NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3419
___________
ALHAJA OLUMUYIWA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-045-713)
Immigration Judge: Honorable Donald Vincent Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 18, 2011
Before: MCKEE, Chief Judge, SMITH and GARTH, Circuit Judges
(Opinion filed: May 20, 2011)
___________
OPINION
___________
PER CURIAM
Alhaja Olumuyiwa petitions for review of the Board of Immigration Appeals‟
(“BIA”) denial of her motion to reopen. We will deny the petition.
I.
1
Olumuyiwa is a citizen of Nigeria who entered the United States without
inspection in 1992. She applied for asylum claiming persecution on account of her
Muslim religion. An Immigration Judge denied her application and ordered her removal
to Nigeria, and the BIA dismissed her appeal in 2002. The BIA concluded that, although
Olumuyiwa suffered past persecution, the Government showed that she could safely
relocate within Nigeria, including to its capital city of Lagos. Olumuyiwa did not petition
for review. Instead, she filed a motion for reconsideration, which the BIA denied.
Olumuyiwa petitioned for review of that ruling, and we denied her petition. See
Olumuyiwa v. Ashcroft, 95 F. App‟x 432 (3d Cir. 2004).
Over six years later, and after having been detained by the Government,
Olumuyiwa filed with the BIA the motion to reopen at issue here. Olumuyiwa presented
evidence that she has converted to Christianity since coming to the United States. She
also submitted various articles and country reports describing increased violence between
Muslims and Christians in Nigeria. She argued that she now fears persecution both by
Muslims on account of her conversion to Christianity and by Christians who will
continue to impute her former Muslim religion to her.
The BIA denied her motion by order issued August 5, 2010. The BIA held that
none of Olumuyiwa‟s evidence calls into question its earlier ruling that she could safely
relocate to Lagos. It also noted that her conversion to Christianity is a changed personal
circumstance that is not a basis to reopen. It further reasoned that Olumuyiwa‟s evidence
shows merely the continuation of conditions that persisted at the time of her previous
2
hearing. Finally, it concluded that Olumuyiwa had not shown prima facie eligibility for
relief. Olumuyiwa petitions for review.1
II.
Olumuyiwa‟s primary argument on review is that the BIA did not adequately
address the evidence she presented in support of her motion to reopen. We agree that the
BIA‟s discussion of that evidence, in which it failed to mention any item in particular,
leaves something to be desired. See Zheng, 549 F.3d at 267-68. The question ultimately
before us, however, is whether the BIA abused its discretion in denying reopening. We
cannot say that it did.
Olumuyiwa‟s motion to reopen was untimely because she did not file it within
ninety days of the BIA‟s previous decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. §
1003.2(c)(2). Thus, to obtain reopening, she had to present material evidence of
“changed country conditions arising in” Nigeria. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii). The BIA held that Olumuyiwa‟s evidence does not qualify for several
reasons. We find one of them dispositive.
In its initial decision, the BIA held that, although Olumuyiwa had shown past
1
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the BIA‟s denial of
reopening for abuse of discretion and may not disturb its ruling unless it is “„arbitrary,
irrational, or contrary to law.‟” Zheng v. Att‟y Gen., 549 F.3d 260, 264-65 (3d Cir.
2008) (citation omitted). We review the BIA‟s underlying assessment of the record
for substantial evidence and must uphold it unless “„any reasonable adjudicator would
be compelled to conclude to the contrary.‟” Liu v. Att‟y Gen., 555 F.3d 145, 148 (3d
Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)).
3
persecution, the Government rebutted the resultant presumption that she has a well-
founded fear of persecution by showing that she could reasonably relocate within
Nigeria, and to Lagos in particular. (Aug. 21, 2002 BIA Dec. at 2) (A.R. 173). In its
present decision, the BIA held that Olumuyiwa had presented no evidence “challenging
the Board‟s decision relating to [her] ability to relocate in Lagos” and that her evidence
“does not refute the fact that relocation is possible.” (Aug. 5, 2010 BIA Dec. at 1-2)
(A.R. 3-4). Although its discussion of this issue is fairly cursory, it is adequate for us to
review its ruling. See Toussaint v. Att‟y Gen., 455 F.3d 409, 414-15 (3d Cir. 2006).
Olumuyiwa has not raised any persuasive challenge to that ruling. She does not
cite any evidence calling it into question, and our own review of the record has revealed
none.2 Instead, she argues that the BIA erred by requiring her to show that she could not
relocate because, in light of her past persecution, the burden is on the Government to
prove otherwise. See 8 C.F.R. § 1208.13(b)(3)(ii). That argument misperceives the
current procedural posture. Olumuyiwa is seeking reopening, so she must show that
changed circumstances in Nigeria call the BIA‟s previous ruling into question. Her
2
Some of Olumuyiwa‟s evidence reports a recent escalation of violence between
Muslims and Christians in parts of Nigeria, primarily in the city of Jos near the
country‟s center (A.R. 123-125, 141-44), but none of her evidence mentions any
religious-based violence in Lagos. The only statement in the record arguably
suggesting the potential for such violence is the statement in the 2009 International
Religious Freedom Report that “[a]cute sectarian violence in the Middle Belt served
to heighten tensions between religious groups even in parts of the country that did not
experience the violence.” (A.R. 143-44.) That isolated reference to “heighten[ed]
tensions . . . in parts of the country” does not compel the conclusion that Olumuyiwa
cannot safely relocate to Lagos.
4
evidence does not do so. She further argues that it is not safe for her to relocate to Lagos
because her twin sister was killed there in 1996, in what she believes to be a case of
mistaken identity, but she raised that argument in her underlying proceeding and the BIA
rejected it. She cannot challenge the BIA‟s underlying ruling at this stage. See Camara
v. Att‟y Gen., 580 F.3d 196, 201 n.10 (3d Cir. 2009). Finally, she argues that the BIA
erred by stating that it is “possible” for her to relocate to Lagos instead of considering
whether it is “reasonable” for her to do so. See 8 C.F.R. § 1208.13(b)(1)(i)(B). Once
again, however, the BIA was referring merely to the lack of evidence calling its previous
ruling into question. It was not ruling on the issue in the first instance.
In sum, Olumuyiwa presented nothing requiring the BIA to revisit its previous
ruling that the Government met its burden to prove that she can safely relocate to Lagos.
That ruling remains dispositive of her claim. See id. Thus, the BIA did not abuse its
discretion in concluding that Olumuyiwa failed to show changed country conditions that
warranted reopening.3
Accordingly, we will deny the petition for review.
3
Because Olumuyiwa did not show that changed country conditions warranted
reopening, the BIA correctly held that she was not eligible to file a successive asylum
application (as in fact she did not) on the basis of the change in her personal
circumstances brought about by her conversion to Christianity. See Liu, 555 F.3d at
150. We note that the BIA previously held that both Christians and Muslims can
safely relocate within Nigeria. (Aug. 21, 2002 BIA Dec. at 2) (A.R. 173).
Olumuyiwa has not presented any evidence that country conditions have changed in
that regard.
5