NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 15-2481

____________

EFE FRANKLYN EDEKI,

 Petitioner

v.

THE ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

 Respondent

____________

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A206-414-557)

Immigration Judge: Mirlande Tadal

____________

Argued June 22, 2016

Before: MCKEE, Chief Judge, FISHER and GREENAWAY, JR., Circuit Judges.

(Filed: August 23, 2016)

Joshua E. Bardavid [ARGUED]

Suite 1501, 277 Broadway

New York, NY 10007

Theodore N. Cox

Suite 201, 325 Broadway

New York, NY 10007

Counsel for Petitioner

Thomas W. Hussey

Neelam Ihsanullah

Loretta Lynch

Liza S. Murcia [ARGUED]

Anthony C. Payne

United States Department of Justice
2

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

____________

OPINION*

____________

FISHER, Circuit Judge.

Efe Franklyn Edeki fled Nigeria to the United States where he was detained by 

immigration authorities. He sought relief in three forms: asylum, withholding of removal, 

and protection under the Convention Against Torture. The Immigration Judge denied his 

applications for relief, and the Board of Immigration Appeals (BIA) affirmed. Edeki now 

seeks review of the BIA’s order. We will deny the petition. 

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts that are necessary 

to our analysis.

Efe Franklyn Edeki is a native of Nigeria. He was born in Ugelli, Delta State, but 

he was raised by his aunt in Edo State. Edeki’s father lived in Delta State—about three 

hours away—and Edeki would occasionally visit him there. In September 2013, Edeki’s 

father was violently murdered at his home by members of the Neo Black Movement of 

Africa (or “Black Axe”). Edeki’s father had been the chief priest of Black Axe but 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
3

renounced his membership when he converted to Christianity. Edeki’s sister, who was at 

their father’s house at the time of his death, was raped and beaten by members of Black 

Axe and later died of her injuries. 

When Edeki learned of his father’s death, he traveled with his aunt to Delta State. 

They contacted the police about the attacks, but the officer assigned to their case solicited 

bribes from them and then refused to investigate without payment. A week later, a funeral 

was held for Edeki’s father. Members of Black Axe attended and were accompanied by 

policemen. Black Axe members summoned Edeki to the room where his father’s body 

was kept. There the members performed rituals over the body—they sprinkled powder 

over it, recited incantations, and mutilated the body’s genitals. Then the body was buried. 

Later that day, a member of Black Axe approached Edeki and demanded that he 

join the group. Edeki refused on religious grounds, and the Black Axe member walked 

away angry. Three days later, Black Axe kidnapped Edeki as he was leaving church: they 

beat him, taped his mouth shut, and drove him in the trunk of a car to a Black Axe shrine. 

They removed Edeki’s shirt and pointed to a mark on his chest, saying that the mark 

signified Edeki’s pre-initiation into Black Axe. They told him that, because his father had 

been the chief priest of the cult, Edeki needed to join and assume that role. 

Under the threat of castration and death, Edeki agreed to join Black Axe. For the 

next three days, Black Axe members held him captive and forced him to engage in 

various rituals such as blood oaths, beatings with a horsewhip, daily repetition of creeds, 

and animal sacrifices. Edeki was told that if he broke any of the rules of Black Axe he 
4

would be castrated or killed. At the end of the three-day ceremony, Black Axe put Edeki 

back into the trunk of a car and dropped him off near his father’s house. 

Edeki fled Delta State to his aunt’s house in Edo State. He did not report any of 

these events to the police. Edeki says he kept quiet because of threats by Black Axe and 

because he believed the police were heavily associated with the cult. Shortly after 

arriving in Edo State, Edeki found a note on his car that said Black Axe was watching 

him. When Black Axe also threatened his aunt and her family, she asked Edeki to leave. 

After Edeki left his aunt’s house, his friends and family all turned him away in fear for 

their lives. 

With nowhere else to go, Edeki fled Nigeria. He arrived in the United States in 

June 2014 and was detained by immigration authorities. An immigration officer 

determined that Edeki had a credible fear of persecution and arranged for further 

proceedings. The Department of Homeland Security served a Notice to Appear on Edeki, 

charging that he was subject to removal. Edeki appeared at a hearing in September before 

an Immigration Judge and sought relief in the form of asylum, withholding of removal, 

and protection under the Convention Against Torture. 

