FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EHI JOSEPH UNUAKHAULU,  No. 02-73837

Petitioner, Agency No.

v. A74-777-018

ALBERTO R. GONZALES,* Attorney  AMENDED

General, ORDER

Respondent. AND AMENDED

OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 3, 2004**

Pasadena, California

Filed December 20, 2004

Amended February 14, 2005

Second Amendment July 18, 2005

Order Amended August 4, 2005

Before: A. Wallace Tashima, Raymond C. Fisher and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Fisher

*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as

Attorney General of the United States, pursuant to Fed. R. App. P.

43(c)(2). 

**This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

10009
COUNSEL

Mark A. Karlin, Karlin & Karlin, Los Angeles, California, for

the petitioner. 

Francis W. Fraser, Senior Litigation Counsel, United States

Department of Justice, Washington, D.C., for the respondent.

Marc Van Der Hout, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California, for amicus curiae

National Immigration Project of the National Lawyer’s Guild.

ORDER

The text of the order filed July 18, 2005, is deleted and

replaced with the following text. 

The panel judges have voted to grant the petition for

rehearing of amicus curiae National Immigration Project of

the National Lawyer’s Guild, filed May 2, 2005. The petition

for rehearing en banc is therefore moot. 

The amended opinion filed February 14, 2005, and reported

at 398 F.3d 1085, is withdrawn, and is replaced by the Second

Amended Opinion, 02-73837, 2005 WL 1661580 (July 18,

2005). 

10012 UNUAKHAULU v. GONZALES
No further petitions for rehearing or rehearing en banc will

be considered. 

OPINION

FISHER, Circuit Judge: 

Ehi Joseph Unuakhaulu, a native and citizen of Nigeria,

petitions for review of the Board of Immigration Appeal’s

(“BIA”) summary affirmance of the Immigration Judge’s

(“IJ”) decision denying him withholding of removal and relief

under the Convention Against Torture (“CAT”). The central

question is whether we lack jurisdiction to review his petition

where the IJ found that Unuakhaulu was removable based on

his aggravated felony conviction, but neither ordered him

removed on that basis nor relied on the aggravated felony

conviction in denying Unuakhaulu’s application for withholding of removal and for relief under CAT. We conclude that 8

U.S.C. § 1252(a)(2)(C) divests us only of jurisdiction to

review orders of removal that are actually based on a petitioner’s prior aggravated felony conviction.1

 We therefore have

jurisdiction to review the BIA’s nondiscretionary denial of

withholding, which was not predicated on Unuakhaulu’s

aggravated felony. Reaching the substance of Unuakhaulu’s

petition, however, we deny it as without merit. 

I.

Unuakhaulu was admitted to the United States as a visitor

on January 17, 1986. In February 1997, he was convicted of

conspiracy to traffic in counterfeit credit cards in violation of

18 U.S.C. § 371 and sentenced to 18 months in prison. Thereafter, the former Immigration and Naturalization Service initiated proceedings against Unuakhaulu, charging him with (1)

1Hereinafter, all statutory citations are to 8 U.S.C. unless otherwise indicated. 

UNUAKHAULU v. GONZALES 10013
being subject to removal as an alien convicted of an aggravated felony, see § 1227(a)(2)(A)(iii),2

 and (2) as an alien who

remained as a visitor beyond the time authorized, see

§ 1227(a)(1)(B). As shown in the transcript of the merits hearing, the IJ sustained the charges against him, finding that

Unuakhaulu’s prior conviction for credit card fraud was an

aggravated felony and that he had remained as a visitor in the

United States beyond the time authorized. Unuakhaulu then

applied for withholding of removal and for relief under CAT.

Subsequently, the government contended that even though

Unuakhaulu received only 18 months’ imprisonment for his

prior conviction, his credit card fraud was a “particularly serious crime” that should make him ineligible for withholding of

removal under § 1231(b)(3)(B). The IJ disagreed, finding that

the crime was not particularly serious and that Unuakhaulu

was eligible for withholding of removal. 

As to the merits of his withholding of removal claim,

Unuakhaulu sought withholding based on his membership in

the Ogoni tribe in Nigeria. According to his testimony, the

Nigerian government engaged in tribal genocide of the Ogoni

people, seizing their land in the delta region for its oil and

arresting and executing Ogonis solely because of their opposition to the government. He claimed that the Nigerian government seized his father’s land in 1987. 

