2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
1-15-2004 

# Adeg bit e Olubi v . Att y Ge n U S A P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-4349

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

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w . v i l l a no va . e du . Re c omme nde d C it at ion
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w . v i l l a no va . e du/thir dc ir c uit_2004/1090NOT PRE CEDENT IAL

UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT
No. 02-4349

AD EG BITE OL UB I,

Petitioner
v. JOHN ASHCROFT, ATTORNEY GENERA L OF THE UNIT ED STA TES OFAMERI CA, Respondent

Petition for Revi ew of an Order of the Bo ard o f Imm igration Ap peals

(A72 783 891)
Submitte d Under Third Circ uit LAR 34.1(a)

January12, 2004 Be for e: S LO VI TE R, R EN DE LL and AL DI SE RT , Circu it Judges

(Fil ed: Januar

y 15, 2004)

OPINI ON OF THE COURT2

SL OV ITE R, Circuit

Judge
. Adegbite Olubi file d this petit ion for r eview chall enging the October 29, 2002 Board of Immigration Appeals ( BIA) affirmance of t he decisi on of the Immigr ation J udge (IJ) denyi ng Olubi’s applications for asy lum, withholding of removal, and pr otection und er the C onv ention Ag ainst T orture . The IJ con clude d that O lubi ha d no t met h is burden of proof wit

h respect to each of hi s clai ms because his testimony regarding religious persecution in Nigeria was not credible. Olubi argues that the IJ’s adverse credibility determination w as not supp orted by substantial eviden ce and tha t the BIA ’s
sum mary af firma nce o f the IJ ’s dec ision v iolated his righ t to due proc ess un der the Fifth Am end me nt. W e w ill aff irm. I. In November 1991, Adegbit e Olubi, a Nigerian citi zen, entered the United States on a touri st vi sa that

was set t o expire May 15, 1992. Becaus e Olubi st ayed i n the Unite d States beyond t

he expiration date, the Immigration and Natura lization Service orde red Olubi to appe ar for r emoval proceedi ngs. Olubi admitt ed to the IJ that he had over -stayed hi s vi sa , b ut , b as ed o n a c la im o f r el ig io us p er se cutio n, Olu bi app li ed f oras y lu m, restrictions on re moval, withholding under the Conventi on Against Tort ure, and, in the alter nativ e, vo lun tary de par ture , and sub mitte d an aff idav it in su ppo rt the reo f. Du ring h is hear ing b efore the IJ, O lubi testif ied tha t M uslim s had perse cuted him and h is fathe r beca use th ey wer e Pen tecosta l Chr istian m inisters w ho p reach ed at re vivals3

and live d in a predomi nantly Muslim northern city , Kano, fr om 1977 to 1987. Olubi testifie d that a

group of Muslims who “sai d theydidn’t want to hear

about God” physi call y attacked and beat him and hi s family en route to a stor e, but

Christian poli ce officer s eventual ly came to their resc ue. AR at 114. Olubialso st ated that his father once had a roc k throw n at his car and his father receive d “som e” threatening letters. How ever, Olu bi co uld not rem em ber the d ate o r the year o f this eve nt. Olubi tes tifi ed that , in 1983 or 1984, his father

and stepmothe r were att acked and cut w ith a kn ife ne ar La gos. A lthoug h no ne of the ass ailants m ade a ny refere nce to reli gion, Olubisurmised t hat the atta ckers were Musli ms because pray er beads fel l out of
one of th e as saila nt’s p ock ets. With respec t to hi s own personal e xperienc es, Olubitestifie d that he was ordained as a p astor a t age e ightee n in 1 982 , thoug h his a ffida vit stated that he wa s orda ined in 198 4. W hen O lubi state d that h e trave led be twee n K ano a nd L agos three tim es pe r mo nth in his capacity

as a minister, the IJ asked him the distance and traveltime between these loca tion s. O lub i state d th at it to ok f our or f ive h our s, bu t did not kno w th e dis tanc e. Initially, Olub i stated th at the p olice n ever a rrested or de tained him b ased on h is reli gion and that his familyhad excell ent rel ations with poli ce. On cross -examination, however, he al so test

ifie d that t

he polic e ransacke d his home in 1984. Olubi tes tifi ed that

in 1986 he and other Chris tians atte nding a Chris tian revival were att acked – kicked, slapped, and cut – bya large group of Muslims i n Kano. Olubi4

stat ed that

approximat ely200 people were ki lled and that he decided t o come to the United States based on hi s fear t hat he would be ki lled i f he returned. Olubidescri bed the 1986 atta ck on Christians i n his affi davit, but fai led to mention that he was present