The Immigration Judge denied Edeki’s applications for relief, finding that he 

(Edeki) had not demonstrated that he had suffered past persecution on account of his 

membership in a particular social group.

1

In particular, the Immigration Judge concluded 

 

1 Edeki’s proposed social group was “individuals who have significant kinship ties to 

[Black Axe], but who consciously refuse to be in this cult.” App. 15.
5

that Edeki had failed to show that his purported group was “socially distinct”—i.e., even 

though Edeki demonstrated that Black Axe exists in Nigeria, he did not show that those 

with kinship ties to Black Axe but who consciously refuse to be part of the group are seen 

as a socially distinct group. The Immigration Judge also found that Edeki had failed to 

show that the Nigerian government is unwilling or unable to control the alleged 

persecutors. Finally, the Immigration Judge found that Edeki had failed to demonstrate 

eligibility for protection under the Convention Against Torture because he did not 

demonstrate a clear likelihood that members of Black Axe would torture him upon his 

return or that such torture would be done with the acquiescence of the government. In 

January 2015, the Immigration Judge ordered Edeki’s removal to Nigeria. 

Edeki appealed the Immigration Judge’s decision to the BIA. The BIA concluded 

that Edeki had not established that his proposed social group was regarded as a 

distinguishable group within Nigeria. The BIA also found that Edeki had not 

demonstrated a nexus between a protected ground and the reason for past harm. Thus, 

Edeki failed to establish past persecution and was not entitled to a presumption of a wellfounded fear of future persecution. Moreover, Edeki did not, according to the BIA, 

independently establish a well-founded fear of future persecution on account of a 

protected ground. Accordingly, Edeki failed to meet his burden of proof for asylum relief 

and (necessarily) failed to meet the higher burden required for withholding of removal. 

Finally, the BIA found that the Immigration Judge did not err in finding insufficient 

evidence to establish that Edeki faces a probability of torture with the consent or 
6

acquiescence of the Nigerian government so as to qualify for protection under the 

Convention Against Torture. Thereafter Edeki filed this petition for review.

 II.2

We review the BIA’s legal conclusions de novo, giving deference under Chevron 

v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), to the BIA’s 

“interpretation of statutes and regulations within its enforcement jurisdiction.”3 We 

affirm any findings of fact supported by substantial evidence and are bound by the 

administrative findings of fact “unless a reasonable adjudicator would be compelled to 

arrive at a contrary conclusion.”4

A. 

Under the Immigration and Nationality Act, the Attorney General may grant 

asylum to any alien who demonstrates that he meets the definition of a “refugee.”

5 To 

establish that he is a refugee, an alien must demonstrate either proof of past persecution

or a well-founded fear of future persecution in his home country “on account of race, 

religion, nationality, membership in a particular social group, or political opinion.”6

Persecution must be on the grounds of one of those five protected characteristics. 

Furthermore, “the acts must be committed by the government or forces the government is 

 

2 The Immigration Judge had jurisdiction over the proceedings pursuant to 8 C.F.R. 

§ 1208.2(b). The BIA had jurisdiction over Edeki’s appeal pursuant to 8 C.F.R. 

§§ 1003.1 and 1003.2. This Court’s jurisdiction arises under 8 U.S.C. § 1252.

3 Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010).

4 Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009) (quoting Yan Lan Wu v. 

Ashcroft, 393 F.3d 418, 421 (3d Cir. 2005)).

5

8 U.S.C. § 1158(b)(1)(A).

6

8 U.S.C. § 1101(a)(42).
7

either unable or unwilling to control.”7 A more stringent standard applies to applications

for withholding of removal: “an alien ‘must establish a clear probability . . . that it is 

more likely than not that his life or freedom would be threatened if returned to his 

country’ because of his protected class.”8

Edeki attempted to show that he had suffered past persecution based on his 

membership in a particular social group, which he defined as “individuals who have 

significant kinship ties to the [Black Axe], but who consciously refuse to be in this cult.”

