M-B-A

Cite as 23 I&N Dec. 474 (BIA 2002) Interim Decision #3480

In re M-B-A-, Respondent
Decided September 24, 2002
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

A Nigerian convicted of a drug offense in the United States failed to establish eligibility for
deferral of removal under Article 3 of the Convention Against Torture because the evidence
she presented regarding the enforcement of Decree No. 33 of the Nigerian National Drug Law
Enforcement Agency against individuals similarly situated to her was insufficient to
demonstrate that it is more likely than not that she will be tortured by a public official, or at the
instigation or with the consent or acquiescence of such an official, if she is deported to Nigeria.

FOR RESPONDENT: Star Havasreti, Esquire, St. Petersburg, Florida
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Sylvia H. Alonso,
Appellate Counsel

BEFORE: Board En Banc: SCIALABBA, Chairman; DUNNE, Vice Chairman; HOLMES,
HURWITZ, VILLAGELIU, FILPPU, COLE, GRANT, MOSCATO, MILLER,
OHLSON, HESS, and PAULEY, Board Members. Concurring and Dissenting
Opinion: ROSENBERG, Board Member. Dissenting Opinion: SCHMIDT,
Board Member, joined by GUENDELSBERGER, BRENNAN, ESPENOZA, and
OSUNA, Board Members.
HOLMES, Board Member:

This case is before us pursuant to a motion filed by the Immigration and
Naturalization Service seeking en banc reconsideration of our June 8, 2001,
decision sustaining the respondent’s appeal. The Service’s motion will be
granted. Upon reconsideration, our June 8, 2001, decision will be vacated
and the respondent’s appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 40-year-old native and citizen of Nigeria who entered
the United States on January 16, 1981, as a nonimmigrant visitor. She
subsequently adjusted her status to that of a lawful permanent resident on
December 1, 1989. The respondent was convicted on January 20, 1995, in
the United States District Court, District of Massachusetts, of importation of
a controlled substance and possession of heroin with intent to distribute, in
violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 952(a) and 841(a)(1) (1994).
She was initially sentenced to 121 months’ imprisonment, but her sentence

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was later reduced to 78 months as a result of her assistance to Government
controlled substances investigations.
On May 21, 1999, the Service issued a Notice to Appear (Form I-862)
charging that the respondent is removable under sections 237(a)(2)(A)(iii) and
(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1227(a)(2)(A)(iii)
and (B)(i) (Supp. V 1999), as an alien convicted of an aggravated felony and
a controlled substance violation. In proceedings before the Immigration
Judge, the respondent, through counsel, admitted the allegations of the Notice
to Appear and conceded that she is removable as charged. The Immigration
Judge concluded that the respondent’s conviction and sentence precluded her
from establishing eligibility for any relief other than deferral of removal under
Article 3 of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N.
Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United
States Apr. 18, 1988) (“Convention Against Torture” or “Convention”). The
respondent does not dispute the Immigration Judge’s finding in this regard.
In her application for protection under the Convention Against Torture, the
respondent stated that if she is returned to Nigeria she would be imprisoned
and tortured as a result of her drug conviction in this country. In support of
this claim, the respondent submitted a detailed affidavit, evidence of country
conditions in Nigeria, and a copy of a 1990 Nigerian federal military
government decree which, in part, criminalized the conduct of Nigerians who
are convicted of narcotic drug offenses in a foreign country and bring the
name of Nigeria into disrepute, or who are detected carrying a narcotic drug
into a foreign country after a journey originating from Nigeria. See National
Drug Law Enforcement Agency (Amendment) Decree 1990, Decree No. 33
(Oct. 10, 1990) (“Decree No. 33”).
During proceedings before the Immigration Judge on December 14, 1999,
the respondent testified that she had traveled to Nigeria in 1993 to meet her
then-fiancé’s family and had been unwillingly involved in drug trafficking by
his relatives and associates when she traveled back to the United States. She
testified that because of this conviction she would be immediately turned
over to drug enforcement authorities and imprisoned if she is returned to
Nigeria, that she would be in jail for years before she would be able to see
a judge, that she was subject to a mandatory 5-year term of imprisonment, and
that she would be subjected to torture while jailed.
When asked how she knew that this would occur, the respondent referred
to Decree No. 33 and also testified that some years before she had
communicated with an unnamed Nigerian friend who had been convicted of
a drug offense in this country and then returned to Nigeria. The respondent
indicated that she spoke by telephone to her friend and her friend’s parents in
1995. She was told that her friend had been detained upon her return to

