NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-4726

___________

KAMORUDEEN SOWEMIMO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A075-821-925)

Immigration Judge: Honorable Andrew Arthur

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 23, 2011

Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges

(Opinion filed: July 5, 2011)

___________

OPINION

___________

PER CURIAM

Kamorudeen Sowemimo petitions for review of the Board of Immigration 

Appeals’s (“BIA”) decision dismissing his appeal from an Immigration Judge’s (“IJ”) 

order denying Sowemimo’s application for relief under the Convention Against Torture 

(“CAT”) and directing his removal to Nigeria. For the reasons that follow, we will 
2

dismiss the petition for review.

I

Sowemimo, a citizen of Nigeria, entered the United States without inspection in 

1993. However, he obtained conditional permanent resident status in 1998 and, in March 

2001, became a lawful permanent resident. In September 2001, Sowemimo was 

convicted in federal court of participating in a conspiracy to distribute heroin, and he was 

sentenced to 168 months’ imprisonment.

In 2009, Sowemimo was served with a notice to appear, which charged him as 

removable for, among other things, having committed an aggravated felony. Sowemimo

appeared before the IJ and conceded all of the charges against him, but sought relief 

under the CAT. Sowemimo explained that, in 2003, a fellow inmate attempted to 

sexually assault him. Although Sowemimo was initially overpowered, he was able to 

fend off his attacker with other inmates’ help. Sowemimo was then transferred to a 

different facility and given counseling. Sowemimo argued that homosexual contact is 

illegal in Nigeria and, because his attack had become public knowledge in Nigeria after 

he told his relatives, he would be subject to torture. Sowemimo was particularly 

concerned that authorities would torture him to coerce a false confession that he willingly 

engaged in homosexual contact, such a confession being necessary for a conviction under 

Nigerian law, and that he would be imprisoned or executed.

In support of his CAT application, Sowemimo submitted notes from his 

psychologist indicating that he fears returning to Nigeria because he would be perceived 
3

as homosexual, as well as news articles and country reports indicating that Nigeria 

generally treats homosexuals poorly and criminalizes homosexual relationships. The IJ 

denied relief, reasoning that Sowemimo failed to demonstrate a likelihood that he would 

be tortured by or at the instigation of, or with the consent or acquiescence of, a public 

official. In the IJ’s view, Sowemimo did not present sufficient evidence that Nigeria 

punishes individuals for engaging in homosexual relationships abroad or for being the 

victim of a sexual assault perpetrated by a person of the same sex.

On appeal, the BIA conducted de novo review and, agreeing with the IJ’s 

determination, dismissed Sowemimo’s appeal. Sowemimo filed a petition for review, but 

we granted the Government’s unopposed motion to remand in light of this Court’s 

decision in Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010). See C.A. No. 10-1565 

(order entered August 10, 2010). On remand, the BIA applied the Kaplun framework for 

reviewing the IJ’s decision and reached the same conclusion, i.e., that the IJ’s decision 

was correct. Sowemimo then filed this petition for review.

II

As the Government argues in its brief, we generally lack jurisdiction to review a 

final order of removal against a criminal alien, like Sowemimo, who is removable for 

having committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). Even when this 

jurisdiction-stripping provision applies, we may review “constitutional claims or 

questions of law” raised in a petition for review. See § 1252(a)(2)(D). However, “[o]ur 

jurisdiction in that respect is ‘narrowly circumscribed’ in that it is limited to ‘colorable 
4

claims or questions of law.’” Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010) 

(quoting Cospito v. Att’y Gen., 539 F.3d 166, 170 (3d Cir. 2008) (per curiam)) (quotation 

marks and citation omitted in original). A claim is not colorable if “it is immaterial and 

made solely for the purpose of obtaining jurisdiction or is wholly insubstantial and 

frivolous.” Id. (internal quotation marks and citation omitted). We must therefore 

determine at the outset whether Sowemimo’s petition raises a colorable legal or 

constitutional question, as distinguished from factual questions over which we lack 

jurisdiction. See Alaka v. Att’y Gen., 456 F.3d 88, 102 (3d Cir. 2006).

As we explained in Kaplun, an IJ’s evaluation of a CAT claim includes two 

distinct questions: “(1) what is likely to happen to the petitioner if removed; and (2) does 

what is likely to happen amount to the legal definition of torture?”1

Construing Sowemimo’s pro se petition liberally, we discern only two possible 

legal arguments over which we might have jurisdiction. First, Sowemimo characterizes 

the sexual assault he endured as torture and suggests that the attack therefore qualifies 

 602 F.3d at 271. The 

first of these two questions is a factual matter. See id. Sowemimo’s primary argument 

on appeal is that the IJ and BIA erred in concluding that he did not show a likelihood that 

he will be harmed if he returns to Nigeria. This plainly amounts to an attack on the 

Agency’s factual determination, and we lack jurisdiction to entertain Sowemimo’s 

argument.

 1

 To prevail on a claim for relief under the CAT, an applicant “bears the burden of 

establishing ‘that it is more likely than not that he . . . would be tortured if removed to 

the proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 

2002) (quoting 8 C.F.R. § 208.16(c)(2)).
5

him for CAT relief. Although we express our agreement with the IJ that Sowemimo was 

the victim of an unconscionable sexual attack, the violence he suffered while incarcerated 

in the United States does not, under the governing law, provide a basis for deferring his 

removal to Nigeria.2

Next, Sowemimo argues that the BIA impermissibly ignored evidence. Although 

Sowemimo correctly notes that the BIA must consider evidence that is favorable to him, 

see Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 107 (3d Cir. 2010), the BIA’s review is 

limited to the record before the IJ. See 8 C.F.R. § 1003.1(d)(3)(iv) (“the Board will not 

engage in factfinding in the course of deciding appeals”). The evidence Sowemimo 

claims the BIA should have examined consists almost entirely of articles and reports 

presented for the first time in his petition for review. Neither the BIA nor this Court 

could review these new documents, see Berishaj v. Ashcroft, 378 F.3d 314, 329-30 (3d 

Cir. 2004), and the BIA’s opinion reflects that it considered the record before it, which is 

all the law requires. See Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (the BIA 

need not “‘expressly parse . . . each individual argument or piece of evidence offered by 

the petitioner . . .’” (quoting Wang v. BIA, 437 F.3d 270 (2d Cir. 2006))). In sum, 

Sowemimo has not raised a colorable legal or constitutional claim in his petition for 

review.

 See generally 8 C.F.R § 1208.16(c)(3).

Accordingly, we will dismiss the petition for review.

 2

 In any event, it does not appear that Sowemimo presented this argument to both the 

IJ and BIA. Thus, his argument is unexhausted, and we lack jurisdiction to review it. 

See Lin v. Att’y Gen., 543 F.3d 114, 120 & n.6 (3d Cir. 2008).