2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-23-2013

Emmanuel Ehikhuemhen v. Attorney General

United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3443

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 12-3443, 13-1035, & 13-1552

___________

EMMANUEL EHIKHUEMHEN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, 

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A088-445-607)

Immigration Judge: Honorable Dorothy Harbeck

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 21, 2013

Before: FISHER, GARTH and ROTH, Circuit Judges

(Opinion filed: August 23, 2013)

_________

OPINION

_________

PER CURIAM

Emmanuel Ehikhuemhen petitions for review of three separate orders issued by 

the Board of Immigration Appeals (BIA). The first order denied Ehikhuemhen’s 
2

applications for asylum, withholding of removal, and protection under the United 

Nations’ Convention Against Torture (CAT); the second denied Ehikhuemhen’s motion 

to reopen; and the third denied Ehikhuemhen’s motion for reconsideration. For the 

following reasons, we will dismiss the petitions in part and deny them in part.

I. Introduction and Background

Ehikhuemhen, a Nigerian citizen, hails originally from the Niger Delta region of 

the country. His family, who are members of the Edo tribe, adhered to traditional African 

religions. But some time after he relocated to the central capital city of Abuja, 

Ehikhuemhen met a congregant of the Living Faith Church; inspired, he converted to 

evangelical Christianity, began to proselytize, and soon convinced a Muslim fellow 

resident of Abuja to join him in the faith.

According to Ehikhuemhen, his Christian religious activity landed him in the 

crosshairs of local militant Islamic groups, and specifically a radical group called the 

Boko Haram,1from whose ranks he had won his convert. In early 2010, a local Imam 

sent members of the Boko Haram to storm a prayer meeting in Abuja. Beaten and 

severely injured, Ehikhuemhen suffered internal bleeding and was hospitalized for a 

month. His fellow congregants sought help from the police, who allegedly refused to 

 

1

The Boko Haram “promotes a version of Islam which makes it ‘haram,’ or forbidden, 

for Muslims to take part in any political or social activity associated with Western 

society. . . . Its political goal was to create an Islamic state . . . .” Administrative Record 

432–33. 
3

render assistance because, as Muslims, “they sided with [the] attackers.” Later, Boko 

Haram groups burned down the market in Abuja where Ehikhuemhen’s shop was located 

“because it was on the way to the Living Faith Church.” After these attacks, and 

realizing that the Boko Haram could readily identify him, Ehikhuemhen decided to flee to 

the United States. Administrative Record (A.R.)2365, 474–75.

Having been paroled into the United States for the purpose of criminal 

prosecution,3Ehikhuemhen was served in September 2011 with a Notice to Appear. He 

was alleged to be inadmissible under several subsections of 8 U.S.C. § 1182, including 

the provision dealing with crimes involving moral turpitude. See 8 U.S.C. 

§ 1182(a)(2)(A)(i)(I); A.R. 519–20. Although at first Ehikhuemhen contested certain of 

the charges, see A.R. 332–33, he eventually conceded both the individual factual 

allegations and his overall inadmissibility, see A.R. 338.

Ehikhuemhen then filed a defensive application for asylum, withholding of 

removal, and CAT protection, based on the incidents recounted above and his continuing 

fear of persecution. Among the materials submitted in support of Ehikhuemhen’s 

application were: a letter from his brother, castigating Ehikhuemhen for his conversion 

 

2 All citations to the Administrative Record refer to the record compiled in C.A. No. 13-

1552, which contains materials pertaining to all three petitions for review.

3

Ehikhuemhen pleaded guilty to one count of visa fraud (18 U.S.C. § 1546(a)), and 

received a three-month sentence. See Judgment 1–2, ECF No. 9, E.D.N.Y. Crim. No. 

1:11-cr-00542.
4

while obliquely referencing his beating, A.R. 449; a baptismal certificate from the Living 

Faith Church in Abuja, A.R. 450; and an affidavit from Ehikhuemhen’s brother-in-law, 

A.R. 439–40. The affidavit purported to explain the absence of certain documents from 

Ehikhuemhen’s evidentiary submissions, despite the best efforts of the brother-in-law and 

his family to locate them. For example, no police report on the 2010 beating was 

available because “the police station was burn[ed] down by the Boko Haram in 2011.” 

