09-3551-ag

Alaka v. Holder

BIA

Nelson, IJ

A091 581 986

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

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ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 15th day of March, two thousand eleven.

PRESENT:

PIERRE N. LEVAL,

PETER W. HALL,

DEBRA ANN LIVINGSTON,

 Circuit Judges. 

______________________________________

OYENIKE ALAKA, ALSO KNOWN AS EVELYN

DEBBIE ANTHONY,

Petitioner, 

 v. 09-3551-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, JANET NAPOLITANO,

UNITED STATES DEPARTMENT OF HOMELAND

SECURITY

Respondents.

______________________________________

FOR PETITIONER: Joseph C. Hohenstein, Philadelphia,

Pennsylvania.

FOR RESPONDENTS: Tony West, Assistant Attorney

General; Michelle Gorden Latour,
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Assistant Director; P. Michael

Truman, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED in part and DISMISSED in part.

Oyenike Alaka, a native and citizen of Nigeria, seeks

review of a July 24, 2009, order of the BIA affirming the

June 27, 2008, decision of Immigration Judge (“IJ”) Barbara

Nelson which denied her application for withholding of

removal. In re Oyenike Alaka, No. A091 581 986 (B.I.A. July

24, 2009), aff’g No. A091 581 986 (Immig. Ct. N.Y. City,

June 27, 2008). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

I. Jurisdiction

Insofar as the majority of Alaka’s arguments are

concerned, we generally lack jurisdiction to review a final

order of removal of an alien convicted of certain crimes. 

We have jurisdiction only to consider constitutional claims

and questions of law, see 8 U.S.C. § 1252(a)(2)(C), (D), and

in this latter regard, we “lack jurisdiction to review any

legal argument that is so insubstantial and frivolous as to

be inadequate to invoke federal-question jurisdiction,”

Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008). 

Here, it is undisputed that Alaka was convicted of a crime

involving moral turpitude. See Alaka v. Attorney General of

the U.S., 456 F.3d 88, 102 n.24 (3d Cir. 2006). Our

jurisdiction, therefore, is limited strictly to

constitutional claims or questions of law Alaka has raised

in her petition for review. See 8 U.S.C. § 1252(a)(2)(C),

(D).

Alaka has also challenged the BIA member’s decision to

resolve a particular appeal unilaterally, without opinion,

pursuant to 8 C.F.R. § 1003.1(e)(4), rather than referring

it to a three-member panel. We lack jurisdiction to review

that decision, and we dismiss Alaka’s petition for review
3

with respect to that claim. Kambolli v. Gonzales, 449 F.3d

454, 463 (2d Cir. 2006).

II. Fairness of Proceedings

A. BIA’s Decision to Remand to the IJ

Contrary to Alaka’s argument that internal relocation

is solely a legal determination that the BIA could have

addressed without remand to the IJ, an internal relocation

analysis requires factual findings regarding conditions, and

the reasonableness of relocation, in the country of removal. 

See 8 C.F.R. § 208.13(b)(3). Because the IJ who originally

presided over Alaka’s proceedings specifically declined to

make such findings, the BIA’s remand to the IJ was

appropriate. 8 C.F.R. § 1003.1(d)(3)(iv) (stating that,

aside from taking administrative notice of commonly known

facts, the BIA may not conduct fact finding).

B. Venue

Although Alaka argues that venue should have remained

in Pennsylvania absent “exceptional circumstances,” the IJ

in Pennsylvania did not err in granting the government’s

motion to change venue based on a showing of “good cause,”

to wit, Alaka was living in New York City following her

release from detention. See 8 C.F.R. § 1003.20(b); Lovell

v. INS, 52 F.3d 458, 460 (2d Cir. 1995). The IJ having

applied the appropriate legal standard, Alaka’s criminal

conviction precludes us from further reviewing the IJ’s

decision with respect to change of venue. 8 U.S.C.

§ 1252(a)(2)(C). We thus deny Alaka’s petition to the

extent she challenges the IJ’s application of law to decide

to change venue and dismiss it to the extent she challenges

the IJ’s underlying decision to change venue.

Moreover, for the reasons discussed below, Alaka has

failed to establish that the change in venue caused any

prejudice to her proceedings. Lovell, 52 F.3d at 461.

C. Proceedings Before the IJ in New York

Alaka argues that her proceedings were unfair because

the IJ in New York “placed herself in the role of a

prosecutor,” did not inform the parties that she would be
4

making a past persecution determination, ignored what Alaka

asserts was a determination by the Pennsylvania IJ that

Alaka had suffered past persecution, and denied withholding

of removal despite the government’s failure to elicit

additional testimony from Alaka or submit any evidence

regarding internal relocation. To the extent such arguments

can be construed as a due process claim, Alaka has failed to

establish that she did not receive a full and fair hearing

which provided a meaningful opportunity to be heard. See Li

Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d

Cir. 2006). The New York IJ did not ignore a prior past

persecution determination made by the IJ in Pennsylvania. 