Unuakhaulu provided no evidence to corroborate his claim

that he was a member of the Ogoni tribe. He acknowledged

2An “aggravated felony” includes “an offense that (i) involves fraud or

deceit in which the loss to the victim or victims exceeds $10,000; . . . [or]

an offense relating to commercial bribery, counterfeiting, [or] forgery . . .

for which the term of imprisonment is at least one year; . . . [or] an attempt

or conspiracy to commit an offense described in this paragraph.”

§§ 1101(a)(43)(M), (R) and (U). 

Unuakhaulu does not dispute that his prior conviction for conspiracy to

traffic in counterfeit credit cards was an aggravated felony. 

10014 UNUAKHAULU v. GONZALES
that he was not a member of any Ogoni organization in the

United States. He said that he had friends who were members

of the Ogoni tribe in the Los Angeles area (where the hearing

took place) who perhaps could have corroborated his tribal

membership, but he did not ask any of them to testify on his

behalf. 

Unuakhaulu’s mother lives in Lagos, Nigeria, but has not

suffered any persecution on account of her Ogoni membership. His seven siblings left Nigeria because of the treatment

of the Ogoni. His uncle, a leader of the Movement to Save the

Ogoni People, was imprisoned in 1994 because he fought for

Ogoni rights and protested the government’s seizure of Ogoni

land and its arrest and torture of the Ogoni people. His uncle

is still in prison, although Unuakhaulu did not know where.

He claimed that his uncle is mentioned in an Amnesty International report that was in evidence, but he provided no documentation to corroborate that the person mentioned in the

report was indeed his uncle. 

Unuakhaulu admitted that he was not politically active

when he lived in Nigeria. When asked if there was any way

the Nigerian government could identify him in order to subject him to persecution or torture, Unuakhaulu conceded that

“[b]ecause I am not politically involved with any organization, there is no way of identifying me.” 

The IJ denied Unuakhaulu’s application for withholding of

removal and for relief under CAT, and ordered Unuakhaulu

removed. The order of removal3 provided: “It is hereby

ordered that the respondent’s application for withholding of

3

“The term ‘order of deportation’ means the order of the [immigration

judge], or other such administrative officer to whom the Attorney General

has delegated the responsibility for determining whether an alien is deportable, concluding that the alien is deportable or ordering deportation.”

§ 1101(a)(47). This definition has been held to apply to orders of removal

as well. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 940 (9th Cir.

2004). 

UNUAKHAULU v. GONZALES 10015
removal to Nigeria and relief under the Torture Convention be

denied. It is further ordered that the respondent be removed

from the United States to Nigeria.” [AR 56.] The IJ did not

state the basis upon which Unuakhaulu was being ordered

removed and did not refer to either of the two charges in the

Notice to Appear — (1) being subject to removal as an alien

convicted of an aggravated felony, see § 1227(a)(2)(A)(iii), or

(2) as an alien who remained as a visitor beyond the time

authorized, see § 1227(a)(1)(B). Unuakhaulu appealed the IJ’s

decision denying him withholding of removal and relief under

CAT to the BIA, which dismissed his appeal without an opinion. Unuakhaulu now timely petitions this court for review of

the BIA’s order. 

II.

The initial question is whether § 1252(a)(2)(C) divests this

court of jurisdiction to review the BIA’s order of removal and

denial of withholding. The government argues that it does.

We have jurisdiction “to determine whether jurisdiction

exists.” Matsuk v. INS, 247 F.3d 999, 1000-01 (9th Cir. 2001)

(quoting Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th

Cir. 2000)). 

[1] Section 1252(a)(2)(C) is a jurisdiction-stripping provision that precludes our “review [of] any final order of removal

against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)

(A)(iii) . . . .” Section 1227(a)(2)(A)(iii) in turn specifies that

“[a]ny alien who is convicted of an aggravated felony at any

time after admission is deportable [i.e., removable].”

4

 Nonetheless, an alien such as Unuakhaulu deemed removable

4Because the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 merged deportation and exclusion proceedings into the

broader category of removal proceedings, an alien who was previously

“deportable” is now “removable.” See Mariscal-Sandoval v. Ashcroft, 370

F.3d 851, 854 n.6 (9th Cir. 2004). 

10016 UNUAKHAULU v. GONZALES
because of his aggravated felony may in limited circumstances still be eligible for withholding of removal if the

aggravated felony is not a “particularly serious crime.” See

§ 1231(b)(3)(B)(ii). 

