18

- 2588

- ag Omorodion v. Garland

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 ELECTRONIC DATABASE (WITH THE NO TATION

“ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY 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, 1 held at the Thurgood Marshall United States Courthous e, 40 Foley Square, in the 2 City of New York, on the 2 9 t h day of N o v e m b e r , two thousand twenty

- two

. 3 4 PRESENT: RAYMOND J. LOHIER, JR. , 5 SUSAN L. CARNEY , 6 ALISON J

. NATHAN , 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 NEKPEN NIL OMORODION, AKA NEKREN 10 OMORODION , 11 12 P etitioner , 13 14

v. 18

- 2 588

- ag 15 16 MERRICK B. GARLAND, UNITED STATES 17 ATTORNEY GENERAL , 18 19 Respondent

. 20

------------------------------------------------------------------ 21 222 FOR PETITIONER : T HOMAS E

. M OSELEY , Law 1 Offices of Thomas E. Moseley , 2 Newark , NJ 3 4 FOR RESPONDENT : R OBERT P AUL C OLEMAN , III , 5 Trial Attorney, James A. 6 Hurley, Attorney, Office of 7 Immigration Litigation , Civil 8 Division, United States 9 Department of Justice, 10 Washington, DC 11 12 UPON DUE CONSIDERATION of this petition for review of a Board of 13
Immigration Appeals (“BIA”) decision, IT IS HEREBY ORDERED, ADJUDGED, 14
AND DECREED that the petition for review is GRANTED and the case is 15

REMANDED for additional proceedings consistent with this order

. 16

Petitioner Nekpen Nil Omorodion , a native and citizen of Nigeria , seeks 17

review of a July 30 , 20 18 decision of the BIA vacating a February 12, 2018 18
decision of an Immigration Judge (“IJ”) granting deferral of removal under the 19
Convention Against Torture (“CAT”). We a ssume the parties’ familiarity with 20
the underlying facts and the record of prior proceedings, to which we refer only 21

a s necessary to explain our decision to grant the petition

. 22

In 2014 Omorodion, a permanent resident of the United States, was 23
convicted in the Middle District of Pennsylvania of conspiracy to commit wire 243 fraud in violation of 18 U.S.C. §§ 1349 and 1343. Omorodion had been complicit 1
in a scheme that used Moneygram and Western Union computer systems to 2

p rocess and transmit money received in fraudulent telemarketing to accomplices 3

across the world. Omorodion testified as a government witness against one of 4

her co

- defendant s , Itohan Agho

- Allen. Agho

- Allen was convicted and 5

sentenced to 180 months in priso n and ordered to pay restitution in the amount 6
of $2,371,668. Omorodion ple a d ed guilty to the conspiracy charge and was 7

sentenced principally to a term of 30 months ’ imprisonment after the 8

Government successfully mov ed for a downward departure from the ap plicable 9
Sentencing Guidelines range in light of her cooperation. She was also ordered 10
to pay restitution in the amount of $418,365.42. 11

In August 2016, after Omorodion finished serving her custodial sentence, 12
the Government filed a Notice to Appear charging Omorodion with removability 13
under 8 U.S.C. §§ 1227(a)(2)(A)(iii) and 1227(a)(2)(A)(i) on account of her felony 14
conviction. Omorodion conceded the charges of removability and applied for 15
withholding of removal , see 8 C.F.R. § 1208.16, and deferral of removal , see i d. 16
§ 1 208.1 7 , under the CAT

. 17
In her application for CAT relief , Omorodion stated that she feared that 184 “ Agho

- Allen and her associates” would kill her if s he return ed to Nigeria and 1

that Nigerian authorities would not protect her given their susceptibility to 2
corruption and bribery. Cert. Admin. R. 298

. During her removal hearing, 3
Omorodion offered testimony in support of that statement

. She also testified 4

that Agho

- Allen’s mother communicated threats to Omorodion’s family in 5
Nigeria and that Agho

- Allen’s family is very wealthy and influential in that 6

country . She later provided additional evidence in support of those statements , 7

as well as more evidence that the Ni gerian police are susceptible to bribery. The 8
IJ granted Omorodion’s application for deferral of removal under the CAT and, 9

a fter an initial remand by the BIA, reaffirmed that decision

. In July 2018 t he 10

BIA vacated the IJ’s grant of CAT relief and ordered Omorodion removed , 11
concluding that Omorodion did not show that she would suffer torture or that 12
public officials would acquiesce in her torture. 13

Where the BIA does not adopt the IJ ’s decision , we review the BIA’s 14
decision as the final agency decision. See Yan Chen v. Gonzales , 417 F.3d 268, 15
271 (2d Cir. 2005). W e review CAT orders for both factual and legal errors. 16

Nasrallah v. Barr , 140. S. Ct. 1683 , 1692 (2020)

