[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 12, 2006
No. 05-14933 THOMAS K. KAHN
________________________ CLERK
BIA No. A95-230-669
JOHN ONYEKACHI NWOKEAFOR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 12, 2006)
Before DUBINA, KRAVITCH and GIBSON *, Circuit Judges.
PER CURIAM:
*
Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
John Onyekachi Nwokeafor, an apparent native and citizen of Nigeria, seeks
review of an order by the Board of Immigration Appeals (“BIA”) adopting and
affirming the immigration judge’s (“IJ”) denial of his application for asylum.
Because Nwokeafor did not establish that he is eligible for asylum, we deny the
petition for review.
I. Background
On October 27, 2001, the former Immigration and Naturalization Service1
(“INS”) issued Nwokeafor, who was present in the United States without having
been admitted or paroled, a Notice to Appear, charging him with removability
under INA § 212(a)(6)(A)(i); 8 U.S.C. § 1182(a)(6)(A)(i).
Nwokeafor filed an application for, inter alia, asylum relief,2 alleging that he
had been persecuted by Muslim militants because he was Christian and active in
the Apostolic church. In support of his asylum application, Nwokeafor submitted
numerous articles about the religious riots in his hometown of Jos, Nigeria.
1
On 25 November 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub.L. No. 107-296, 116 Stat. 2135. The HSA created a new Department of
Homeland Security (“DHS”), abolished the INS, and transferred its functions to the new
department. However, because this case was initiated while the INS was still in existence, this
opinion refers to the agency as the INS rather than the DHS.
2
Nwokeafor also requested withholding of removal and relief under the Convention
Against Torture (“CAT”). On appeal, he does not raise these issues and, therefore, has
abandoned them. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 (11th Cir. 2005).
2
Nwokeafor testified at his hearing before the IJ as follows: In 1992 he
participated in a protest against Nigeria’s joining the Organization of Islamic
Conferences, during which he was attacked, burned with oil, had his teeth knocked
out, and was arrested and placed in jail for two nights. In 1995, his family’s
ground nut warehouse was burned down as a result of religious violence. By 1997,
Nwokeafor was working for the Apostolic Church in Jos and had moved into the
church compound with his family, and in 1998 he opened a Christian bookstore.
Muslim militants smashed the windows and damaged the store, but Nwokeafor did
not file a police report, as he believed the police were on the side of the Muslim
militants. After he cleaned up the damage, the vandals returned and left a letter of
warning. In 1999, militants attacked and stabbed Nwokeafor’s wife as she returned
from Bible study as a message to him. One of his daughters was also attacked by
Muslim militants.
In September 2001, a Christian woman was attacked and killed on a road
outside a mosque because her head was not covered. The incident sparked riots
between Muslims and Christians, during which Nwokeafor was stabbed. Because
Nwokeafor had been a leader of the local Christian youth brigade and active with
the church, the militants targeted him for attack. A Muslim friend hid him from
the Muslim militants for about a week, and then he disguised himself and stayed
with friends for a few weeks. Nwokeafor knew the Muslims were searching for
3
him because they had burned his church and shot the pastor. Thereafter, he
escaped from Jos by bus. The bus driver and several passengers took him captive,
however, holding him in an old building. He and a Jehovah’s Witness who was
also taken captive were able to escape and were eventually picked up by a
Christian truck driver who drove them to the port and helped them arrange room
aboard a cargo ship. The ship arrived in Savannah, Georgia, and he eventually
made his way to Florida. Nwokeafor had received no word of his family since the
riots began.
In the course of the INS investigation, Nwokeafor gave the authorities his
Nigerian passport and stated that he had never had a birth certificate.3 With the
assistance of a man named Emma, he had applied for the passport by mail as part
of his asylum application. Nwokeafor had owned a passport once before, but it was
destroyed when his house was burned. When he obtained the first passport, he had
done so in person and had not been required to submit any supporting
documentation. The IJ expressed concern regarding the passport’s authenticity and
questioned Nwokeafor as to how it had been issued, noting that it should be
3
Also in preparation for his asylum application, Nwokeafor had obtained a copy of a
registration of birth with the help of a man he had contacted through the local church.
