NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 20-3566 ___________

ADEBISI TAFIKE ADIGUN, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A099-029-937) Immigration Judge: Alice Song Hartye ____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) August 18, 2021

Before: JORDAN, MATEY and NYGAARD, Circuit Judges

(Opinion filed: August 18, 2021) ___________

OPINION* ___________

PER CURIAM

Adebisi Tafike Adigun, proceeding pro se, petitions for review of an order of the

Board of Immigration Appeals (BIA) dismissing his appeal from the Immigration Judge’s

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. (IJ) order denying his application for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). For the reasons that follow, we will deny

the petition.

Adigun, a native and citizen of Nigeria, entered the United States as a

nonimmigrant in 2002. His status was adjusted to an F-1 nonimmigrant student in

January 2003.1 In 2011, Adigun was convicted of conspiracy to possess with intent to

distribute cocaine and cocaine base, possession with intent to distribute cocaine and

cocaine base, and possession with intent to distribute cocaine, in violation of

(a)(1) & 846. He was then charged with removability for having been convicted

of a drug trafficking aggravated felony, see

(a)(2)(A)(iii). At a hearing

before the immigration judge (IJ), he conceded the drug trafficking charge and his

removability as an aggravated felon. Adigun filed an I-589 application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”). His

CAT claim was predicated on his assertion that he would be subject to torture in Nigeria

at the hands of the police or the community because of his sexual orientation.

Adigun and his brother testified at an immigration hearing. The IJ noted

inconsistencies and omissions in Adigun’s application that caused her “significant

hesitation,” but she did not make an adverse credibility determination. She concluded

that Adigun was convicted of an aggravated felony and, therefore, he was statutorily

1 Adigun was charged with removability in 2008 based on his failure to maintain compliance with the conditions of his nonimmigrant status under

. The immigration proceedings were administratively terminated in August 2010 when Adigun was taken into custody on criminal charges. 2 ineligible for asylum and cancellation of removal. See

(b). The IJ

further found that Adigun’s drug trafficking offense constituted a “particularly serious

crime,” precluding his eligibility for withholding of removal under either the INA or the

CAT; he was potentially eligible only for deferral of removal under the CAT. See

(b)(2)(A)(ii), (B)(i);

(b)(3);

(d). She

denied that claim after determining that Adigun had not suffered past torture, and that the

objective evidence did not support Adigun’s subjective belief that he would be tortured

on account of his sexuality should he return to Nigeria.

On appeal, the Board of Immigration Appeals (BIA) concluded that Adigun

waived the issue of whether he had been convicted of an aggravated felony or a

“particularly serious crime” because he did not raise it in his brief. The Board then

expressed its agreement with the IJ that Adigun did not establish eligibility for relief

under the CAT. This petition for review ensued.

We have jurisdiction to review final orders of the BIA pursuant to

. Because Adigun is removable by virtue of his conviction for an aggravated

felony, our jurisdiction is generally limited to questions of law and constitutional claims,

see

§ 1252(a)(2)(D), although we retain jurisdiction to review factual challenges to the

CAT decision, see Nasrallah v. Barr,

(2020). We review the

agency's findings under the substantial-evidence standard pursuant to which “[t]he

agency’s findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.”

(citation omitted).

3 To establish a claim for deferral of removal, Adigun had to show that he is “more

likely than not” to be tortured “by or at the instigation of or with the consent or

acquiescence of” a Nigerian public official.

(c)(2); § 1208.18(a)(1);

Sevoian v. Ashcroft,

(3d Cir. 2002). The likelihood of torture

consists of two parts: a factual component (“what is likely to happen to the petitioner if

removed”) and a legal one (“does what is likely to happen amount to the legal definition

of torture”). Kaplun v. Att’y Gen.,

(3d Cir. 2010). Government

acquiescence is similarly composed of a factual (“how public officials will likely act in

response to the harm the petitioner fears”) and legal component (“whether the likely

response from public officials qualifies as acquiescence”). Myrie v. Att’y Gen.,

(3d Cir. 2017).