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Nigeria in 1995, that her family had had to bring food and medication to the
jail and pay money for her protection, that she slept on the floor, and that
“you probably get raped and beat down” by the guards because they have
authority to do “whatever they can do.” Her friend remained in jail for
2 months until her family paid a bribe to get her released. The respondent did
not know whether her friend had gone before a judge before being
incarcerated or whether she had been raped in prison. The respondent
testified that she had had a letter from her friend, but that the Service had
misplaced “all of her paperwork” while she was in transit and that she no
longer knew the whereabouts of her friend.
The respondent further testified that there was no one to help her in Nigeria
if she were jailed. Her father had died and her mother was “presently” living
in England with her mother’s sister. However, the respondent’s mother was
not a citizen or resident of the United Kingdom and the respondent did not
know how long she would be staying in England. The respondent testified
that all of her brothers and sisters were in the United States and that her only
relations in Nigeria were an uncle and his children, but that they would not
assist her and she would not even want her uncle to know that she was in
Nigeria because he had sexually abused her as a child. The respondent did
not present any testimony from her siblings in this country or otherwise testify
regarding her relationship with them or their individual circumstances.
The respondent testified, and provided supporting medical evidence, that
she suffers from depression, a chronic ulcer, and asthma. She stated that she
had no one to rely on to supply her with medicine if she were jailed in
Nigeria. In addition, the respondent testified that she would probably be
beaten and raped by prison guards. She stated that most women are
subjected to such treatment in prison and that the government does not have
the ability to protect them. She also claimed that she would be particularly
vulnerable because her ex-fiancé would pay prison guards to harm her
because of her cooperation with drug enforcement authorities in this country.
The respondent indicated that her ex-fiancé was now in Nigeria, but she did
not testify to any communications from or about him, or otherwise identify a
specific basis for her claim that he had the ability and intent to cause her harm
if she were detained in Nigeria.
Following this hearing, the Immigration Judge requested that the parties file
briefs to address the issues presented, including whether the respondent
would be imprisoned without trial upon her return to Nigeria. The Service
filed a memorandum in which it noted that it was unclear whether Decree No.
33 was still in effect or had been repealed by the 1999 Constitution of the
Federal Republic of Nigeria. In a decision dated January 5, 2000, the
Immigration Judge found the respondent removable and denied her application
for deferral of removal, concluding that, even if she were imprisoned under

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Decree No. 33, the respondent had failed to establish that it was more likely
than not that she would be tortured in prison.
Following an appeal by the respondent, the case was remanded by the
Board to the Immigration Judge on September 6, 2000, for procedural reasons
arising from the fact that the respondent had not been provided an opportunity
to rebut the evidence regarding the new Nigerian constitution that was first
raised in the Service’s post-hearing memorandum. In that decision, we also
specifically directed the Immigration Judge to address the respondent’s claim
that it is more likely than not that she would be imprisoned if returned to
Nigeria. The parties responded by submitting memoranda of law and
supporting documents. Neither party sought to present any further testimonial
evidence. In a November 29, 2000, decision, the Immigration Judge again
denied the respondent’s application for relief. He addressed the additional
evidence submitted by the parties and concluded that the respondent still had
not met her burden of proving that she would be imprisoned and tortured in
Nigeria. The respondent filed an appeal from this decision, which was
sustained in a Board panel decision issued on June 8, 2001. The Service
timely submitted the present motion seeking en banc reconsideration of that
decision. We have decided to reconsider the decision en banc. See 8 C.F.R.
§ 3.1(a)(4)(i) (2002).

II. ISSUE ON APPEAL
The issue on appeal is whether the respondent has met her burden of
establishing that she is eligible for deferral of removal under the Convention
Against Torture by proving that it is more likely than not that she will be
imprisoned and tortured in Nigeria by a public official, or at the instigation
or with the acquiescence of such an official, if she is returned to that country.
III. ANALYSIS
In order to establish eligibility for deferral of removal, the respondent must
show that it is more likely than not that she will be subject to torture by a
public official, or at the instigation or with the acquiescence of such an
official. See 8 C.F.R. §§ 208.16(c)(4), 208.18(a) (2002); see also Matter of
G-A-, 23 I&N Dec. 366 (BIA 2002); Matter of Y-L-, A-G- & R-S-R-, 23 I&N
Dec. 270 (A.G. 2002); Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000). The
respondent has claimed that if she is returned to Nigeria she will be arrested
and imprisoned without trial for 5 years pursuant to Decree No. 33,1 and that

1
This decree provides that a Nigerian citizen who is convicted of a narcotic drug offense in
a foreign country, or who is detected carrying a narcotic drug into a foreign country after a
journey originating from Nigeria, “shall be liable to imprisonment for a term of five years
(continued...)