The statutory term “particular social group” is ambiguous9and accordingly 

entitled to Chevron deference.10 In Matter of Acosta,

11 the BIA interpreted the phrase 

“‘persecution on account of membership in a particular social group’ to mean persecution 

that is directed toward an individual who is a member of a group of persons all of whom 

share a common, immutable characteristic.” We concluded that the BIA’s interpretation 

of “particular social group” in Acosta was a permissible construction and thus adopted 

it.12 A few decades later, however, the BIA supplemented the test for membership in a 

particular social group by adding the requirement of “social visibility.”13

 

7 Garcia v. Att’y Gen., 665 F.3d 496, 505 (3d Cir. 2011) (quoting Sukwanputra v. 

Gonzales, 434 F.3d 627, 637 (3d Cir. 2006)).

8

Sesay v. Att’y Gen., 787 F.3d 215, 219 (3d Cir. 2015) (alterations omitted) (quoting 

Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008)).

9 Fatin v. INS, 12 F.3d 1233, 1238–39 (3d Cir. 1993).

10 Negusie v. Holder, 555 U.S. 511, 516 (2009).

11 19 I. & N. Dec. 211, 233 (B.I.A. 1985).

12 Fatin, 12 F.3d at 1240.

13 See, e.g., Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (B.I.A. 2008) (explaining that 

“membership in a purported social group requires that the group have particular and 

well-defined boundaries, and that it possess a recognized level of social visibility”); In 
8

In Valdiviezo-Galdamez v. Attorney General, we rejected the BIA’s addition of the 

social visibility requirement, explaining that many of the particular social groups 

recognized by the BIA after Acosta lacked social visibility and would have failed under 

the new definition.

14 We remanded the case so that the BIA could clarify what is needed 

to prove the existence of a particular social group.15 The BIA subsequently explained that 

a “particular social group” must be “(1) composed of members who share a common 

immutable characteristic, (2) defined with particularity, and (3) socially distinct within 

the society in question.”16 The BIA explained the third prong, which replaced the “social 

visibility” requirement, as follows: “To be socially distinct, a group need not be seen by 

society; rather, it must be perceived as a group by society. Society can consider persons 

to comprise a group without being able to identify the group’s members on sight.”17 

In this case, the BIA found that Edeki’s proposed group did not qualify as a 

“particular social group” because it failed to meet the third prong, i.e., it lacked “social 

distinction.” In his petition, Edeki challenges the BIA’s newly articulated “social 

distinction” requirement. According to Edeki, there is no difference between this new 

requirement and the former “social visibility” standard that we rejected in ValdiviezoGaldamez.

 

Re A-M-E- & J-G-U-, 24 I. & N. Dec. 69, 74 (B.I.A. 2007); In Re C-A-, 23 I. & N. Dec. 

951, 959 (B.I.A. 2006).

14 663 F.3d 582, 604 (3d Cir. 2011).

15 Id. at 608–09.

16 Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014).

17 Id. at 240 (internal citations omitted).
9

We need not reach this issue, however, because the BIA affirmed the Immigration 

Judge on an additional basis: it found that Edeki had failed to establish a nexus between 

his membership in his proposed group and the persecution he suffered. Demonstrating the 

existence of a nexus is a separate and distinct requirement: “a key task for any asylum 

applicant is to show a sufficient ‘nexus’ between persecution and one of the listed 

protected grounds.”18 The BIA explained in its opinion that, “however [Edeki’s] social 

group may be defined, [he] has not established that cult members targeted him to punish 

him for or to overcome his group membership.”19 As a result, the BIA concluded that 

Edeki “has not established that a protected ground was ‘at least one central reason’ for his 

past harm.”20

The government rightly points out that Edeki failed to address this issue at any 

point in his opening (and only) brief. He has accordingly waived any argument that he 

actually established a sufficient nexus.21 The requirement of a nexus is a separate 

element, and we have in the past denied petitions solely on the basis of a lack of nexus.22

Because Edeki failed to address the issue, he has waived his right to present any 

 

18 Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129 (3d Cir. 2009).

