Kingsley DAYO, Also Known as Kingsley Pedersoli, Also Known as Dayo Kingsley, Also Known as Kingsley Dayo Pedersoli, Also Known as Kingsley J. Dayo, Also Known as Darryl Lamont Gates, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.
No. 11-60524
United States Court of Appeals, Fifth Circuit.
July 12, 2012.
679 F.3d 653
Summary Calendar.
Jennifer Parker Levings, Sr. Lit. Counsel, Dana Michelle Camilleri, Tangerlia Cox, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.
JERRY E. SMITH, Circuit Judge:
Proceeding at all times pro se, Kingsley Dayo petitions this court to review the denial by the Board of Immigration Appeals (“BIA“) of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT“), based on the government‘s violation of confidentiality in revealing to the Nigerian consulate that he had applied for asylum. This court has never addressed the proper relief for such a violation, but we now join the Second and Fourth Circuits in allowing the applicant a separate claim for relief based on the breach of confidentiality. Because the BIA considered this separate claim, and because its denial of relief on that ground is supported by substantial evidence, we deny the petition for review.
I.
Dayo is a citizen and native of Nigeria who the Department of Homeland Security (“DHS“) claims arrived in the United States in November 2004 without being admitted or paroled after inspection. He appeared before an immigration judge (“IJ“) in October 2009 and denied the allegation, claiming he had arrived in 1995 on a J-1 visa. DHS presented evidence that in 2004 Dayo had used a passport and New York birth certificate in the name of Darryl Lamont at Miami International Airport, but when his true identity was discovered, he was detained for an outstanding warrant for a New York weapons offense. With this evidence in the record and no evidence supporting Dayo‘s claim to have entered legally under a J-1 visa, the IJ found that the DHS‘s allegation appeared correct and ordered Dayo‘s removal.
Dayo applied for asylum, withholding of removal, and protection under the CAT. He claimed he left Nigeria because he was a member of the Movement for the Survival of the Ogoni People (“MOSOP“), which protests the Nigerian government‘s policy of forcing Ogoni out of the land so oil companies can drill there. Dayo said his father was the deputy director of the group, and his mother was a member. Before his parents fled, he was arrested and tortured to get a confession and to find out where the MOSOP members were located. He was released when MOSOP bribed the police, and he came to the United States. He also claims his mother was killed in 2003 when she returned to Nigeria. He had no documentary evidence to support his claims and no knowledge of his father‘s location.
The IJ decided that Dayo had not proved his case for asylum: His testimony was not credible enough or detailed enough, and the application was untimely. For the same lack of evidence, the IJ denied relief under the CAT. The BIA affirmed that conclusion on appeal. Additionally, the BIA denied Dayo‘s motion to reopen the case to admit affidavits executed by his friends about human rights in Nigeria, despite Dayo‘s argument that his detention and lack of familiarity with United States’ laws prevented him from getting the evidence earlier.
Dayo petitioned this court for review. We noted that the IJ had held that Dayo‘s asylum application was not timely, so we could not review it. We also decided that there was substantial evidence supporting the IJ‘s adverse credibility finding. Dayo v. Holder, 413 Fed. Appx. 745, 745-46 (5th Cir. 2011) (per curiam).
Dayo then raised, in the BIA, a new argument for asylum based on a breach of
Dayo contends that DHS officer Leonard Davis gave the Nigerian Consulate a copy of Dayo‘s asylum application when forwarding to the consulate the immigration paperwork needed to get Dayo a travel document. Dayo claims to know that because a Ms. Helen at the consulate told him so over the phone. Davis denied that he included a copy of the asylum application; he testified that he overheard the phone conversation between Dayo and Helen, and they did not discuss the application. Instead, DHS believes the Nigerian consulate learned about the application because Davis did not redact a footnote in the removal order that noted that Dayo‘s application for asylum was untimely.
The IJ found Davis more credible. Dayo filed for asylum based on the breach of confidentiality. The IJ concluded that Dayo had failed to show past and future persecution because of his membership in MOSOP or that MOSOP members were persecuted now, and he did not establish that asylum-seekers were persecuted.