A.R. 439.

At his merits hearing before the Immigration Judge (IJ), Ehikhuemhen testified in 

support of his applications for relief. In describing the 2010 assault by Boko Haram 

members, Ehikhuemhen explained that he was “bitterly injured” and hospitalized for a 

month. A.R. 366. However, he struggled on cross examination to articulate the precise 

extent of his injuries, expressing confusion over the meaning of “surgery” while 

testifying that he was treated for broken bones in his leg and back. See A.R. 384. 

Ehikhuemhen pointed to his light skin-tone as something that would lead to his easy

identification and would, presumably, make relocating difficult. A.R. 369–70. For its 

part, the Government emphasized Ehikhuemhen’s ability to relocate throughout the 

proceedings. See, e.g., A.R. 380 (discussing the distance between Abuja and Lagos), 

389–90, 395 (closing statement); see also 391 (discussing Nigeria’s “very large Christian 

community”). 

The IJ ultimately denied Ehikhuemhen’s application for relief. Despite finding 
5

him to be credible, see A.R. 289, the IJ determined that Ehikhuemhen had failed to 

corroborate certain essential aspects of his story, such as the extent of his injuries after 

the first attack. A.R. 290. The IJ characterized the market attack as the lamentable 

product of “general violence.” A.R. 292; see also A.R. 293 (“Unfortunately, Respondent 

appears to be one of many Nigerian store owners whose lives were negatively impacted 

by persistent religious hostility.”). She separately decided that Ehikhuemhen had not 

satisfied his burden of showing a well-founded fear of future persecution, in part because 

he “failed to establish that his fear of persecution is country-wide.” A.R. 294. In fact, 

relying upon the 2010 State Department International Religious Freedom Report, the IJ 

explicitly found that “there are areas within Nigeria where [Ehikhuemhen] can relocate to 

and live without fear of future persecution.” A.R. 294. 

Ehikhuemhen timely sought review from the BIA, but to no success. The BIA 

affirmed, holding that the IJ “complied with the Third Circuit’s corroboration

requirements” and properly denied relief after “consider[ing] the totality of the evidence.” 

A.R. 249–50. Without corroboration, Ehikhuemhen had not met his burden of proof of 

showing either past persecution or a well-founded fear of future persecution. A.R. 250. 

The BIA also affirmed the IJ’s relocation finding. A.R. 251. 

Shortly thereafter, Ehikhuemhen obtained two new pieces of evidence. The first 

was a report on the Boko Haram issued by the Human Rights Watch that purportedly

showed the group’s expanding geographical influence. The second was “a letter . . . from 
6

the hospital where [Ehikhuemhen] was treated after his attack.” A.R. 137–38. 

Ehikhuemhen thus filed a timely motion to reopen in the BIA. 

The BIA again denied relief. It decided (inter alia) that the hospital letter was not 

previously unavailable and that the Human Rights Watch report was based on incidents 

predating Ehikhuemhen’s final hearing. A.R. 107. Moreover, Ehikhuemhen had failed 

to show that the report would be likely to affect the outcome of his proceedings. A.R. 

107. For example, a kidnapping incident, although involving a man from Southeast

Nigeria, likely occurred in the Northeast region of the country. A.R. 108 (citing A.R. 

171, which references a “compound in Maiduguri,” a Northeastern city). 

After gathering yet more evidence in support of his application, Ehikhuemhen

filed a motion for reconsideration of the BIA’s second order.4 See A.R. 17. The 

keystone of the new set of documents was a Jamestown Foundation report that “included 

specific evidence that the persecution of Christians has recently extended into the South 

of Nigeria.” A.R. 17. Several statements from one Bala Elbir were also included, 

detailing Mr. Elbir’s attempts to earlier obtain the medical document that had been 

supplied with the motion to reopen. See, e.g., A.R. 95. 

The BIA again denied relief. Construing the motion as both a motion to 

 

4

The procedural history of this submission is a bit more tangled than our summary would 

suggest, but as the BIA accepted all of Ehikhuemhen’s filings at face value, we need not 

worry about the propriety or stylings of his multiple filings, despite their apparent 

noncompliance with 8 C.F.R. § 1003.2(c)(2) and the relevant statutory equivalents. 
7

reconsider and a motion to reopen, the BIA identified “no legal authority” or previously 

unavailable evidence that would suggest error in its previous dispositions. A.R. 2. “Nor 

d[id] the supplemental evidence warrant reopening.” A.R. 2. 