at that atta ck and that

he sustained inj uries as a res ult of hi s attendance. After heari ng Olubi’s testi mony, t he IJ deni ed each of Olubi’ s appli cati ons on June 7, 2000, prim arily based on his find ing that Olu bi was n ot credible. Ho wev er, the IJ furthe r stated th at, even if O lubi’s tes timon y were credib le, Olu bi and his fam ily experie nced “isol ated i ncident s of hosti lit y and ange r from the rival Musli m factions and have been als o victi mized by isol ated i ncident s of viol ence.” App. at 37-38. Although the IJ acknowledged hostili ty between Christ ians and Musli ms in Nigeri a, the IJ found no evide nce th at the N igerian gov ernm ent co ndo ned v iolenc e aga inst C hristians or faile d to take steps to cal m religi ous confli cts. Moreover, theIJ rej ected Olubi ’s cl aim that he
wo uld b e pers ecute d if he return ed to N igeria b ecau se O lubi w ould enco unter little diffi culty if he re turned t o a predominantly Christian are a of southern Nigeria, rather than the more Mu slim area in the n orth. Becau se the IJ foun d insufficien t evidence to su pport Olubi’s a sylum application, he also deni ed Olubi’s applic ation f or withhol ding of removal and tort ure cla im, both of which requi re a highe r evident iaryburden of proof t

han asy lum claim s. Th e IJ a lso d enie d O lub i’s m otio n fo r vo lun tary de par ture . Olubi ap pealed the IJ’s d ecision to the B IA and on O ctober 29, 20 02, the BIA affirmed wit

hout opini on, making the IJ’s decisi on the fi nal agencydetermi nation f or5

rev iew
. Gao v. Ashcroft , 299 F.3d 266, 271 (3d Cir. 2002). On November 29, 2003, Olu bi filed a petition for re view in this co urt. II. The Government argues t hat thi s court

lacks j urisdi ction to review Olubi’ s peti tion because i t was fil ed on November 29, 2002, t hirty- one days after

the BIA’s October

29, 2002 affirmance. The Immigrati on and National ity Act (INA) provide s that “[t]he petit ion for r eview must be fi led not l ater t han 30 days after

the dat e of the fi nal order of removal, ” 8 U.S.C. § 1252 ( b)(1); the Government contends that Olubi’s pe tition was untimel y fi led and deprives t his court of jurisdi ction. However, the thirtieth day after the BIA’s decisi on fell on November 28, Thanksgivi ng, a l egal hol iday . FederalRule of Appellat e Procedure 26 ( a) (3) provides that when the last day of a t

ime-peri od is a l egal hol iday th e las t day sh oul d no t be in clud ed in the c om put ation of th e tim e-p erio d. Excluding t

he legalholiday , Olubi’ s peti tion was timelyfile d on the thirti eth dayafter the BIA ’s decision, N ovem ber 29. W e have jurisdiction to review O lubi’s claims und er 8 U.S.C. § 1252. Olubi makes two principal cl aims: first , the IJ erred in making an adverse credibi lit y determination in eva luati ng Olubi’s religi ous persec ution cl aim; and se cond, the BIA denied Olubi his Fif th Amendment due process right by summari ly affirmi ng the IJ’s decisi on without opi nion or expl anati on of the re asons for i ts affirmance.6 III. As mentioned above, we review the I J’s opi nion as t he finalagency decisi on because the BIA affirmed without opinion. The IJ found that Olubi had not sati sfied t

he bur den of p rov idin g cr edib le ev iden ce to sup por t his a sylum claim
. See Gao , 299 F.3d at 272 . The IJ’s ad verse credib ility determin ation w as a fin ding of fa ct, which we review und er th e su bsta ntial evid enc e tes t. Id. We have recentl y expl ained the substantial evidence test as foll ows: [T]he question whether a n agency determi nation i s supported by s ubstantial evidence i s the same as the quest ion whether a

reasonabl e fact fi nder could make su ch a d et er mi na ti on b as ed upo n the ad mi ni st ra ti ve re co rd
. . . . Thu s, whe re we review an IJ’s credib ility determin ation, w e mu st ask w hethe r the de termin ation is supporte d by evi dence that a reasonabl e mind would find adequate. We look at an adverse credibil ity

determi nation to ensure that it was ‘appropri atel y bas ed on incon sistent sta teme nts, con tradicto ry eviden ces, an d inh erently im prob able testim ony . . . in view of th e ba ckg rou nd e vid enc e on cou ntry co ndi tion s.’
Dia v. Ashcroft , 2003 W L 229 98113 , at *13-*14 (3d Cir. D ec. 22, 200 3) ( en banc ) (cit ations omitt ed) . Wh ile reco gnizin g the d efere nce d ue to a n IJ’s c onclu sion w hen it is based upon the record, we have cautioned t hat IJ s may not

unduly relyon unsupporte d infe ren ces , spe cula tion , con jectu re, o r op inio ns th at lac k fo und ation in th e rec ord
. Id. at *14. Moreover, the IJ ’s deci sion must provide s pecifi c, cogent reasons f

or reachi ng cred ibility de term inati ons . Id. The IJ expla ined that he found Olubi not credible becaus e there were “too many contradi ctions between [Olubi’ s] te sti mony and his sworn affidavi t.” App at 36-37. For7