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while in prison she will be tortured by guards. Thus, the respondent must
demonstrate, inter alia, that enforcement of Decree No. 33 will more likely
than not result in her detention and torture in Nigeria upon her return to that
country. We find that she has not met her burden of proof in this regard.
In our decision of September 6, 2000, remanding the case to the
Immigration Judge, we noted that the Immigration Judge should more
specifically address the respondent’s claim that it was more likely than not
that she would be imprisoned if returned to Nigeria. On remand, the
Immigration Judge advised the parties that he expected that issue to be
addressed in their submissions. Although the respondent submitted additional
documentation regarding country conditions in Nigeria and evidence in
response to the Service’s claim that the new Nigerian constitution may have
repealed Decree No. 33, nothing further was offered with regard to the
manner of enforcement of this decree. It is unclear whether the respondent
chose to rest on the evidence of record or was unsuccessful in uncovering any
additional information relevant to this matter. Whichever was the case, the
respondent’s evidence regarding the manner of enforcement of Decree No. 33
largely remains that which was presented at the 1999 proceedings. We find
this evidence insufficient to demonstrate that it is more likely than not that the
respondent will be detained or imprisoned if she is returned to Nigeria.
The actual status of Decree No. 33 is not entirely clear on the record
before us, but we will assume that it has not been repealed and is
enforceable. However, even assuming that such is the case, there is little
evidence of record on which to base any meaningful conclusion regarding the
extent to which this provision is presently enforced, and how and against
whom it is enforced. The fact that the decree is written in mandatory terms
is not in itself determinative because it is common to couch criminal
provisions in such terms. For example, virtually all of the criminal provisions
of Title 18, United States Code, omit any specific reference to a right to trial
and provide that anyone guilty of the offense in question “shall be punished”
or “shall be imprisoned.” See, e.g., 18 U.S.C. § 1111(b) (2000) (“Within the
special maritime and territorial jurisdiction of the United States, [w]hoever
is guilty of murder in the first degree shall be punished by death or by
imprisonment for life.”).
The respondent’s own evidence concerning the present manner of
enforcement of Decree No. 33 does not go much beyond conjecture, and her
reference to the circumstances that were related to her by her friend and her
friend’s parents in 1995 involved one individual some 7 years ago under a

1
(...continued)
without an option of fine.” See generally McDaniel v. United States INS, 142 F. Supp. 2d
219, 223 (D. Conn. 2001); United States v. Ibekwe, 891 F. Supp. 587 (M.D. Fla. 1995).

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different regime in Nigeria.2 While Nigeria has had chronic problems with
drug trafficking and has been a country with a poor human rights record and
endemic corruption in its judicial system, it is also a country in which
“domestic and international human rights groups generally operate without
government restriction, investigating and publishing their findings on human
rights cases.” Bureau of Democracy, Human Rights and Labor, U.S. Dep’t
of State, Nigeria Country Reports on Human Rights Practices - 2001 (Mar.
2002), available at http://www.state.gov/g/drl/rls/hrrpt/2001/af/8397.htm.
The respondent has been represented in these proceedings since 1999, and the
importance of providing evidence on the issue of the likelihood of her
detention has been emphasized. On the record before us, we are not satisfied
that she has met her burden of providing adequate evidence to establish that
it is more likely than not that her return to Nigeria would result in her
detention or imprisonment.
In this regard, we do not find it sufficient for the respondent simply to cite
the existence of Decree No. 33 and her unnamed friend’s experiences in
1995. The respondent must provide some current evidence, or at least more
meaningful historical evidence, regarding the manner of enforcement of the
provisions of Decree No. 33 on individuals similarly situated to herself. Cf.,
e.g., Matter of G-A-, supra, at 369-70 (“[W]e find that the respondent would
be subject to close scrutiny upon his return [to Iran] after spending 25 years
in the United States, and he would likely be detained and interrogated as a
result.”); Matter of J-E-, 23 I&N Dec. 291, 299 (BIA 2002) (“It is
undisputed that the respondent will be subject to detention of an indeterminate
length upon his return to Haiti.”).
The respondent’s eligibility for deferral of removal rests upon a finding that
it is more likely than not that she will be identified as a convicted drug
trafficker upon her return to Nigeria; that, as a result, she will be detained on
arrival; that, when detained, she will be held in detention without access to
bail or judicial oversight; that she will be detained for a significant period of
time; and that, as a result of this detention, she will suffer mistreatment that
rises to the level of torture at the hands of prison guards or authorities. Given
the evidence of harsh and life-threatening prison conditions in Nigeria and the
serious drug trafficking problems that Nigerian authorities are attempting to
address, the respondent’s fear of return to her home country is
understandable. On the record before us, however, we find that the
respondent’s case is based on a chain of assumptions and a fear of what might
happen, rather than evidence that meets her burden of demonstrating that it is
more likely than not that she will be subjected to torture by, or with the

2
On May 29, 1999, President Obasanjo was inaugurated to a 4-year term, replacing the
previous military regime in Nigeria.