19 App. 7.

20 App. 8.

21 Bradley v. Att’y Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010) (explaining that an 

argument that did not appear in petitioner’s opening brief or in his reply brief was 

deemed waived).

22 See, e.g., Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 350 n.10 (3d Cir. 2008) (“It is 

not necessary to determine whether [Petitioner’s proposed group] is a cognizable 

‘particular social group’ under the statute, because there is substantial evidence in the 

record to conclude that the [persecuting group] was not motivated by Petitioner’s 

membership in a particular social group when they abducted her for eight days, but was 

instead motivated by a desire to recruit her.”).
10

arguments to the contrary. Accordingly, we will deny the petition as it relates to his 

application for asylum and withholding of removal. 

B.

“An applicant for relief on the merits under the Convention Against Torture bears 

the burden of establishing ‘that it is more likely than not that he or she would be tortured 

if removed to the proposed country of removal.’”23 There is no subjective component to 

this standard; rather, an alien must establish by objective evidence that he is entitled to 

relief.24 If an alien meets his burden of proof, withholding of removal or deferring of 

removal is mandatory.25 An alien seeking relief under the Convention Against Torture

does not need to establish that torture is inflicted on account of a protected status.26

Instead, he must “establish a likelihood of being subjected to torturous acts inflicted ‘by 

or at the instigation of or with the consent or acquiescence of a public official or other 

person acting in an official capacity.’”27

In this case, the BIA found that Edeki had not demonstrated “that the Immigration 

Judge clearly erred in finding insufficient evidence in the record to establish that he faces 

a probability of torture, as defined by 8 C.F.R. § 1208.18(a), by or with the consent or 

acquiescence (including willful blindness) of an official of the Nigerian government, so 

 

23 Sevoian v. Ashcroft, 290 F.3d 166, 174–75 (3d Cir. 2002) (quoting 8 C.F.R. 

§ 1208.16(c)(2)).

24 Id. at 175.

25 INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. §§ 1208.16–.18.

26 Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 64 (3d Cir. 2007).

27 Id. (alterations omitted) (quoting 8 C.F.R. § 1208.18(a)(1)).
11

as to qualify him for protection under [the Convention Against Torture].”28 The BIA 

concluded that Edeki had “offered no persuasive evidence that the Nigerian government 

would be likely to torture him or acquiesce in his torture by others” and that he had 

therefore not met his burden of proof to establish eligibility under the Convention 

Against Torture.

29

The evidence presented by Edeki does not compel a conclusion contrary to the one 

reached by the Immigration Judge and affirmed by the BIA. Although Edeki offered 

credible testimony that the police attended his father’s funeral along with Black Axe, this 

does not, on its own, demand the conclusion that the Nigerian government acquiesced in 

any torture of Edeki. First, Edeki does not aver that the police were present for or aware 

of the rituals performed by Black Axe at that funeral. Second, those actions related to 

Edeki’s father, not Edeki himself; Edeki has alleged no facts indicating that the Nigerian 

government acquiesced in or was willfully blind to Edeki’s kidnapping or any other 

actions related to him personally. After all, Edeki never reported his kidnapping to the 

police, which undermines his claim that the Nigerian government acquiesced in his 

torture. Third, Edeki’s testimony about the police officer’s refusal to investigate the 

murder of his (Edeki’s) father without a bribe may speak to the corruption of that police 

officer, but it does not establish that the Nigerian government would acquiesce in the 

torture of Edeki. 

 

28 App. 8.

29 App. 8. 
12

Given the weak link between the hypothetical torture of Edeki by Black Axe and 

the sparse evidence of Nigerian support, we cannot say that the evidence “compels the 

conclusion that [Edeki] has met this burden.”30 Accordingly, we will deny Edeki’s 

petition on this ground as well. 

III.

Because Edeki has failed to show that the BIA erred in denying him asylum, 

withholding of removal, or protection under the Convention Against Torture, we will 

deny his petition for review.

 

30 Kang v. Att’y Gen., 611 F.3d 157, 166 (3d Cir. 2010).