We consolidated Ehikhuemhen’s three petitions for review by order of January 7, 

2013. The case is fully briefed and is ripe for disposition.

II. Jurisdiction5and Standard of Review

We may ordinarily exercise jurisdiction over final orders of removal—so long as 

petitions for review are timely filed—and will generally review the BIA’s decision except 

to the extent that the BIA deferred to or adopted the IJ’s decision. See 8 U.S.C. 

§ 1252(b)(1); Calla-Collado v. Att’y Gen., 663 F.3d 680, 683 (3d Cir. 2011) (per curiam). 

Ehikhuemhen filed timely petitions from each separate order, as he was required to do. 

See Castro v. Att’y Gen., 671 F.3d 356, 364 (3d Cir. 2012). However, that is not the end 

 

5

In our April 3, 2013 order denying Ehikhuemhen’s second motion to stay his removal, 

we directed the parties to discuss “the basis and extent of our jurisdiction over this 

matter,” as we had detected a possible jurisdictional limitation (discussed further above 

the margin) that neither party acknowledged in its motions-stage submissions. The 

petitioner has complied, albeit in a somewhat cursory fashion. The Government, by 

contrast, has completely failed to discuss the jurisdictional problem we highlighted in our 

order, and has not otherwise meaningfully responded to the jurisdictional contentions 

raised in the petitioner’s brief. See also Pet’r’s Reply Br. 2 n.2 (observing that the 

Government has failed to respond to jurisdictional issues). We are nevertheless required 

to address the scope of our jurisdiction even without assistance or advocacy from the 

Government. See Pennsylvania v. Flaherty, 983 F.2d 1267, 1275 (3d Cir. 1993); see also

In re Caterbone, 640 F.3d 108, 111 (3d Cir. 2011) (explaining that subject-matter 

jurisdiction cannot be waived or forfeited). 
8

of our jurisdictional inquiry, because an additional statutory provision affects the breadth 

of our jurisdiction in this case.

Under 8 U.S.C. § 1252(a)(2)(C), we lack “jurisdiction to review any final order of 

removal against an alien who is removable[, inter alia,] by reason of having committed a 

criminal offense covered in [8 U.S.C. §] 1182(a)(2).” Ehikhuemhen conceded that he 

was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I), and therefore § 1252(a)(2)(C) 

plainly applies. See Alaka v. Att’y Gen., 456 F.3d 88, 102 (3d Cir. 2006); see also

Freeman v. Holder, 596 F.3d 952, 956 (8th Cir. 2010). As a result, we cannot exercise 

jurisdiction over factual or discretionary determinations made by the agency. See

Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006). However, 8 U.S.C. 

§ 1252(a)(2)(D) restores our jurisdiction to review “colorable” constitutional claims or 

questions of law. Pareja v. Att’y Gen., 615 F.3d 180, 186–87 (3d Cir. 2010). “We 

review legal determinations de novo, subject to [Chevron] principles of deference . . . .” 

Hanif v. Att’y Gen., 694 F.3d 479, 483 (3d Cir. 2012) (citation omitted).

The criminal-alien restriction on, and partial restoration of, our jurisdiction applies 

with equal force to the review of motions to reopen and to reconsider. Cruz v. Att’y 

Gen., 452 F.3d 240, 246–47 (3d Cir. 2006); accord Hanan v. Mukasey, 519 F.3d 760, 763 

(8th Cir. 2008); Durant v. INS, 393 F.3d 113, 115 (2d Cir. 2004). Thus, we may review a 

denial of a motion to reopen in this context only if the agency’s decision was contrary to 

law or rose to the level of a denial of due process. See, e.g., Alzainati v. Holder, 568 
9

F.3d 844, 850 (10th Cir. 2009). Both kinds of motions are otherwise reviewed under the 

same deferential abuse of discretion standard. Borges v. Gonzales, 402 F.3d 398, 404 (3d 

Cir. 2005).