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acquiescence of, a public official or other person acting in an official capacity
if she is returned to her home country.
Consequently, we agree with the Immigration Judge that the respondent has
not met her burden of demonstrating that it is more likely than not that she
would be tortured by, or with the consent or acquiescence of, government
officials acting under color of law if she is removed to Nigeria.3 Accordingly,
the Service’s motion to reconsider will be granted and the respondent’s
appeal will be dismissed.
ORDER: The motion to reconsider en banc by the Immigration and
Naturalization Service is granted, and our June 8, 2001, decision is vacated.
FURTHER ORDER: The respondent’s appeal is dismissed.
CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg,
Board Member
I respectfully concur in part and dissent in part.
I agree that the respondent bears the burden of proof as articulated in
Matter of J-E-, 23 I&N Dec. 291 (BIA 2002), and Matter of G-A-, 23 I&N
Dec. 366 (BIA 2002), and that our determination of the motion to reconsider
filed by the Immigration and Naturalization Service is governed by those
decisions. See also Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270 (A.G.
2002). Therefore, I concur to that extent with the majority opinion.
However, measured by the proper standard, the evidence reflects that it is
more likely than not that the respondent will be detained and imprisoned
under Decree No. 33 or other existing enforcement practices in Nigeria
because she has been convicted of drug trafficking, and that the treatment she
3
Requiring the respondent to meet her burden of proof by presenting evidence from which
one would conclude that it is more likely than not that she would be subject to torture if
returned to her home country does not convert this burden into a requirement that she establish
the likelihood of torture beyond a reasonable doubt. This is a case in which, in an exercise of
caution, the record was specifically remanded, in part, to address the respondent’s claim that
it is more likely than not that she would be imprisoned if returned to Nigeria. Yet none of the
principal evidence relied upon in the concurring and dissenting opinion of Board Member
Rosenberg is evidence of record. Moreover, the cited news articles would not have changed
the result in this case even if they were matters of record. Two of the three articles make no
specific reference to Decree No. 33 and pertain to the enforcement of Nigerian drug laws
against those charged with possession of drugs or an attempt to smuggle drugs. For example,
one of these articles discusses a woman detained at the airport in Lagos who was ultimately
found to be in possession of heroin with a street value of $100,000. The third article notes
that the controversy surrounding the constitutionality of Decree No. 33 has been laid to rest,
but it does not reference instances of its actual enforcement against individuals in the
respondent’s circumstance. Rather, the article discusses suspected drug peddlers caught in
Nigeria in possession of drugs, including one who was arrested in a second incident of drug
possession after having been “granted bail” by a Nigerian court. As noted above, we have
assumed that Decree No. 33 is enforceable, and we have no question that the Nigerian
Government is actively attempting to address that country’s serious drug trafficking problems.

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will be subjected to once in prison will amount to torture. See National Drug
Law Enforcement Agency (Amendment) Decree 1990, Decree No. 33
(Oct. 10, 1990) (“Decree No. 33”). A fair review of our June 8, 2001,
decision, read in light of our recent precedent, requires denial of the Service’s
motion to reconsider. Accordingly, I dissent.

I. ADJUDICATION OF A MOTION TO RECONSIDER
The majority does not explain why it is appropriate to grant
reconsideration, but simply proceeds to adjudicate the motion and redecide
the appeal in favor of the Service, notwithstanding the fact that a panel of this
Board had fully considered the parties’ positions on appeal and reached a
contrary conclusion. Nevertheless, we are not charged with granting motions
to reconsider willy nilly, but must judge them according to an articulated
standard, no matter which party files the motion.
A motion to reconsider pursuant to 8 C.F.R. § 3.2(b) (2002) is not broadly
available, but is subject to certain restrictions. It is a request that we
reexamine our original decision in light of an additional legal argument, an
aspect of the case which was overlooked, or an intervening change in the law.
See Matter of Cerna, 20 I&N Dec. 399, 402 (BIA 1991), aff’d, 979 F.2d 212
(11th Cir. 1992) (unpublished table decision); see also Board of Immigration
Appeals Practice Manual, § 5.7(a), at 70 (“A motion to reconsider either
identifies an error in law or fact in a prior Board decision or identifies a
change in law that affects a prior Board decision and asks the Board to
re-examine its ruling.”). Although the majority does not identify any one or
more of these bases on which it would be appropriate to grant the Service’s
motion to reconsider, I am inclined to find that reconsideration is appropriate
in light of the intervening decision of the Attorney General in Matter of Y-L-,
A-G- & R-S-R-, supra, as well as our subsequent decisions in Matter of J-E-,
supra, and Matter of G-A-, supra.

II. LIKELIHOOD OF TORTURE BASED ON
EVIDENCE IN THE RECORD
The majority’s analysis turns on the evidence in the record, finding it to be
insufficient to satisfy the respondent’s burden of proof under the “more likely
than not” standard provided in 8 C.F.R. § 208.16(c)(2) (2002). According to
the majority’s reasoning, the respondent’s claim that it is more likely than not
that she will be identified, imprisoned, and subjected to torture upon her
return to Nigeria is little more than a product of her speculation. I disagree.