Although the IJ in Pennsylvania alluded to Alaka’s past

harm, he found Alaka was ineligible for withholding of

removal because her past criminal conviction was for a

particularly serious crime. He thus declined to make a

definitive finding regarding whether Alaka had experienced

past persecution, determining only that the testimony was

credible. Because whether past persecution has occurred

must be determined at the threshold of an internal

relocation analysis, see 8 C.F.R. § 208.13(b)(3), the New

York IJ did not exceed the scope of the Third Circuit’s

remand. Nor did the IJ make a determination on an issue as

to which the parties had no notice or opportunity to be

heard. The IJ considered Alaka’s testimony and supporting

documents submitted at her hearing before the IJ in

Pennsylvania. See Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the

agency “has taken into account all of the evidence before

[it], unless the record compellingly suggests otherwise”). 

The IJ also afforded both parties the opportunity to present

additional testimony or documents. In response, Alaka’s

counsel stated that further testimony was unnecessary. In

addition, the BIA did address Akala’s arguments regarding

the fairness of her proceedings. Nothing in the record,

therefore, suggests that Alaka was deprived of fundamental

fairness or denied a full and fair opportunity to present

her claim, and we deny her petition to the extent it asserts

that the administrative proceedings were unfair. See Li Hua

Lin, 453 F.3d 99 at 104-05.
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III. Withholding of Removal

A. Past Persecution

Alaka argues that the agency erred by determining that

the harm she suffered did not constitute persecution. As an

initial matter, Alaka’s argument that Third Circuit law

should apply is unavailing because, as she concedes, the law

applicable to claims for withholding of removal is not

substantively different in this Circuit. Indeed both this

Court and the Third Circuit have issued decisions agreeing

with the BIA’s definition of past persecution as set forth

in Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985). 

See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341

(2d Cir. 2006); see also Fatin v. INS, 12 F.3d 1233, 1240

(3d Cir.1993). 

The harm Alaka asserts she suffered—threats and being

pushed when she attempted to stop Oodua People’s Congress

members from beating her husband—do not amount to

persecution. See Ivanishvili, 433 F.3d at 342; Fatin, 12

F.3d at 1240; see also Gui Ci Pan v. U.S. Attorney Gen., 449

F.3d 408, 412 (2d Cir. 2006) (noting that courts have

“rejected [persecution] claims involving ‘unfulfilled’

threats”); Zhen Hua Li v. Att’y Gen., 400 F.3d 157, 165 (3d

Cir. 2005) (holding that unfulfilled “threats of physical

mistreatment, detention, or sterilization” were not

“sufficiently imminent or concrete for the threats

themselves to be considered past persecution”). Nor may

Alaka base her claim on harm her husband suffered because

she did not establish that her husband’s persecutors had

imputed his opinions to her. See Tao Jiang v. Gonzales, 500

F.3d 137, 141 (2d Cir. 2007); see also Shi Liang Lin v. U.S.

Dep’t of Justice, 494 F.3d 296, 308 (2d Cir. 2007) (“[T]he

statutory scheme unambiguously dictates that applicants can

become candidates for asylum relief only based on

persecution that they themselves have suffered or must

suffer.”). Accordingly, we deny that portion of Alaka’s

petition asserting that the IJ erroneously determined that

the harm she suffered did not constitute persecution.
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B. Internal Relocation

Because Alaka did not suffer past persecution, the IJ

properly placed the burden on her to establish that it was

unreasonable for her to relocate within Nigeria. See

8 C.F.R. § 208.13(b)(3). Contrary to Alaka’s assertions

that the IJ failed to apply the reasonableness standard or

ignored evidence in the record, the IJ determined that

Alaka’s testimony and supporting evidence were “insufficient

[to establish] that it would be unreasonable, as opposed to

inconvenient, difficult, or unpleasant to relocate.” See

Xiao Ji Chen, 471 F.3d at 337 n.17. Because Alaka’s

challenge is to the IJ’s factual determinations, which, due

to Alaka’s criminal conviction, we lack jurisdiction to

review. 8 U.S.C. § 1252(a)(2)(C); Barco-Sandoval, 516 F.3d

at 40, we dismiss that portion of her petition challenging

the agency’s internal relocation finding.

For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part. As we have completed

our review, any stay of removal that the Court previously

granted in this petition is VACATED, and any pending motion

for a stay of removal in this petition is DISMISSED as moot. 

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk