Igiebor v. Barr, 981 F.3d 1123

Background:

Eseos Igiebor, a Nigerian national who became a lawful permanent resident in 2004, pleaded guilty in 2014 to aggravated identity theft and conspiracy to commit wire/mail/bank fraud and was sentenced to 96 months and restitution.
DHS initiated removal proceedings in 2018; Igiebor conceded removability based on his aggravated-felony convictions but sought deferral of removal under the Convention Against Torture (CAT), asserting he would be tortured in Nigeria because he is homosexual.
At his IJ hearing (pro se), Igiebor testified to past torture in Nigeria (2006) and submitted corroborating documents; the IJ found inconsistencies between his application, testimony, and evidence, excluded or discounted certain foreign documents for lack of authentication, and held Igiebor not credible.
The BIA affirmed, concluding the IJ’s adverse credibility finding was supported by the record and, given scant corroboration, Igiebor failed to prove it was more likely than not he would be tortured if returned.
Igiebor was removed to Nigeria while this petition was pending; the court held the case was not moot because ICE’s Facilitation of Return Policy could permit his return if he prevailed, and the Supreme Court’s Nasrallah decision foreclosed application of 8 U.S.C. § 1252(a)(2)(C)–(D) to CAT denials.
On the merits the Tenth Circuit denied the petition: it found no reversible error in the IJ’s evidentiary rulings or credibility determination and held the BIA’s decision was supported by substantial evidence.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Exclusion/authentication of foreign documents	IJ wrongly excluded police and medical records under 8 C.F.R. §1287.6 and should have accepted alternative means of authentication	Documents lacked required consular authentication and, even if admitted, were unreliable	Even assuming error, IJ considered the excluded documents and found them unpersuasive; BIA reasonably adopted IJ’s analysis—no reversible error
Due process — opportunity to explain inconsistencies	IJ denied meaningful chance to explain inconsistencies; IJ should have assisted pro se petitioner to develop case	Petitioner failed to exhaust any due process claim before the BIA; IJ provided opportunities to explain and has no duty to act as advocate	Claim unexhausted; on merits IJ afforded meaningful opportunity and had no obligation to act as petitioner’s advocate—no due process violation
Credibility standard and adverse credibility finding	IJ/BIA applied an overly stringent standard; adverse credibility was erroneous	IJ and BIA applied correct statutory "totality of circumstances" test; inconsistencies undermined credibility	Adverse credibility is supported by substantial evidence; petitioner failed to carry CAT burden once credibility discounted
Jurisdiction / mootness and §1252 bar	Removal renders petition moot and §1252 bars review of fact issues	ICE Facilitation Policy can enable return; Nasrallah holds §1252(a)(2)(C)–(D) does not bar review of CAT denials	Case not moot (ICE policy may permit return); Nasrallah removes §1252 factual-review bar—court has jurisdiction to decide merits

Key Cases Cited

Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (§1252(a)(2)(C)–(D) does not preclude judicial review of CAT denials)
Ismaiel v. Mukasey, 516 F.3d 1198 (10th Cir. 2008) (CAT relief is mandatory if criteria met)
Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005) (standard: de novo review of BIA legal conclusions; substantial evidence for facts)
Uanreroro v. Gonzales, 443 F.3d 1197 (10th Cir. 2006) (credibility determinations are factual and reviewed for substantial evidence)
Del Cid Marroquin v. Lynch, 823 F.3d 933 (9th Cir. 2016) (ICE facilitation policy can prevent mootness for removed petitioners)
Mathews v. Eldridge, 424 U.S. 319 (1976) (framework for procedural due process balancing)
Diallo v. Gonzales, 447 F.3d 1274 (10th Cir. 2006) (upholding adverse credibility when applicant fails to satisfactorily explain inconsistencies)