determination that Akinfolarin did not suffer past persecution,
Akinfolarin's claim for discretionary relief necessarily also
fails.

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§ 1229c(f); Bocova v. Gonzales, 412 F.3d 257, 265 (1st Cir. 2005)

(recognizing that Congress has "stripp[ed] the courts of appeals of

jurisdiction to review BIA decisions as to whether to grant

voluntary departure"). We do not reach the question whether this

statutory proscription extends to review of statutory eligibility

for voluntary departure7 because, as the government points out,

prior to petitioning this court for review, Akinfolarin never once

contested her classification as an arriving alien: the Notice to

Appear designated her as an arriving alien; she admitted, and the

IJ confirmed her admission of, the allegations therein; and she

made no protest when the IJ twice identified her as an arriving

alien during the removal proceedings. There was thus no error to

the IJ's finding that she was not entitled to voluntary departure.

V.

The petition for review is denied.

7
See Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1166 (9th Cir.
2004) (construing 8 U.S.C. §§ 1252(a)(2)(B)(i) and 1229c(f) to
preclude review of "denials of voluntary departure, including
statutory eligibility for voluntary departure"). But cf. Succar v.
Ashcroft, 394 F.3d 8, 19 (1st Cir. 2005) (noting, in another
context, that 8 U.S.C. § 1252(a)(2)(B)(i) did not entirely
eliminate judicial review of purely legal questions).

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