. While we review de novo all 17
question s of law, including the application of law to facts, see Scarlett v. Barr , 957 185 F.3d 316, 326 (2d Cir. 20 2 0), we apply the “substantial evidence” standard in our 1
review of the agency’s factual findings, see Islam v. Gonzales , 469 F.3d 53, 55 (2d 2
Cir. 2006). 3

First, Omorodion argues that the BIA mischaracteriz ed and ignor ed key 4

evidence. We agree . While the agency “does not commit an error of law every 5
time an item of evidence is not explicitly considered or is described with 6
imperfect accuracy,” it er r s when it “totally overlook[s]” or “seriously 7
mischaracterize[s]” material evidence. Mendez v. Holder , 566 F.3d 316, 323 (2d 8
Cir. 2009) (quotation marks omitted)

. H ere, the BIA failed to address a key 9
component of an affidavit submitted by Ajibola Godswill Ohushina , 10

Omorodion’s half

- brother

. In addition to corroborating Omorodion’s account 11

of a t hreatening visit to her mother’s house by Agho

- Allen’s mother

— which is 12
the only purpose for which the BIA considered Ohushina’s affidavit

— the 13
affidavit conveyed Ohushina’s knowledge that Agho

- Allen’s mother “has the 14
resources to hurt and even kill [his ] sister if she were to return to Nigeria.” 15

Cert. Admin. R. 242 ; see also id. at 243 (“I know that there have been threats 16
against [my sister’s] life . . . .”)

. Th e affidavit therefore supports Omorodion’s 17
statement in her CAT application that Agho

- Allen’s “family directed numerous 186 threats to [her] family and stated that they will kill [her].” Id. at 298. The BIA 1
erred when it ignored this portion of Ohushina’s affidavit without explanation. 2

S ee Ojo v. G arland , 25 F.4th 152, 174 (2d Cir. 2022) ( find ing “ error in the agency ’ s 3

determination that [the petitioner] was not more likely than not to suffer torture 4
without any apparent consideration of material evidence or, at a minimum, by 5
failing to provide reasoning as to why such evidence was rejected if it was 6

considered ”); Poradisova v. Gonzales , 420 F.3d 70, 77 ( 2d Cir. 2005) (“ [ W ] e 7
require a certain minimum level of analysis from the IJ and BIA opinions . . . and 8
indeed must require such if judicial review is to be meaningful.”)

. 9

T he BIA also erred by failing to apply the clear error standard in its review 10

of the IJ’s “predictive finding that [Omorodion] would suffer torture by or with 11
the acquiescence of the Nigerian government.” Cert. Admin. R. 5 ; see 8 C.F.R. 12
§ 1003.1(d)(3)(i). As the Government acknowledge s , see Oral Arg. Record ing at 13

10:08

- 34 , a n IJ’s predictive finding constitutes a factual finding, which “m ay be 14
rejected under clearly erroneous review as speculative only in those instances 15
where the IJ lacks an adequate basis in the record for the determination that a 16

future e vent will, or is likely to, occur.” Hui Lin Huang v. Holder , 677 F.3d 130 , 17
134 (2d Cir. 2012). The BIA determined that the IJ’s reliance on testimony from 187 a U.S. Postal Inspector regarding the widespread attention that Omorodion’s 1
cooperation received in Nigeria and “reports addressing governmental abuses 2
and corruption in Nigeria , ” Cert. Admin. R. 4, did not support a conclusion that 3

“ Nigerian authorities h a ve an y interest” in Omorodion , id. at 5

. T he BIA erred 4

insofar as it rested this determination on what it described as Omorodion’s fear 5
of torture by Nigerian authorities or the Nigerian authorities’ “interest” in her , 6
rather than her fear of torture by Agho

- Allen’s family , which she asserted had 7
the means to ensure that Nigerian authorities would corruptly turn a blind eye if 8
she were tortured by the family

. Id. at 5. Omorodion supported her assertion 9
of corruption by offering country conditions reports establishing Nigeria n law 10

enforcement’s susceptib ility to bribes by wealthy and powerful families like 11
Agho

- Allen’s. T he BIA erred as a matter of law when it overlooked such 12

evidence and rejected the IJ’s predictive finding. 13

To summarize , we grant the petition and remand because the BIA 14
overlooked material components of the record and misconstrued others

. See 15

Xiao Kui Lin v. Mukasey , 553 F.3d 217, 220 (2d Cir. 2009). Should the BIA 16
vacate the IJ’s grant of CAT relief on remand, it should explain where it identifies 17
clear error in the IJ’s factfinding based on the totality of the record

. If any 188 vacatur is not due t o clear error, the BIA must otherwise “provide sufficient 1
explanation to permit proper appellate review” of its decision. Hui Lin Huang , 2

677 F.3d at 137. 3
For the foregoing reasons, the petition for review is GRANTED , the BIA’s 4

decision is VACATED , and the case is REMANDED for further proceedings 5

consistent with this o rder . All pending motions and applications are DENI E D 6
and stays VACATED. 7

FOR THE COURT: 8 C atherine O’Hagan Wolfe, Clerk of Court 9