exam ple, in h is affid avit, O lubi de scribe d the 1 986 attack on C hristians in K ano, b ut it was not unti l the he aring t hat Olubi volunteere d that he had been prese nt at t he Kano gathe ring, attac ked, a nd injured. S imilarly, the IJ n oted th at Olu bi testified that his f amily had good relations with the l ocal pol ice, despite his st atement i n the affi davit t hat the police ransa cked his fath er’s ho me. L astly, the IJ state d that O lubi w as “n ot able to tell the Cou rt when certain very important thing s happe ned in his life.” A pp. at 37. In particu lar, the IJ w as trou bled b y Olub i’s inab ility to recall the d ate or yea r wh en his fam ily was atta cked or to re call the d ate of his ord ination as a m inister. Fu rther, de spite havin g testifie d that h e trave led be twee n La gos a nd K ano th ree tim es m onth ly, Olubi d id not k now the dista nce b etwe en the two cities. A s such , the IJ listed seve ral spe cific discrepanc ies betwee n Olub i’s affidavit testimony and his hearing testimo ny. The IJ fur ther poi nted to sp ecif ic tra um atic lif e ev ents for wh ich O lub i cou ld n ot p rov ide a date
. In each ca se, the IJ’s conclusion s are firmly rooted in the ev idence pre sented in the rec ord and are n ot sp ecu lativ e, arb itrary o r co njec tura l. Although Olubi now argues that t hese omissi ons and disc repanci es are minor or immateri al to hi s asy lum clai m, we disagre e. For exampl e, we find t hat Olubi’ s test

imony regardi ng the 1986 attack on Chri sti ans to be bot h a major el ement of his case and mate rial to his a sylum cla im. It is no t surprisin g that th e IJ w ould be inc redu lous th at, wh ile Olu bi des cribed the 19 86 atta ck in h is affid avit, he f ailed to recog nize th at it wo uld be rele vant to mention that he was present

at the atta ck and was beaten, slapped, and cut8

during t his attack. Although Olubi now explains that his “affidavi t included general information,” rather

than speci fic det ails , Olubi’ s explanat ion is undercut by

the fact that his aff idavit in clude s signif icant d etail on myriad to pics, su ch as his up bring ing, his family’s involvem ent in ministry, and harassm ent faced by his father. Olubi als o suggests that t he IJ erred in fi nding incons ist encies wit hin his testimony regardi ng his famil y’ s rel ations with poli ce. As menti oned above, t he IJ was concerned beca use, o n direc t exam ination , Olub i stated th at his fa mily had not h ad pr oblem s with the poli ce, but

then on cros s-examinat ion, Olubitestifie d that hi s home had been
ransa cked by the po lice. O lubi no w e xplain s that, altho ugh the po lice ran sack ed his hou se in 1 984 in the so uthern area o f La gos, O lubi tho ugh t that the I J had aske d him specifi call y about

the nort h, not t he south. In fact , the record s hows that t he IJ aske d Olu bi on direct e xam ination abou t his fam ily’s relations in both the nor th (Kano) and t

he south (Lagos ). I n descri bing both regions, however, Olubi f aile d to dis close t

hat the police ransacked hi s home. The IJ di d not err in findi ng this inconsi stencyto impugn Olu bi’s c red ibility. Lastly, although a reaso nable fac t finder migh t have bee n less troubled b y Olubi’s inability to rec all the d ates of traum atic life e vents that oc curred in his ch ildhoo d, this court i s not t asked with t he dutyof re-weighi ng whether it would have been more reasonabl e to rea ch an alt ernati ve conclusi on. It is suff icie nt that

the IJ ’s deci sion was reasonabl e and support ed by t he record. Because the I J’s fi nding res ted upon sever alincon sistenc ies, discre panc ies, and shortc om ings in Olu bi’s testim ony, w e can not h old

that t he IJ’s adverse credibil ity determi nation was unreasonable
.

IV. We have p lenary review ov er Olub i’s Fifth Am endm ent challenge to the BIA ’s imm igra tion pro ced ure s. Abdulrahman v. Ashcroft , 330 F.3 d 58 7, 59 5-9 6 (3 d C ir. 20 03)
. Olubi’s Fi fth Amendment clai m is forecl osed by this court’ s recent decisi on in Dia , 2003 WL 22998113, in which we held that the streamlining reg ulations, which permit the B IA to issue an af firma nce w ithout o pinion , do no t violate th e due proc ess cla use o f the F ifth Am end me nt. Id. at *9-*10. V. We wi llde ny th e Go ve rn men t’ s mo ti on to di smi ss fo r l ac k of ju ri sd ic ti on and w e wil l d en y Olu bi ’s Pet

it io n f orRev ie w.

________________________ TO THE C LERK:

Please fi le the foregoing opi nion
/s/ Dolores K . Sloviter Circuit Judge