18-2588-ag Omorodion v. Garland

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 29th day of November, two thousand twenty-two. 4 5 PRESENT: RAYMOND J. LOHIER, JR., 6 SUSAN L. CARNEY, 7 ALISON J. NATHAN, 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 NEKPEN NIL OMORODION, AKA NEKREN 11 OMORODION, 12 13 Petitioner, 14 15 v. 18-2588-ag 16 17 MERRICK B. GARLAND, UNITED STATES 18 ATTORNEY GENERAL, 19 20 Respondent. 21 ------------------------------------------------------------------ 22 1 FOR PETITIONER: THOMAS E. MOSELEY, Law 2 Offices of Thomas E. Moseley, 3 Newark, NJ 4 5 FOR RESPONDENT: ROBERT PAUL COLEMAN, III, 6 Trial Attorney, James A. 7 Hurley, Attorney, Office of 8 Immigration Litigation, Civil 9 Division, United States 10 Department of Justice, 11 Washington, DC 12 13 UPON DUE CONSIDERATION of this petition for review of a Board of

14 Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED,

15 AND DECREED that the petition for review is GRANTED and the case is

16 REMANDED for additional proceedings consistent with this order.

17 Petitioner Nekpen Nil Omorodion, a native and citizen of Nigeria, seeks

18 review of a July 30, 2018 decision of the BIA vacating a February 12, 2018

19 decision of an Immigration Judge (“IJ”) granting deferral of removal under the

20 Convention Against Torture (“CAT”). We assume the parties’ familiarity with

21 the underlying facts and the record of prior proceedings, to which we refer only

22 as necessary to explain our decision to grant the petition.

23 In 2014 Omorodion, a permanent resident of the United States, was

24 convicted in the Middle District of Pennsylvania of conspiracy to commit wire

2 1 fraud in violation of

and 1343. Omorodion had been complicit

2 in a scheme that used Moneygram and Western Union computer systems to

3 process and transmit money received in fraudulent telemarketing to accomplices

4 across the world. Omorodion testified as a government witness against one of

5 her co-defendants, Itohan Agho-Allen. Agho-Allen was convicted and

6 sentenced to 180 months in prison and ordered to pay restitution in the amount

7 of $2,371,668. Omorodion pleaded guilty to the conspiracy charge and was

8 sentenced principally to a term of 30 months’ imprisonment after the

9 Government successfully moved for a downward departure from the applicable

10 Sentencing Guidelines range in light of her cooperation. She was also ordered

11 to pay restitution in the amount of $418,365.42.

12 In August 2016, after Omorodion finished serving her custodial sentence,

13 the Government filed a Notice to Appear charging Omorodion with removability

14 under

(a)(2)(A)(iii) and 1227(a)(2)(A)(i) on account of her felony

15 conviction. Omorodion conceded the charges of removability and applied for

16 withholding of removal, see

, and deferral of removal, see

17 § 1208.17, under the CAT.

18 In her application for CAT relief, Omorodion stated that she feared that

3 1 “Agho-Allen and her associates” would kill her if she returned to Nigeria and

2 that Nigerian authorities would not protect her given their susceptibility to

3 corruption and bribery. Cert. Admin. R. 298. During her removal hearing,

4 Omorodion offered testimony in support of that statement. She also testified

5 that Agho-Allen’s mother communicated threats to Omorodion’s family in

6 Nigeria and that Agho-Allen’s family is very wealthy and influential in that

7 country. She later provided additional evidence in support of those statements,

8 as well as more evidence that the Nigerian police are susceptible to bribery. The

9 IJ granted Omorodion’s application for deferral of removal under the CAT and,

10 after an initial remand by the BIA, reaffirmed that decision. In July 2018 the

11 BIA vacated the IJ’s grant of CAT relief and ordered Omorodion removed,

12 concluding that Omorodion did not show that she would suffer torture or that

13 public officials would acquiesce in her torture.

14 Where the BIA does not adopt the IJ’s decision, we review the BIA’s

15 decision as the final agency decision. See Yan Chen v. Gonzales,

,

16 271 (2d Cir. 2005). We review CAT orders for both factual and legal errors.