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A. Imprisonment Under Decree No. 33
In moving for en banc reconsideration of our opinion, the Service contends
that the Board erred in finding that the respondent met her burden of proving
that it is more likely than not that she would be tortured if returned to Nigeria.
The Service appears to challenge the existence of Decree No. 33, which
provides that any Nigerian found guilty of importation of narcotic or
psychotropic drugs or substances abroad, who thereby brings the name of
Nigeria into disrepute, is guilty of an offense and liable to be imprisoned for
5 years. See Decree No. 33, § 12A(2), (3). The Service contends that the
respondent submitted a barely legible copy of section 12A of the Decree and
suggests that it is “unclear” whether the law has been repealed.
Although the majority opinion acknowledges the existence of Decree No.
33, the majority rejects the likelihood that it will be enforced and the
respondent will be imprisoned. The majority also acknowledges that the
respondent testified she would be handed over to drug enforcement officials
upon her forcible return to Nigeria, and that she would be detained and
subject to 5 years’ imprisonment under Decree No. 33, but finds these
expressed concerns to be no more than conjecture. In addition, despite
conceding that Decree No. 33 continues in force, the majority asserts that the
record lacks sufficient evidence to indicate how it is enforced or that it would
be enforced against the respondent. Matter of M-B-A-, 23 I&N Dec. 474, 478
(BIA 2002). According to the majority, the evidence provided by the
respondent offers little more than a “chain of assumptions,” which does not
meet the respondent’s burden of proof. Id. at 479.
However, notwithstanding the majority’s protestations, we may take
administrative notice of the fact that international journalists continue to
report the aggressive enforcement of Decree No. 33. See Matter of S-M-J-,
21 I&N Dec. 722, 728 n.2 (BIA 1997); Matter of R-R-, 20 I&N Dec. 547,
551 n.3 (BIA 1992), and cases cited therein (stating that it is well established
that administrative agencies may take administrative notice of commonly
known facts). First, a recent news report indicates that, as a result of a
Nigerian Federal High Court ruling that the “Decree does not portend double
jeopardy,” the constitutionality of Decree No. 33 has been affirmed.
Sylvester Ebhodaghe, NDLEA arrests 779 suspected drug peddlers, The
Guardian web site (Lagos, Nigeria), Aug. 4, 2000, available at 2000 WL
25038682.
Second, recent news reports confirm that enforcement is even greater under
the present Obasanjo regime. For example, on June 17, 2002, the Xinhua
News Agency reported that “[t]o stem the spread of the menace, the
incumbent administration undertaken by President Olusegun Obasanjo has
been keeping up its fights against drug abuse and trafficking among Nigerians
by all legitimate means.” 110 Drug Traffickers Arrested in Southern

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Nigeria, Xinhua News Agency, June 17, 2002, available at 2002 WL
22619255.
Third, women are not exempt from being targeted and punished as drug
smugglers. As Newsday, Inc. reported in a May 6, 2002, article, the Nigerian
drug enforcement agency charged nearly 100 women with smuggling drugs in
2001, and this year’s arrests even included a 64-year-old grandmother and a
flight attendant for Nigerian Airways. Samson Mulugeta (Africa
Correspondent), Nigerian Drug Rings Using Creative Tactics/Enlist
non-profile carriers to help smuggle heroin, Newsday, Inc., May 6, 2002, at
A12, available at 2002 WL 2741793. These news articles reflect that the
decree exists, that it is actively enforced by the Obasanjo government, and
that it is enforced against women.
B. Torture in Nigerian Prisons
The dissenting opinion of Board Member Schmidt correctly points out that,
within the interpretation set forth in Matter of J-E-, supra, certain prison
conditions amounting to “deliberate vicious acts” may constitute torture, even
when imprisonment results from the imposition of lawful sanctions. Matter
of M-B-A-, supra, at 488 (Schmidt, dissenting). The dissent notes that
Nigerian prison officials, police, and security forces are reported to have
deliberately denied inmates food and medical treatment. The dissenting
opinion stresses that such deliberate mistreatment is not merely negligent or
accidental, but intentional. Id. at 490.
Moreover, the dissent indicates that the Department of State country report
for Nigeria estimates that reputable human rights organizations have reported
that inmates in Nigerian prison custody die daily due to harsh conditions and
the denial of medical treatment. Bureau of Democracy, Human Rights, and
Labor, U.S. Dep’t of State, Nigeria Country Reports on Human
Rights Practices - 2001 (Mar. 2002), available at
http://www.state.gov/g/drl/rls/hrrpt/2001/af/8397.htm (“Country Reports”).
Although the exact number is difficult to obtain because officials fail to keep
proper records, such a report certainly raises legitimate questions concerning
prison conditions and the deliberate mistreatment of certain prisoners.
Rather than consider how such information in the Country Reports bolsters
the respondent’s claim that it is more likely than not that she will be tortured
upon her return to Nigeria, the majority points to the fact that the Country
Reports indicate that human rights groups generally operate without
government restriction in Nigeria. Matter of M-B-A-, supra, at 479.
However, the ability of human rights groups to investigate conditions within
Nigeria does not mean that Decree No. 33 is not enforced, that conditions in
Nigerian prisons do not rise to the level of torture, or that more definitive