For purposes of determining whether the § 1231(b)(3)

(B)(ii) exception applies, the statute construes “particularly

serious crime” differently depending upon the type of relief

being sought. In the context of asylum, a person convicted of

an aggravated felony “shall be considered to have been convicted of a particularly serious crime,” and is thus automatically barred from asylum relief in removal proceedings. See

§§ 1158(b)(2)(A)(ii), (B)(i); United States v. Corona-Sanchez,

291 F.3d 1201, 1210 n.8 (9th Cir. 2002) (en banc) (noting that

aggravated felons are “barred from eligibility for asylum”

under §§ 1158(b)(2)(A)(ii), (B)(i)).5 In the context of withholding of removal, however, the bar to relief is more narrowly construed: an aggravated felony conviction is

considered to be a particularly serious crime (1) automatically, if the applicant was sentenced “to an aggregate term of

imprisonment of at least five years”; or (2) if the Attorney

General, in his discretion, determines that an aggravated felony conviction resulting in a sentence of fewer than five years

was in fact a particularly serious crime. See § 1231(b)(3)(B).

We lack jurisdiction to review the latter denial of withholding

based upon this exercise of the Attorney General’s discretion.

Matsuk, 247 F.3d at 1002. In Matsuk, however, we left open

the “still narrower question” of whether the court has jurisdiction to review “non-discretionary denials of withholding” —

that is, a decision not based on the alien’s aggravated felon

status but on the merits of his withholding claim. Id. (emphasis added). 

Thus, there are two relevant provisions which, if applicable, divest us of jurisdiction to review an order denying with5Unuakhaulu does not dispute the IJ’s finding that his prior aggravated

felony conviction bars him from eligibility for asylum. 

UNUAKHAULU v. GONZALES 10017
holding of removal. First, “when the alien has been sentenced

to an aggregate term of imprisonment of at least 5 years,”

§ 1231(b)(3)(B), he is automatically barred from withholding

of removal and we have no jurisdiction because the alien is

being removed “by reason of having committed a criminal

offense.” § 1252(a)(2)(C) (emphasis added). Second, when

the Attorney General decides that the alien’s offense was a

“particularly serious crime,” § 1231(b)(3)(B), we lack jurisdiction to review such a decision because it is discretionary.

§ 1252(a)(2)(B)(ii); Matsuk, 247 F.3d at 1002. Neither jurisdictional bar applies in this case because Unuakhaulu received

only 18 months’ imprisonment for his prior conviction for

credit card fraud and the IJ specifically found that his conviction was not a particularly serious crime. Indeed, she did not

rely at all on his conviction as the basis for denying his application for withholding of removal. 

The IJ found that Unuakhaulu’s prior conviction for conspiracy to traffic in counterfeit credit cards was an aggravated

felony that made him ineligible for asylum and voluntary

departure. (Unuakhaulu does not dispute this finding.) The IJ

also found, however, that Unuakhaulu’s aggravated felony

conviction was not a particularly serious crime because he

served only an 18-month sentence, there was no restitution

order for him to pay and he had not employed force in his

crime. (The government does not dispute this finding.) The IJ

therefore found that Unuakhaulu’s prior conviction did not

preclude him from requesting withholding of removal. She

then went on to deny his request for withholding of removal

and for relief under CAT because Unuakhaulu failed to establish those claims on the merits. 

The government nonetheless contends that because

Unuakhaulu was convicted of an aggravated felony, we lack

jurisdiction over his petition for review because the jurisdictional bar of § 1252(a)(2)(C) extends to all orders of removal

of an individual who has committed an aggravated felony.

However, we have held that the jurisdiction-stripping provi10018 UNUAKHAULU v. GONZALES
sion in § 1252(a)(2)(C) applies only when — and to the extent

that — the agency has found the petitioner to be removable

based on one of the enumerated criminal grounds. See

Alvarez-Santos v. INS, 332 F.3d 1245, 1253 (9th Cir. 2003)

(holding in part that the “by reason of” language of

§ 1252(a)(2)(C) “precludes judicial review only when [1] an

alien is actually determined to be removable and [2] ordered

removed on the basis of the covered criminal act”) (emphasis

added); see also Cazarez-Gutierrez v. Ashcroft, 382 F. 3d

905, 919-20 (9th Cir. 2004) (holding that the court lacked

jurisdiction to review a petition where the “basis of the [petitioner’s] removal was his drug offense and the BIA did not

overturn the IJ’s correct conclusion that [the petitioner] is

removable because of his offense.”) Thus, in Alvarez-Santos,

we rejected the government’s position that “§ 1252(a)(2)(C)

precludes judicial review of an otherwise reviewable removal

order where the record establishes that the individual could

have been but was not ordered removed for having committed

a covered criminal offense.” Alvarez-Santos, 332 F.3d at

1250, 1253 (emphasis in the original). 