17 Nasrallah v. Barr, 140. S. Ct. 1683, 1692 (2020). While we review de novo all

18 questions of law, including the application of law to facts, see Scarlett v. Barr, 957

4

, 326 (2d Cir. 2020), we apply the “substantial evidence” standard in our

2 review of the agency’s factual findings, see Islam v. Gonzales,

(2d

3 Cir. 2006).

4 First, Omorodion argues that the BIA mischaracterized and ignored key

5 evidence. We agree. While the agency “does not commit an error of law every

6 time an item of evidence is not explicitly considered or is described with

7 imperfect accuracy,” it errs when it “totally overlook[s]” or “seriously

8 mischaracterize[s]” material evidence. Mendez v. Holder,

(2d

9 Cir. 2009) (quotation marks omitted). Here, the BIA failed to address a key

10 component of an affidavit submitted by Ajibola Godswill Ohushina,

11 Omorodion’s half-brother. In addition to corroborating Omorodion’s account

12 of a threatening visit to her mother’s house by Agho-Allen’s mother — which is

13 the only purpose for which the BIA considered Ohushina’s affidavit — the

14 affidavit conveyed Ohushina’s knowledge that Agho-Allen’s mother “has the

15 resources to hurt and even kill [his] sister if she were to return to Nigeria.”

16 Cert. Admin. R. 242; see also id. at 243 (“I know that there have been threats

17 against [my sister’s] life . . . .”). The affidavit therefore supports Omorodion’s

18 statement in her CAT application that Agho-Allen’s “family directed numerous

5 1 threats to [her] family and stated that they will kill [her].” Id. at 298. The BIA

2 erred when it ignored this portion of Ohushina’s affidavit without explanation.

3 See Ojo v. Garland,

(2d Cir. 2022) (finding “error in the agency’s

4 determination that [the petitioner] was not more likely than not to suffer torture

5 without any apparent consideration of material evidence or, at a minimum, by

6 failing to provide reasoning as to why such evidence was rejected if it was

7 considered”); Poradisova v. Gonzales,

(2d Cir. 2005) (“[W]e

8 require a certain minimum level of analysis from the IJ and BIA opinions . . . and

9 indeed must require such if judicial review is to be meaningful.”).

10 The BIA also erred by failing to apply the clear error standard in its review

11 of the IJ’s “predictive finding that [Omorodion] would suffer torture by or with

12 the acquiescence of the Nigerian government.” Cert. Admin. R. 5; see 8 C.F.R.

13 § 1003.1(d)(3)(i). As the Government acknowledges, see Oral Arg. Recording at

14 10:08-34, an IJ’s predictive finding constitutes a factual finding, which “may be

15 rejected under clearly erroneous review as speculative only in those instances

16 where the IJ lacks an adequate basis in the record for the determination that a

17 future event will, or is likely to, occur.” Hui Lin Huang v. Holder,

,

18 134 (2d Cir. 2012). The BIA determined that the IJ’s reliance on testimony from

6 1 a U.S. Postal Inspector regarding the widespread attention that Omorodion’s

2 cooperation received in Nigeria and “reports addressing governmental abuses

3 and corruption in Nigeria,” Cert. Admin. R. 4, did not support a conclusion that

4 “Nigerian authorities have any interest” in Omorodion, id. at 5. The BIA erred

5 insofar as it rested this determination on what it described as Omorodion’s fear

6 of torture by Nigerian authorities or the Nigerian authorities’ “interest” in her,

7 rather than her fear of torture by Agho-Allen’s family, which she asserted had

8 the means to ensure that Nigerian authorities would corruptly turn a blind eye if

9 she were tortured by the family. Id. at 5. Omorodion supported her assertion

10 of corruption by offering country conditions reports establishing Nigerian law

11 enforcement’s susceptibility to bribes by wealthy and powerful families like

12 Agho-Allen’s. The BIA erred as a matter of law when it overlooked such

13 evidence and rejected the IJ’s predictive finding.

14 To summarize, we grant the petition and remand because the BIA

15 overlooked material components of the record and misconstrued others. See

16 Xiao Kui Lin v. Mukasey,

(2d Cir. 2009). Should the BIA

17 vacate the IJ’s grant of CAT relief on remand, it should explain where it identifies

18 clear error in the IJ’s factfinding based on the totality of the record. If any

7 1 vacatur is not due to clear error, the BIA must otherwise “provide sufficient

2 explanation to permit proper appellate review” of its decision. Hui Lin Huang,

3

.

4 For the foregoing reasons, the petition for review is GRANTED, the BIA’s

5 decision is VACATED, and the case is REMANDED for further proceedings

6 consistent with this order. All pending motions and applications are DENIED

7 and stays VACATED.

8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk of Court

8