III. Discussion

Having established our standard of review and the limitations on our jurisdiction, 

we will address each of the claims raised in Ehikhuemhen’s opening brief. 

A) Agency Misapplication of Corroboration Requirements

In his sole challenge to the BIA’s original merits decision, Ehikhuemhen 

maintains that the agency erred by departing from the corroboration process of Abdulai v. 

Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), which was codified at 8 U.S.C. 

§ 1158(b)(1)(B) by the REAL ID Act. See Dong v. Att’y Gen., 638 F.3d 223, 229 n.3 

(3d Cir. 2011). To the extent that this is a reviewable question of law, see AlvaradoCarillo v. INS, 251 F.3d 44, 49 (2d Cir. 2001), we need not reach it, because resolving 

the matter would not change the outcome of the case.

The IJ explicitly found that Ehikhuemhen could relocate within Nigeria to escape 

persecution. While the IJ did not explicitly discuss the burden-shifting framework of a 

relocation finding, the record supports that the Government showed, by a preponderance 

of the evidence, that relocation was both possible and reasonable. See 8 C.F.R. 

§ 1208.13(b)(1)(i)–(ii), (b)(2)(ii), (b)(3)(i)–(ii). Ehikhuemhen obviously disagrees, and 
10

has contested the matter since. But the BIA upheld the IJ’s relocation determination on 

appeal and thereafter—it has survived undiminished. Because a relocation finding is a 

factual question, it is unreviewable when 8 U.S.C. § 1252(a)(2)(C) applies. Cf.

Gambashidze v. Ashcroft, 381 F.3d 187, 191 (3d Cir. 2004); see also Perez-Ramirez v. 

Holder, 648 F.3d 953, 958 (9th Cir. 2011); Arboleda v. Att’y Gen., 434 F.3d 1220, 1224 

(11th Cir. 2006) (per curiam).6 Even if the agency erred in its corroboration analysis, and 

even if Ehikhuemhen were then found to have suffered past persecution, the relocation 

finding would stand, preventing him from winning asylum. Thus, relief cannot be 

granted on this claim.

B) The BIA’s Denial of Ehikhuemhen’s Motions with Respect to his Medical 

 Information

Ehikhuemhen argues that the BIA erred when it determined that reopening was not 

warranted because his medical records “were reasonably available before [his] hearing.” 

See Pet’r’s Br. 24–25; A.R. 2, 107. He maintains that “[t]he BIA’s finding regarding the 

availability of the records is not supported by substantial evidence” because “any 

reasonable adjudicator would be compelled to conclude” that Mr. Elbir could not have 

obtained the records any sooner than he did.

 

6

Ehikhuemhen does not, in his opening brief, challenge the legal test used to determine 

whether relocation was possible or reasonable. See Gambashidze, 381 F.3d at 192; see 

also Dwumaah v. Att’y Gen., 609 F.3d 586, 589 n.3 (3d Cir. 2010) (deeming waived 

those matters not raised in an opening brief). Nor is it clear that he exhausted any such 

claim before the agency. See A.R. 261 (contesting, in BIA brief, the factual aspects of 

IJ’s relocation determination); 8 U.S.C. § 1252(d)(1). 
11

Ehikhuemhen’s argument refers to 8 C.F.R. § 1003.2(c)(1), which states that “[a]

motion to reopen proceedings shall not be granted unless it appears to the [BIA] that 

evidence sought to be offered is material and was not available and could not have been 

discovered or presented at the former hearing.” While we do not appear to have 

addressed, in a precedential opinion, whether the prior unavailability of evidence is a 

factual or legal determination, the BIA here simply determined, based on the totality of 

Ehikhuemhen’s submissions, that the letter (or its equivalent) could have been discovered 

sooner. We think that this is a factual determination falling beyond the boundaries of our 

present jurisdiction—indeed, Ehikhuemhen seems to implicitly concede this by urging a 

substantial-evidence standard of review, which is reserved for issues of fact. See, e.g., 

Khan v. Att’y Gen., 691 F.3d 488, 496 (3d Cir. 2012). Accordingly, we hold that we lack 

jurisdiction to address this claim.7

C) The BIA’s Consideration of the Human Rights Watch Report

Next, Ehikhuemhen argues that the BIA “abused its discretion when it denied Mr. 