Nwokeafor no longer had the man’s contact information. Nwokeafor doubted the certificate’s
validity because births were not generally recorded in Jos. He also submitted an ID card from
the Apostolic Church, which was signed by an employee of the church, although Nwokeafor
could not recall the employee’s name.
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traceable through its control number. Although acknowledging the riots and other
difficulties in Jos, the IJ stated that she would deny Nwokeafor his requested relief
if the passport could not be verified. The IJ suspended the hearing, allowing
additional time for verification.
At a follow-up hearing, Nwokeafor submitted a letter from the Nigerian
Embassy indicating that, according to the photocopy the embassy had received, the
passport looked genuine, although it could not be authenticated. Nwokeafor then
presented two witnesses: Ezekiel Orji and Robert Burton. Orji testified that he was
a Nigerian native and a citizen of Florida; he had submitted an affidavit stating that
he had been present when Nwokeafor was born in Jos and that he knew
Nwokeafor’s family. Orji stated that he had obtained his own Nigerian passport by
submitting an affidavit of birth, a sworn application by his parish priest, and a copy
of an application form with pictures. Orji also admitted that he had traveled to
Nigeria without incident. Burton, an Episcopal priest at Nwokeafor’s church in
Florida, testified that both Orji and Nwokeafor were members of his congregation
and that both were active in the church.
Nwokeafor argued that he had established his identity and nationality with
his passport and the corroborating evidence from Orji. However, the IJ ultimately
denied relief, concluding that Nwokeafor had not established his nationality and
identity given the scepticism over the birth certificate and Nwokeafor’s failure to
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verify the authenticity of his passport. The IJ also found that there was no
evidence to corroborate Nwokeafor’s claims regarding his religious activities in
Nigeria. Addressing the merits of Nwokeafor’s asylum application, the IJ
concluded that there were credibility concerns 4 and that, although the country
conditions were well-documented, the attacks on Nwokeafor and his family were
not. The IJ further noted that Nwokeafor had not attempted to relocate to a
Christian area within Nigeria.
Thereafter, Nwokeafor obtained a letter from the Nigerian Immigration
Service indicating that it had issued a passport to Nwokeafor and that the passport
was genuine. He sought review from the BIA and moved for a remand, arguing
that he had new evidence to verify the authenticity of his passport and establish his
identity and nationality. He also argued that he had made a prima facie case
establishing his eligibility for asylum. The BIA adopted the IJ’s determination,
finding the Nwokeafor had not presented adequate evidence suggesting that he was
a victim of past persecution or that he has a well-founded fear of future
persecution. The BIA also concurred in the IJ’s finding that Nwokeafor had not
established his identity, his claimed association with the Apostolic church or his
4
Specifically, the IJ stated, “I’m concerned . . . that he’s not in contact with his wife, he’s
not in contact with the children. . . . [I]f we’re to believe the entire story that he’s a religious
man, he actually lived in a church, I don’t believe he’s just going to walk away from his family
like this.”
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claims regarding harm that he and his family allegedly suffered in Nigeria.
Finally, the BIA concluded that the new evidence submitted by Nwokeafor was
insufficient to cure the evidentiary deficiencies identified by the IJ.
II. Discussion
When the BIA issues a decision, we review only that decision, “except to the
extent that it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). Here, we review the IJ’s opinion because the BIA
has adopted it in full. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th
Cir. 2004). Credibility determinations are reviewed under the substantial evidence
test, and the IJ must offer specific, cogent reasons for an adverse credibility
finding. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286-1287 (11th Cir. 2005).
We “must affirm the [IJ’s] decision if it is ‘supported by reasonable, substantial,
and probative evidence on the record considered as a whole.’”5 Antipova v. U.S.