Adigun argues that the Agency either improperly weighed, ignored, or failed to

meaningfully engage with certain evidence. The appropriate weight afforded to an

alien’s evidence is largely a matter of discretion. See Xiao Ji Chen v. U.S. Dep’t of

Justice,

(2d Cir. 2006). And although the Agency has “a duty to

explicitly consider any . . . evidence submitted by an applicant that materially bears on

his claim,” Zheng v. Att’y Gen.,

(3d Cir. 2008) (citation omitted), it

need not “expressly parse or discuss each piece of evidence.” Liem v. Att’y Gen.,

(3d Cir. 2019). As discussed below, the Agency meaningfully considered

Adigun’s evidence and did not err in determining that it was insufficient to establish

eligibility for CAT relief.

4 Adigun argues that the Agency erred in concluding that he had not shown that the

Nigerian Government would likely acquiesce to his torture by non-state actors. However,

substantial evidence supports the Agency’s determination that Adigun was not more

likely than not to face torture. The Agency considered the Nigeria 2018 Human Rights

Report (“the Report”) prepared by the U.S. Department of State which discussed the

Same Sex Marriage Prohibition Act (SSMPA), a law passed in 2014 prohibiting same sex

marriage and criminalizing “all forms of activity supporting or promoting” gay rights.

A.R. at 303-351. Adigun also submitted a New York Times article describing a brutal

attack in 2014 by a mob on five young gay men, who were then dragged to a police

station where the officers “further beat and insulted them.” A.R. at 382. Both the IJ and

the BIA acknowledged that the country conditions evidence showed that, in the wake of

SSMPA’s passage, LGBTI individuals faced increased violence and harassment. IJ Op.

at 13-14; BIA at 3. The Agency also noted that, according to the Report, “the law had

become a tool used by police and members of the public to legitimize human rights

violations against LGBTI persons.” IJ Op. at 13; BIA at 3. As Adigun notes, the Report

states that these violations included “torture, sexual violence, arbitrary detention,

extortion, and violations of due process rights.” A.R. at 343. But as the Government

points out, the Report did not indicate that “these rights violations have occurred to any

significant degree,” and the New York Times article describes only instances of mob

violence prompted by SSMPA’s passage. Gov’t’s Br. at 33. Indeed, the report does not

detail any instances of torture or other significant human rights violations.

5 The Agency also considered his brother’s testimony that their uncle “is believed to

have been kidnapped and killed due to his sexuality.” Appellant’s Br. at 13. The IJ

determined that his brother credibly testified, and that he and Adigun “believe this to be

true.” IJ Op. at 13. However, absent any evidence in the record to support the testimony,

the BIA found no clear error with the IJ’s decision to discount it. BIA Op. at 2. After

considering all the evidence, the Agency determined that Adigun likely would face

“discrimination and mistreatment” based on his sexuality, but that the harm would not

rise to the level of torture. IJ Op. at 14; BIA Op. at 3. The record does not compel a

different result.

Substantial evidence also supports the Agency’s conclusion that Nigerian

authorities would not acquiesce to any torture Adigun claimed he would face. Contrary

to Adigun’s claim, the Agency did not base its acquiescence determination on the “mere

fact” that law enforcement accepted a complaint from his father regarding threats to

Adigun’s life. Appellant’s Br. at 12. Rather, it found, “based on the overall record,” that

he had not “shown that the Nigerian government will acquiesce to torturous acts against

him.” BIA Op. at 3. The Agency did not abuse its discretion in discounting affidavits

written by Nigerian law enforcement officials indicating that Adigun would be tortured

by the public or by the authorities; the officials were unavailable for questioning, and

although they were purportedly from different parts of Nigeria, the affidavits were

identical. See A.R. at 371-72. Moreover, Adigun admitted at the hearing that the

affidavits may have been prepared by a lawyer. A.R. at 219-21. In considering the

country conditions evidence, the IJ concluded only that Adigun “may be . . . possibly

6 arrested,” not that he would be imprisoned. IJ Op. at 14. The BIA affirmed,

emphasizing, as the IJ did, that the SSMPA-based arrests of LGBTI individuals have

resulted in reduced or dismissed charges.2 Because the record does not compel a contrary

result, the Agency was not required to consider what would likely happen to Adigun were

he to be imprisoned.

Based on the foregoing, we will deny the petition for review.

2 Adigun argues that the Agency failed to give sufficient weight to the fact that in 12 northern states in Nigeria, individuals convicted of engaging in same-sex activities are subject to execution by stoning. But, according to the 2018 Report, appellate courts consistently overturned stoning sentences. A.R. at 309, 343.

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