The BIA affirmed the IJ‘s decision. First, it found Dayo‘s claims of past persecution for MOSOP membership time-barred and his testimony not credible. Considering Dayo‘s claim of future persecution, the BIA affirmed the finding that Dayo had not established a well-founded fear based on the confidentiality breach, because he had failed to show that asylum-seekers were persecuted. The BIA also agreed that the letters Dayo submitted allegedly from his grandfather in Nigeria and a Mr. Ese, who had been deported to Nigeria previously, did not provide enough objective evidence to support his claims that he would be persecuted. Ese‘s letter contained merely bald accusations, his signature did not match between the two documents submitted, and Dayo‘s grandfather‘s letter saying the police were looking for Dayo did not claim it was because he had applied for asylum.
II.
Although this circuit has never addressed the appropriate relief for a violation of
Because some countries persecute persons who sought asylum after repatriation, an asylum-seeker whose confidentiality was violated needs to be able to seek relief if the country to which he is returning will so persecute him. Vacating automatically, however, is improper. Some countries will not persecute unsuccessful asylum-seekers, so the revelation of their failed asylum claim does not harm them. If the IJ and BIA did not feel there was any danger in sending an applicant back before the breach, and the breach does not create any new danger, there is no reason he should not still be removed. Therefore, we join the Second and Fourth Circuits in concluding that although a breach of confidentiality caused by violating
III.
Because the BIA correctly reopened the matter, we must determine whether, considering the violation of
The BIA affirmed the IJ‘s determination that Dayo was not credible. Dayo‘s only evidence that he suffered past persecution came from his own testimony, so if the BIA‘s determination that he lacked credibility is supported, Dayo does not have enough evidence to show past persecution. A court can rely on inconsistencies to make adverse credibility determinations if the totality of the circumstances shows the applicant is not credible. Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009).
Dayo made numerous inconsistent statements. He told an immigration official he was born in Benin City but later told Ms. Helen at the consulate that he did not know where he was from in Nigeria. His statement at Ryker‘s Island also answered “no” to whether he feared persecution if he returned to Nigeria. Furthermore, he talked about being afraid to go to Nigeria because he was previously targeted there at a teenager, but he also sent letters to the Nigerian consulate asking not to be deported there because he had no family ties and had left at a young age. It was odd he would be so afraid of Nigeria but would correspond with the consulate through letters in matters even beyond just his proceedings in court, expressing independent reasons not to be sent back and drawing additional attention to himself. Moreover, in a letter to the Governor of New York asking for a par-
Finally, the documents Dayo submitted to support his story were found to be suspicious. The letters he tendered did not include envelopes to show they were mailed from Nigeria. Also, the signatures on Ese‘s affidavit and letter are substantially different. The record contained substantial evidence showing Dayo lacked credibility.2
Having no evidence to support his claims of prior persecution, and with the IJ‘s ruling that he was not credible supported by substantial evidence, Dayo needed to show a well-founded fear of future persecution by demonstrating a subjective fear of persecution that is also objectively reasonable. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001). None of the pieces of evidence submitted supports an argument that Nigeria persecutes those who seek asylum. Nigeria cooperated with the UN High Commissioner for Refugees and other organizations that help refugees and asylum seekers, suggesting the country does not persecute those seeking asylum.
Furthermore, Dayo lacked supporting evidence, because the letters he submitted were not trustworthy. He could not prove that the letter about police looking for him came from his grandfather in Nigeria, and although Dayo testified that before 2010, the police had last visited his grandfather in 2008, the letter said the last visit from police was in 1998. Additionally, although Ese said that after the United States sent him back, the Nigerian Government asked whether he had sought asylum, he provides no evidence that he would have suffered if he had said he had done so. Ese‘s concerns about repercussions are unsubstantiated, and he does not say harm befell any other failed asylum-seekers. Finally, the Amnesty Report that Dayo relies on makes no mention of any governmental abuse faced by failed asylum-seekers. Substantial evidence supports the BIA‘s determination that Dayo failed to show a well-founded fear of persecution.
Overall, the BIA‘s decision that Dayo was not entitled to asylum because he could not provide credible evidence of a well-founded fear of future persecution is supported by substantial evidence. Because Dayo could not meet this burden, the BIA was also correct in concluding he could not meet the higher burden required for withholding of removal.3 An applicant “who has failed to establish the less stringent ‘well-founded fear’ standard of proof
The petition for review of the BIA‘s decision denying Dayo‘s application for asylum, withholding of removal, and relief under the CAT is DENIED.4