Disu v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 02-2680

GANIYU DISU,

Petitioner,

v.

JOHN ASHCROFT, United States Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Lynch, Lipez, and Howard, Circuit Judges.

David L. Yavner was on brief for petitioner.

Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, and David M. McConnell and Julia K. Doig, Attorneys,
Office of Immigration Litigation, were on brief for respondent.

July 31, 2003
 LYNCH, Circuit Judge. Ganiyu Disu is a native and

citizen of Nigeria who entered the United States as a visitor for

pleasure in June 1994. He seeks review of the denial of his

applications for asylum and withholding of deportation. Disu also

challenges the constitutionality of the summary affirmance

procedure employed by the Board of Immigration Appeals. See 8

C.F.R. § 1003.1(a)(7) (2003). We affirm.

I.

The facts are taken from the administrative record. See

8 U.S.C. § 1252(b)(4)(A) (2000). Disu was born in 1955 in

Abeokuta, a town in the state of Ogun in southern Nigeria. When

his father could no longer afford to pay for his education, Disu

left school and obtained on-the-job training as an auto mechanic.

He was hired in 1974 by the federal government of Nigeria, which

employed Disu as a mechanic at the Lagos University Teaching

Hospital until he left for the United States in 1994. Disu married

his wife during this period. The couple had four children.

Disu's testimony as to the basis for his asylum claim was

as follows. Disu was politically active. In 1979, he joined the

National Republican Convention ("NRC"), a military party that had

seized power in the country. He volunteered for the party,

repairing cars and serving as the personal driver for the NRC's

Secretary General in Ogun state. Approximately one year later,

however, the party became dominated by Nigerians from northern

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tribes, and he quit. Disu subsequently joined the Social

Democratic Party ("SDP"), a party comprised of southern Nigerians

from Disu's own Yoruba tribe. Like the NRC, the SDP used Disu as

a driver and mechanic for the local party chairman. In addition,

Disu sometimes posted flyers and delivered mail and packages for

party officials.1 He worked solely on a volunteer basis, although

the party reimbursed his expenses. The SDP was allied with

another, smaller party called the Campaign for Democracy ("CD").

Disu drove cars for members of the CD as well, and when he later

arrived in the United States, he was carrying an identification

card issued by the CD. The SDP has "millions" of members; the CD

has 20,000.

It was after Disu became politically active, he said,

that he started having trouble with the ruling military government.

Disu testified that agents of the government sometimes followed and

arrested members of the SDP. Disu was himself arrested for the

first time in February 1989. He was driving with several party

members when his car was stopped by security agents in civilian

dress. Disu and his colleagues were detained at a police station

for two days. They were given no food during their detention,

although they were not beaten or otherwise mistreated. A human

1
Disu asserted briefly during cross-examination that he was
nominated to be an ex officio member of the SDP executive board.
He did not elaborate, however, and he had earlier testified, in
contradiction, that he was not an executive member of any political
party.

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rights lawyer employed by the SDP arranged for their release. For

three years thereafter, Disu was able to continue his political

activities without interference from the government.

Disu's second and more serious encounter with government

security forces occurred in October 1992. Disu said that

approximately twenty-five SDP members, including himself, were

arrested at a meeting held in Lagos to discuss strategy for the

1993 presidential election. They were held at a police building

for a full week, during which time they received food and water

only once every three days. Disu was interrogated twice about the

SDP's plans, once for twenty minutes and once for forty. Disu lied

about what he knew. He was beaten by his interrogators and struck

in the face with a stick, causing multiple bruises. In addition,

he was attacked by a criminal cellmate and cut in the chest; Disu

believes that the police arranged for the cellmate to attack him.

He was not offered medical help for his injuries. On the morning

of the seventh day, the police released the group without

explanation. The SDP ultimately won the 1993 election, but the

military government cancelled the election results and ordered the

arrest of Moshood Abiola, the winning candidate.

After the October 1992 incident, Disu testified, he

scaled back his participation in the SDP out of fear of further

arrests. He testified that government security agents searched for

him, but that he avoided arrest by refusing to carry identification

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and by giving fake names to police officers when questioned.

Disu's wife told him that unidentified men came to their apartment

looking for him; other SDP members were visited or arrested in

their homes by security forces. In addition, a fellow SDP member

and driver named Sikiru was killed by security forces (or possibly

by hired killers) while driving in August 1993.

In June 1994, Disu decided that he had no choice but to

leave Nigeria. He moved his family to Sango Oto, also in Ogun

state in Nigeria, to live with his uncle. He obtained a plane

ticket to the United States and $100 spending money from Abiola,

the SDP presidential candidate, apparently as a gift. On June 21,

1994, Disu entered the United States as a visitor for pleasure,

ostensibly to attend a soccer game. On December 9, 1994, he filed

a request for asylum.