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proof of the enforcement of Decree No. 33 should be available to the
respondent.
C. Adjudication Under the “More Likely Than Not” Standard
The United States Court of Appeals for the Eleventh Circuit, in which this
case arises, has recognized that “[i]n making out a claim under CAT, ‘[t]he
burden of proof is on the applicant . . . to establish that it is more likely than
not that he or she would be tortured if removed to the proposed country of
removal.’” Najjar v. Ashcroft, 257 F.3d 1262, 1303 (11th Cir. 2001)
(quoting 8 C.F.R. § 208.16(c)(2) (2001)). The “more likely than not”
standard was addressed in INS v. Stevic, 467 U.S. 407, 430 (1984), as “a
familiar one to immigration authorities and reviewing courts.”
By its terms, this standard requires evidence of a greater than 50% chance
that an event will occur. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431
(1987), in which the Supreme Court differentiated the “more likely than not”
standard from a less stringent standard, ruling that “[o]ne can certainly have
a well-founded fear of an event happening when there is less than a 50%
chance of the occurrence taking place.” Thus, the “more likely than not
standard” requires the applicant to establish the elements of his claim by a
preponderance of the evidence.
The preponderance of the evidence standard, which is applied in most civil
cases, requires a lesser quantum of proof than the “clear and convincing”
standard and is significantly less stringent than the “beyond a reasonable
doubt” standard used in criminal proceedings. Matter of Patel, 19 I&N Dec.
774, 783 (BIA 1988) (citing Addington v. Texas, 441 U.S. 418, 425 (1979)).
The burden of showing something by a preponderance of the evidence
“simply requires the trier of fact ‘to believe that the existence of a fact is
more probable than its nonexistence before [he] may find in favor of the party
who has the burden to persuade the [judge] of the fact’s existence.’” In re
Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring) (quoting F.
James, Civil Procedure 250-51 (1965)). “Unlike other standards of proof
such as reasonable doubt or clear and convincing evidence, the
preponderance standard ‘allows both parties to share the risk of error in
roughly equal fashion’ . . . .” Metropolitan Stevedore Co. v. Rambo,
521 U.S. 121, 137 (1997) (quoting Herman & MacLean v. Huddleston,
459 U.S. 375, 390 (1983)); see also Addington v. Texas, supra, at 423.
In my view, the majority imposes a standard far beyond that required to
qualify for relief under the statutory and regulatory provisions of the
Convention Against Torture. See Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened
for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No.
51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,

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1987; for the United States Apr. 18, 1988) (“Convention Against Torture” or
“Convention”). The majority dismisses proof of Decree No. 33, the
respondent’s status as a convicted drug trafficker, her forcible return to
Nigeria, and evidence of the mistreatment of a similarly situated friend some
years earlier, and it demands either more “current evidence” or “meaningful
historical evidence” before the respondent can establish that it is more likely
than not that she will be identified, imprisoned, and tortured. Matter of
M-B-A-, supra, at 479. If we actually quantify and apply the standard
imposed by the majority, we must conclude that the respondent is charged
with establishing the likelihood of torture beyond a reasonable doubt.
However repugnant noncitizens convicted of criminal offenses may be, that
is not the proper standard.
It is critical to recognize that we do not have the benefit of an accomplished
act to examine. Furthermore, it has long been accepted that “[t]he victim may
not know the exact motivation of his or her persecutor, nor . . . are
persecutors ‘likely to provide their victims with affidavits attesting to their
acts of persecution.’” Karen Musalo, Irreconcilable Differences? Divorcing
Refugee Protections from Human Rights Norms, 15 Mich. J. Int’l L. 1179,
1202 (1994) (quoting Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th
Cir. 1985)). Accordingly, in assessing whether it is more likely than not that
the respondent will face torture in a Nigerian prison once returned to Nigeria,
it is necessary to draw inferences about what may happen in the future and
the reasons it may occur. Matter of S-P-, 21 I&N Dec. 486, 494 (BIA 1996)
(citing INS v. Elias-Zacarias, 502 U.S. 478 (1992)).
The Service argues that the June 8, 2001, Board panel erred in finding that
Nigeria’s prosecution and imprisonment of citizens convicted abroad of drug
offenses is a violation of the Convention Against Torture because such
conviction and imprisonment is a lawful sanction. The Service asserts in
addition that the respondent failed to establish that her treatment in prison
would exceed that which would be considered “inherent or incidental” to
incarceration and thus amount to torture.1
The respondent contends, however, that neither the Immigration Judge nor
the Board had any difficulty reading or understanding the content of Decree
No. 33. In addition, she notes that she testified that she knew of someone
imprisoned pursuant to Decree No. 33 and had provided her attorney with the
document. She also cites to documentary evidence she provided
substantiating her contentions that prison guards raped and beat female
prisoners, and corroborating the deliberate deprivation and withholding of
food and medication by prison officials, all of which would cause a woman
with chronic asthma, such as the respondent, severe mental and physical pain

1
The Service did not file a brief in response to the respondent’s appeal and did not argue any
of these points on appeal, but raised most of these arguments before the Immigration Judge.