Ehikhuemhen’s motion to reopen his removal proceedings to permit consideration of the 

 

7 We note parenthetically that the medical evidence, which is limited to a single letter 

from a doctor at the University of Benin Teaching Hospital, is not quite as persuasive as 

Ehikhuemhen appears to believe. In the letter, Dr. Akhigbe refers to neurological and 

abdominal symptoms, such as a subarachnoid hemorrhage, and treatment directed at 

those symptoms. See A.R. 220; Stedman’s Medical Dictionary 127 (28th ed. 2006). But 

at his merits hearing, Ehikhuemhen testified that he was treated for leg and back injuries. 

See A.R. 384. We question whether this letter would have addressed the IJ’s concerns 
12

HRW Report.” Pet’r’s Br. 25. The BIA initially denied reopening in part because the 

incidents underlying the report were previously discoverable. See A.R. 107. The BIA

reaffirmed this aspect of its decision when denying Ehikhuemhen’s motion for 

reconsideration. See A.R. 2. In so doing, it pointed out that the burden of proof with 

regard to prior unavailability rested on Ehikhuemhen’s shoulders. See Pllumi v. Att’y 

Gen., 642 F.3d 155, 161 (3d Cir. 2011). Because the BIA’s decision rested in part on the 

availability of the evidence—a factor that sufficiently supports the outcome reached by 

the agency—we lack jurisdiction to address this claim.

D) The BIA’s Consideration of the Jamestown Report

Ehikhuemhen alleges that the BIA erred when it determined that the Jamestown 

Report was not material. Pet’r’s Br. 26–28. In other contexts, we have emphasized that 

materiality is a mixed question of fact and law. See, e.g., Simmons v. Beard, 590 F.3d 

223, 233 n.5 (3d Cir. 2009). “A mixed question of fact and law is one that requires 

application of a legal standard to a particular set of circumstances.” Huang v. Att’y Gen., 

620 F.3d 372, 384 (3d Cir. 2010) (citation omitted). These mixed questions have been 

held to be reviewable under 8 U.S.C. § 1252(a)(2)(D). See Barrios v. Holder, 581 F.3d 

849, 857 (9th Cir. 2009) (per curiam) (citation omitted); cf. Rosario v. Holder, 627 F.3d 

58, 62 (2d Cir. 2010). 

To the extent that we may review the BIA’s determination, however, we cannot 

 

regarding the extent of Ehikhuemhen’s injuries, as it is inconsistent with his testimony, is 
13

conclude that it represented an abuse of discretion. The dispute here is one of 

interpretation, as well as of the extent of risk. We cannot say that the BIA’s decision here 

is either flawed by an error of law, uses an incorrect legal standard, or is so without 

rational justification as to be legally erroneous. See Rosario, 627 F.3d at 62. 

Accordingly, we cannot grant relief on this claim.

E) Establishing a Prima Facie Case for Asylum

Ehikhuemhen argues that he has established a prima facie case for asylum via his 

supplemental submissions, when that evidence is considered in tandem with 

documentation already in the record. See INS v. Abudu, 485 U.S. 94, 104 (1988); Smith 

v. Holder, 627 F.3d 427, 438 (1st Cir. 2010). But neither of the BIA orders in question 

referred to whether Ehikhuemhen made a prima facie case for asylum; and, even if they 

had done so, we would be unable to review those outcomes. See Shardar v. Att’y Gen., 

503 F.3d 308, 313 (3d Cir. 2007) (“[W]hen [the BIA] denies a motion to reopen on the 

ground that the applicant has failed to make a prima facie showing, we . . . review that 

determination to ensure that it is supported by substantial evidence and is not an abuse of 

discretion.”); see also Larngar v. Holder, 562 F.3d 71, 79 (1st Cir. 2009) (noting that “a 

number of courts” review these cases for substantial evidence, thereby “suggest[ing] that 

we lack jurisdiction in this context,” but ultimately declining to answer the question).

IV. Conclusion

 

not a formal medical record, and is not a contemporaneous report. 
14

Having examined the claims raised in Ehikhuemhen’s brief, we conclude that we 

partly lack jurisdiction to review them, and must otherwise deny the remainder as being 

without merit. We will therefore dismiss these petitions for review in part and deny them 

in part.