Disu testified that if he returns to Nigeria, he will be

arrested. At his deportation hearing, Disu introduced an affidavit

from Oluwole Toriola, the uncle with whom Disu left his wife and

children, stating that Disu "will be arrested and detained

indefinitely if he returns to Nigeria on account of his pro-

democracy activities." Moreover, according to Disu, someone still

in Nigeria told him that his photograph has been posted in the

airport and that his name has been announced on local radio and

television.

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 The immigration officer who conducted Disu's asylum

assessment interview expressed skepticism about Disu's story. Disu

also failed to mention his arrests on his asylum application form.2

On June 28, 1995, the INS3 issued an order to show cause why Disu

should not be deported. Disu conceded deportability but requested

asylum, withholding of deportation, and in the event removal was

required, voluntary departure. The Immigration Judge ("IJ")

conducted a hearing on the merits of Disu's asylum petition on

April 16, 1998, and issued an oral opinion on the same day.

The IJ found Disu deportable as charged, designated

Nigeria the country of deportation, denied Disu's applications for

asylum and withholding of deportation, and granted voluntary

departure. The IJ found that Disu had not established past

persecution and that Disu failed to establish a well-founded fear

2
When asked about this failure at his hearing, Disu stated
that he had signed the form when it was blank and that his first
attorney, whom he later discharged, filled in the answers after
interviewing him by telephone. Disu admitted that he does read
English, however, and that he did sign the application.
3
The Homeland Security Act of 2002 dissolved the INS and
transferred its functions into the Department of Homeland Security
("DHS"), effective March 1, 2003. The INS functions relevant to
this case, including the adjudication of asylum claims, now reside
in the DHS Bureau of Citizenship and Immigration Services ("BCIS").
See Pub. L. No. 107-296, § 451(a), 116 Stat. 2135, 2195-96 (Nov.
25, 2002)(creating the BCIS); id. § 451(b), 116 Stat. at 2196
(transferring asylum adjudication and related immigration services
to the BCIS); id. § 471, 116 Stat. at 2205 (abolishing the INS).
Because the INS was the responsible agency at all times relevant to
Disu's application, however, we refer to the INS rather than the
BCIS.

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of future persecution on account of his membership in the SDP. The

IJ did not explicitly say that Disu lacked credibility but plainly

did doubt his testimony, stating, inter alia, that "[t]here's some

question of respondent being who he purports to be." He noted

Disu's failure to list his arrests on his application form or

mention them in his asylum interview, as well as Disu's repeated

failure to bring his passport and related documents to his

immigration hearings. Even assuming Disu's story was partially

credible, the IJ also noted Disu's low position in the SDP and

cited a State Department country conditions report indicating that

while some persecution of SDP members exists in Nigeria, only party

leaders and those plotting against the government are at serious

risk. The IJ concluded that apart from his two arrests, Disu had

been able to live and work in Nigeria with little or no

interference from the government. Noting that the per capita GNP

in Nigeria is $250, the IJ suggested that Disu may have left

Nigeria for economic reasons.

Disu timely appealed. On November 27, 2002, the Board of

Immigration Appeals ("BIA") issued a summary affirmance, without

opinion, of the IJ's decision. See 8 C.F.R. § 1003.1(a)(7)

(formerly 8 C.F.R. § 3.1(e)(4))(empowering single members of the

BIA to grant affirmances without opinion in specified categories of

cases). This petition followed. Disu contends that the IJ erred

in finding him ineligible for asylum and withholding of

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deportation. He also argues that the BIA's summary affirmance

procedure denied him due process of law. Neither contention is

correct.

II.

This court has jurisdiction of Disu's appeal under the

transitional rules of the Illegal Immigration Reform and Immigrant

Responsibility Act, Pub. L. No. 104-208, Div. C, § 309(c)(4), 110

Stat. 3009-546, at 3009-626 (Sept. 30, 1996). See Debab v. INS,

163 F.3d 21, 22 (1st Cir. 1998). The Attorney General has been

substituted for the INS as respondent. See 8 U.S.C.

§ 1252(b)(3)(A). Because the BIA did not render its own opinion

but instead simply affirmed the opinion of the IJ, we review the

decision of the IJ directly. Herbert v. Ashcroft, 325 F.3d 68, 71

(1st Cir. 2003); Albathani v. INS, 318 F.3d 365, 373 (1st Cir.

2003).