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and suffering. She emphasizes that such intentional mistreatment, even if
subject to lawful sanction, defeats the object and purpose of the Convention
to prohibit torture and thereby violates the Convention Against Torture.
In Matter of G-A-, supra, at 369, the Board found that a respondent who
believed he would be “subject to torture or death” in Iran because of a drug
conviction was entitled to protection under the Convention Against Torture.
Our decision relied on evidence that the respondent, who was of a particular
ethnicity, was identifiable, and that conditions in Iranian prisons are so severe
as to amount to torture. Id. at 369-70.
It was the combination of the traits possessed by the respondent in G-A-
and the evidence of widespread use of torture in Iran that led us to conclude
that the respondent was likely to be subjected to torture if deported to Iran.
Matter of G-A-, supra, at 369 (crediting the respondent’s testimony that he
would be identifiable and come to the officials’ attention due to his ethnicity,
many years in the United States, and apparent loss of legal status evidenced
by deportation). We specifically accepted the respondent’s contention that,
once identified, “both his criminal history and his attempt to apply for asylum
in the United States would be discovered, and that he would likely be ‘subject
to torture or death’ as a consequence of ‘being deported with a drug
conviction.’” Id. (emphasis added).
I do not see how either the respondent’s circumstances or conditions in
Nigerian prisons are meaningfully different or warrant a different result. By
virtue of being forcibly removed, the respondent is as identifiable to Nigerian
authorities as was the respondent in Matter of G-A-. Credible news reports
reflect that Decree No. 33 is being actively enforced and that women
smugglers are not immune from its enforcement. It may be that as a general
rule, prison conditions alone would not meet the definition of torture. Matter
of J-E-, supra. However, as the dissent points out, we must focus on the
specific evidence presented in each case rather than relying on blanket
conclusions. The majority fails to do so.
The significant factors that should be measured to determine whether it is
more likely than not the respondent will be tortured if removed to Nigeria are
(1) that the respondent was convicted of drug trafficking; (2) that under
current Nigerian law, which is actively enforced, a person convicted of a drug
offense is subject to imprisonment for a period of 5 years; (3) that
medications are withheld as a means of punishment in Nigerian jails; (4) that
the respondent has asthma and, if imprisoned, has no family to provide such
medication or any other form of sustenance; (5) that the respondent has a
former fiancé who has reason to seek retribution against her; and (6) that rape
and other assaults of female inmates are prevalent in Nigerian jails. The
respondent may satisfy her burden of proof that it is more likely than not she
will be tortured based on the reasonable inferences that can be drawn from
these facts in the record.

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The evidence presented by the respondent is not merely based on her own
fear and speculation, but on solid, uncontradicted evidence of enforcement
efforts against smugglers, who are subjected to horrific prison conditions,
including denial of medication, assault, and rape by prison guards, all
committed by Nigerian Government officials with impunity. The majority’s
rejection of the respondent’s evidence as no more than a “chain of
assumptions,” Matter of M-B-A-, supra, at 479, reveals its imposition of an
improper standard, leading it to erroneously reject evidence that establishes
it is more likely than not the respondent will be tortured if returned to Nigeria.
DISSENTING OPINION: Paul Wickham Schmidt, Board Member , in
which John Guendelsberger, Noel Ann Brennan, Cecelia M. Espenoza
and Juan P. Osuna, Board Members, join
I respectfully dissent.

I. ISSUE
I agree with Board Member Rosenberg’s conclusion that the respondent has
shown that it is more likely than not that she will be imprisoned under Decree
No. 33 upon return to Nigeria. See National Drug Law Enforcement Agency
(Amendment) Decree 1990, Decree No. 33 (Oct. 10, 1990) (“Decree No.
33”). I write separately to address the question the majority avoids: whether
the respondent more likely than not will be tortured while in prison. I find
that she will be tortured.

II. ANALYTICAL FRAMEWORK
A. Torture Defined
Matter of J-E-, 23 I&N Dec. 291 (BIA 2002), describes a five-part test for
determining whether an act of mistreatment rises to the level of “torture”
under 8 C.F.R. § 208.18(a)(1) (2002) and the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against
Torture” or “Convention”). Those five elements are that the act must:
(1) cause severe physical or mental pain or suffering; (2) be intentionally
inflicted; (3) be inflicted with a proscribed purpose; (4) be inflicted by, at the
instigation of, or with the acquiescence or consent of a public official who has
custody or physical control of the victim; and (5) not arise from lawful
sanctions.

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Applying this definition, we found in Matter of J-E-, supra, that acts such
as indefinite detention, inadequate prison nutrition, sporadic light beatings
with fists and sticks, and other acts fairly characterized as police brutality do
not rise to the level of torture.
On the other hand, we found that deliberate vicious acts such as burning
with cigarettes, choking, hooding, kalot marassa (severe boxing of the ears),
and electric shock may constitute torture. Matter of J-E-, supra, at 302.
Additionally, in Matter of G-A-, 23 I&N Dec. 366 (BIA 2002), we found that
torture includes suspension for long periods of time in confined positions,
sleep deprivation, severe repeated beatings with cables or other instruments
on the back and soles of the feet, beatings about the ears resulting in full or
partial deafness, and punching in the eyes likely to result in full or partial
blindness.
B. Prison Conditions As Torture
In Matter of J-E-, supra, we effectively established a presumption that
mistreatment in prison is not torture under the Convention Against Torture,
but merely “cruel, inhuman or degrading treatment”—reprehensible, worthy
of condemnation, but not a basis for relief.
To rebut this presumption, a respondent who is likely to be imprisoned
upon removal must show that: (1) “torture” exists in the foreign prison
system; and either (2) it is probable that any prisoner detained in the system
will be tortured, or (3) he or she possesses individual characteristics making
it more likely than not he or she will be tortured.
In Matter of J-E-, supra, the respondent showed that torture exists in the
Haitian prison system, but he was unable to satisfy tests (2) or (3). His claim
was therefore unsuccessful.
By contrast, in Matter of G-A-, supra, the respondent proved that torture
exists on a widespread basis in the Iranian prison system. But he also
established that, as a Christian of Armenian descent who spent 25 years in the
United States and was convicted of a drug violation in this country, he had a
combination of individual traits that made it likely that the Iranian
Government would mark him for torture in prison. We therefore granted him
deferral of removal under the Convention Against Torture.