Att’y Gen., 392 F.3d 1259, 1261 (11th Cir. 2004).
Although uncorroborated but credible testimony may be sufficient to sustain
the burden of proof for demonstrating eligibility for asylum, 8 C.F.R. §§ 208.13(a),
5
On May 11, 2005, President Bush signed into law the Real ID Act of 2005 (“RIA”),
Pub.L. No. 109-13, Div. B, 119 Stat 231. RIA 101(a)(3) amends INA § 208(b)(1), 8 U.S.C. §
1158(b)(1), regarding the assessment of credibility. This amendment took effect on the date of
enactment and applies to applications for asylum and withholding of removal made on or after
that date. See RIA 101(h)(2). Because Nwokeafor’s application for asylum was filed before May
11, 2005, the credibility standard of the RIA does not apply to his petition.
7
208.16(b), the weaker an applicant’s testimony, the greater the need for
corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136, 1139, 1998 WL
99554 (BIA 1998). The IJ’s credibility determination is conclusive unless a
reasonable factfinder would be compelled to conclude to the contrary. Fahim v.
U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002). That evidence in the
“record may support a contrary conclusion is not enough to justify a reversal.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004), cert. denied, 125 S.Ct.
2245 (2005). “If the applicant produces no other evidence other than his testimony,
an adverse credibility determination is alone sufficient to support the denial of an
asylum application.” Forgue, 401 F.3d at 1287.
Nwokeafor argues that neither the IJ nor the BIA made an express adverse
credibility determination and that, accordingly, the IJ and BIA committed
reversible error in demanding documentary evidence corroborating Nwokeafor’s
otherwise credible testimony. In the alternative, Nwokeafor argues that we should
remand this case to allow the IJ to make an explicit credibility determination.
IJ’s Credibility Determination
First, Nwokeafor’s assertion that the IJ failed to make an adverse credibility
determination is incorrect. He is correct in noting that “IJ’s must make clean
determinations of credibility,” however. Yang v. U.S. Att’y Gen., 418 F.3d 1198,
1201 (11th Cir. 2005) (internal quotation marks omitted; citation omitted). Here,
8
although the IJ’s statement could have been more clear, she made an adequate
adverse credibility determination. See Nreka v. U.S. Att’y Gen., 408 F.3d 1361,
1369 n.9 (11th Cir. 2005) (accepting the IJ’s statements of concern regarding
credibility as adequate, although noting that the IJ could have been more clear).
During Nwokeafor’s hearing, the IJ expressed concern “that [Nwokeafor is]
not in contact with his wife, he’s not in contact with the children. . . . [I]f we’re to
believe the entire story that he’s a religious man, he actually lived in a church, I
don’t believe he’s just going to walk away from his family like this.” The IJ
expected that Nwokeafor should have been able to obtain business records, school
records, a marriage certificate or family pictures supporting his story. She stated
that someone should remember Nwokeafor if he had worked at the church for all
those years. Finally, in her oral decision, the IJ noted that none of the claimed
attacks on Nwokeafor and his family had been documented. The IJ explicitly
stated that “[i]n this case the Court does have issues of credibility” and concluded
that Nwokeafor “failed to establish his activities in Nigeria or corroborate his
claim.” The IJ thus made an adverse credibility determination. Likewise, the BIA
stated in its order that Nwokeafor failed to “provide specific, detailed, plausible,
and coherent information about the basis of his fear of persecution.”
As the IJ made an adverse credibility determination and Nwokeafor did not
produce any evidence other than his testimony regarding his activities in Nigeria or
9
the events underlying his claims of persecution, Nwokeafor has not established that
the IJ’s adverse credibility determination was unsupported by substantial evidence.
Accordingly, we need not consider whether the IJ erred in failing to credit the
Nigerian government’s authentication of Nwokeafor’s passport or in determining
that Nwokeafor could have safely relocated to a Christian region of Nigeria, and
we deny his petition.
PETITION DENIED.
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