Our review of determinations on the merits of claims for

asylum and withholding of deportation is deferential; we act only

to ensure that the agency's determination is "supported by

reasonable, substantial, and probative evidence on the record

considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotation marks omitted); see also Albathani, 318

F.3d at 372. To rule for the petitioner, we must be persuaded not

merely that the evidence supports that conclusion, but that it

compels it. See Elias-Zacarias, 502 U.S. at 481 n.1; 8 U.S.C.

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§ 1252(b)(4)(B) ("[T]he administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary."). Simply to identify alternative

findings that would also be supported by substantial evidence is

not sufficient to supplant the agency's findings. Albathani, 318

F.3d at 372.

We consider Disu's due process challenge to the BIA's

summary affirmance procedure de novo. See Aguilar-Solis v. INS,

168 F.3d 565, 568 (1st Cir. 1999).

A. Eligibility for Asylum

An applicant for asylum bears the burden of establishing

that he or she qualifies as a "refugee" within the meaning of 8

U.S.C. § 1101(a)(42). See id. § 1158(b)(1); 8 C.F.R. § 208.13(a)

(2000) (burden of proof is on the applicant to establish refugee

status). An alien may qualify as a refugee either (1) because he

or she has suffered past persecution on account of his or her race,

religion, nationality, membership in a particular social group, or

political opinion; or (2) because he or she has a well-founded fear

of suffering such persecution in the future. See 8 C.F.R.

§ 208.13(b); El Moraghy v. Ashcroft, 331 F.3d 195, 202-03 (1st Cir.

2003). An applicant who establishes past persecution is presumed

also to have a well-founded fear of future persecution. See 8

C.F.R. § 208.13(b)(1); Fergiste v. INS, 138 F.3d 14, 18-19 (1st

Cir. 1998). Alternatively, an applicant may establish a well-

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founded fear of persecution by showing that his or her fear is both

genuine and objectively reasonable. See Aguilar-Solis, 168 F.3d at

572. Whether past or future, "[t]o qualify as persecution, a

person's experience must rise above unpleasantness, harassment, and

even basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st Cir.

2000); see also Aguilar-Solis, 168 F.3d at 570 (noting that a

showing of persecution requires more than proof of "harassment or

annoyance").

The IJ expressed doubts about Disu's credibility; indeed,

he questioned whether Disu was the person he purported to be.

There was a sound basis to doubt Disu's credibility. The facts at

the core of Disu's asylum claim -- the arrests, interrogations, and

physical abuse to which he testified -- were notably absent from

his asylum application and unmentioned in his initial interview.

Nor did Disu present his passport, despite the IJ's clear warning

in a prior hearing that he should bring it; it was, Disu said, in

the possession of another uncle living in the United States.

The IJ also found that "even if some of respondent's

testimony is credible . . . [Disu] has failed to establish[] past

persecution." That is also supported. The two arrests, more than

three years apart and the last more than eighteen months before

Disu left Nigeria, were frightening (if they happened at all), but

they do not compel the conclusion that Disu suffered persecution.

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 Accepting Disu's testimony at face value, he was a low-

level volunteer in a political organization who did nothing to

assume a prominent role in opposition to the government. For the

most part, Disu lived his life free even of harassment. Of course,

one need not be a political leader to suffer persecution. But the

overall sense from Disu's testimony is certainly not one of

persecution.

For similar reasons, the IJ's finding that Disu failed to

establish a well-founded fear of future persecution is supportable.

Perhaps if Disu had been more of an activist, the country

conditions report considered by the IJ would have supported Disu's

application. But he was not, and it did not. And unlike in

Gailius v. INS, 147 F.3d 34 (1st Cir. 1998), the IJ did consider

the particularized risk to Disu, irrespective of the country

conditions report. See id. at 45-47.

The IJ considered all of the evidence and concluded that

Disu had not established a proper basis for granting asylum. We

cannot say that, on this record, "any reasonable adjudicator would

be compelled to conclude to the contrary." 8 U.S.C.

§ 1252(b)(4)(B). The denial of asylum is affirmed.

B. Withholding of Deportation

Because Disu has not established eligibility for asylum,

he necessarily also fails to satisfy the more stringent standard

for withholding deportation. See Albathani, 318 F.3d at 372-73;

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Mediouni v. INS, 314 F.3d 24, 27 (1st Cir. 2002). The denial of

Disu's request is therefore affirmed.

C. Due Process and the BIA Summary Affirmance Procedure

Finally, Disu asserts that the BIA's use of its summary

affirmance procedure, see 8 C.F.R. § 1003.1(a)(7), denied him due

process of law. This circuit has rejected due process challenges

to these regulations in Albathani, 318 F.3d at 375-79, and in El

Moraghy, 331 F.3d at 205-06. Disu raises essentially the same

argument and we reject it again.

III.

The decision of the BIA is affirmed. The BIA's grant of

voluntary departure is reinstated.

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