III. ANALYSIS
A. Torture Exists in the Nigerian Prison System
The most recent Department of State country report on Nigeria describes
the abuses that are rampant in the Nigerian prison system. Bureau of
Democracy, Human Rights, and Labor, U.S. Dep’t of State, Nigeria Country
Reports on Human Rights Practices - 2001 (Mar. 2002), available at

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http://www.state.gov/g/drl/rls/hrrpt/2001/af/8397.htm (“Country Reports”).
At least one aspect of that abuse, intentional withholding of needed medical
treatment for improper purposes, which is relevant to this respondent’s
situation, constitutes “torture” under the test set forth in Matter of J-E-,
supra.
The respondent is a chronic asthmatic with no family in Nigeria who could
provide food or proper medical treatment while she is in jail. The Country
Reports state that “[p]rison officials, police, and security forces often denied
inmates food and medical treatment as a form of punishment or to extort
money from them.” Country Reports, supra, at 6 (emphasis added).
That report goes on to state the following:
Harsh conditions and denial of proper medical treatment contributed to the deaths of
numerous prisoners. A reputable human rights organization estimated in 1999 that at least
one inmate died per day in the Kiri Kiri prison in Lagos alone. According to the Prisoners
Rehabilitation and Welfare Action (PRAWA) a nongovernmental organization (NGO), dead
inmates promptly are buried on the prison compounds, usually without notifying their
families. A nationwide estimate of the number of inmates who die daily in the country’s
prisons is difficult to obtain because of poor record keeping by prison officials. PRAWA
and other NGO’s alleged that prison conditions were worse in rural areas than in urban
districts.

Id. (emphasis added).
Clearly, death caused at least in part by intentional withholding of medical
treatment for improper purposes is common in the Nigerian prison system.
The extent of the problem probably is understated because of the difficulty
in obtaining accurate documentation from the Nigerian system.
The Country Reports also establish that, with respect to torture of
prisoners, “[i]n most cases, neither [sic] the state anticrime task forces, the
police, nor the armed forces were held accountable for excessive, deadly use
of force or the death of persons in custody.” Country Reports, supra, at 1
(emphasis added). Thus, there generally is no accountability for acts of
torture committed by Nigerian Government officials.
The Country Reports also establish that Nigeria follows traditional Islamic
law and that discrimination and violence against women is an endemic
problem. Id. at 17, 18. Women often are imprisoned with men. Id. at 7.
The Country Reports also make clear that those without family to support
and feed them while in prison face a particularly high risk of death or
mistreatment. Id. at 6.
The intentional withholding of medical care for the purpose of extortion or
punishment satisfies the five-part definition of torture set forth in Matter of
J-E-, supra. First, intentional denial of medical care is a vicious act intended
to cause extreme physical and mental pain and suffering and, as shown in the
Country Reports, all too often results in death. The mental anguish is
increased by the victims’ knowledge that, upon death, they will be buried in

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unmarked communal graves within the prison compound without notification
to anyone.
Second, mistreatment inflicted for extortion or punishment is obviously
intentional, not accidental, negligent, or merely the natural consequence of
living in a poor country. Third, withholding medical treatment for purposes
of extortion or punishment constitutes an impermissible “proscribed purpose.”
Fourth, this mistreatment is carried out by government prison officials
having both official custody and physical control of the victims. The
Nigerian Government clearly knows of its occurrence, because the public
reports of our own State Department and reputable nongovernmental
organizations (“NGOs”) reflect that such official mistreatment occurs.
Finally, while it is possible that Nigeria’s jailing of foreign-convicted drug
offenders, by itself, is a “lawful sanction” under Matter of J-E-, supra,
intentionally denying such prisoners needed medical treatment for reasons of
extortion and punishment is not a lawful sanction. Indeed, “torture” can never
be a “lawful sanction” under the terms of 8 C.F.R. § 208.18(a)(3).
B. Respondent’s Personal Characteristics Make Torture Likely
The respondent is a woman, suffering from chronic asthma, without family
to support and assist her in Nigeria, returning from the United States with a
drug conviction. Decree No. 33, discussed by the majority, shows, at a
minimum, that the Nigerian Government has a particular interest in those
returning with foreign drug convictions.
The respondent’s combination of personal traits places her in a particularly
high-risk category to suffer torture through the intentional denial of medical
treatment for her chronic asthma by Nigerian prison officials bent upon
improperly punishing or extorting her. Her situation is therefore closer to the
individualized claim of the successful applicant in Matter of G-A- than it is
to the unsuccessful applicant in Matter of J-E- who presented a more
“generic” claim. Consequently, I find that the respondent more likely than not
will be tortured if imprisoned in Nigeria.
IV. CONCLUSION
For the foregoing reasons, I conclude that the respondent more likely than
not will be tortured by intentional, malicious withholding of needed medical
care when imprisoned upon her return to Nigeria. I therefore would grant her
deferral of removal under the Convention Against Torture and would deny the
motion to reconsider. Consequently, I respectfully dissent.

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