The government also argues that Matsuk “should be” interpreted as supporting the application of § 1252(a)(2)(C) to bar

review of the denial of withholding of removal whether or not

the decision to deny withholding was based upon the Attorney

General’s discretion under § 1231(b)(3)(B). In Matsuk, however, we specifically declined to reach the question of whether

we had jurisdiction to review “non-discretionary denials of

withholding” — that is, denials of withholding on the merits.

See Matsuk, 247 F.3d at 1002. 

[2] Taken together, Alvarez-Santos and Matsuk lead us to

conclude that there is no jurisdictional bar over all petitions

for review filed by petitioners with an aggravated felony conviction in their past. Matsuk bars jurisdiction over a discretionary denial of withholding pursuant to a finding of a

“particularly serious crime” under § 1231(b)(3)(B). 247 F.3d

at 1002. Alvarez-Santos holds that the “by reason of” lanUNUAKHAULU v. GONZALES 10019
guage of § 1252(a)(2)(C) “strips us only of jurisdiction to

review orders of removal predicated on commission or admission of a crime, not orders of removal not so predicated.” 332

F.3d at 1247. Here, although the IJ determined that

Unuakhaulu was removable on the basis of the covered criminal act, she did not order him removed on that basis. Indeed,

the IJ neither specified the basis upon which Unuakhaulu was

removed nor stated that Unuakhaulu was ordered removed

based on the charges in the Notice to Appear. Although the

IJ could have ordered Unuakhaulu removed based on his

aggravated felony conviction, she did not explicitly do so.

Moreover, the substance of the IJ’s decision demonstrates that

she did not predicate her denial of relief on Unuakhaulu’s

aggravated felony conviction. Instead, the IJ denied his application for withholding of removal and for relief under CAT

based on Unuakhaulu’s failure to demonstrate that he would

suffer persecution if he returned to Nigeria. We accordingly

reject the government’s invitation to extend the jurisdictionstripping provisions to circumstances where they do not

apply. See Alvarez-Santos, 332 F.3d at 1250 (“[T]here is a

strong presumption in favor of judicial review of administrative action. . . . Accordingly, we . . . construe narrowly restrictions on [our] jurisdiction to review INS orders removing

aliens who have been in this country, legally or otherwise.”)

(internal quotation marks and citations omitted). 

[3] Because the BIA did not (1) order Unuakhaulu removed

based on his aggravated felony conviction, and (2) did not

predicate its denial of withholding of removal and relief under

CAT on Unuakhaulu’s aggravated felony conviction or on a

discretionary decision, we have jurisdiction to review

Unuakhaulu’s petition. 

III.

Turning to the merits of Unuakhaulu’s petition, we conclude that there is substantial evidence in the record to support

10020 UNUAKHAULU v. GONZALES
the IJ’s decision to deny Unuakhaulu’s application for withholding of removal and for relief under CAT. 

Because the BIA summarily affirmed the IJ’s decision, we

review it as if it were the BIA’s decision. See Cedano-Viera

v. Ashcroft, 324 F.3d 1062, 1063 n.1 (9th Cir. 2003). We

review legal questions the IJ addressed de novo. See

Hernandez-Montiel v. INS, 225 F.3d 1084, 1090 (9th Cir.

2000). “The [IJ]’s interpretation of immigration laws is entitled to deference” when her interpretation is not “clearly contrary to the plain and sensible meaning of the statute.”

Kankamalage v. INS, 335 F.3d 858, 862 (9th Cir. 2003). We

review the IJ’s factual findings under the deferential substantial evidence standard. See Hernandez-Montiel, 225 F.3d at

1090. We uphold the IJ’s determination “unless the evidence

presented would compel a reasonable finder of fact to reach

a contrary result[.]” Singh-Kaur v. INS, 183 F.3d 1147, 1149-

50 (9th Cir. 1999) (emphasis in original). 

[4] An alien is eligible for withholding of removal “if [ ]he

demonstrates a clear probability of persecution” in the country

to which he would be removed, “which means it is more

likely than not that [ ]he will be persecuted if deported.”

Halaim v. INS, 358 F.3d 1128, 1132 (9th Cir. 2004) (internal

quotation marks omitted); see 8 C.F.R. § 208.16(b)(2). The

alien bears the burden of proving that his “life or freedom

would be threatened in the proposed country of removal on

account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 208.16(b).

If the alien can demonstrate that he suffered past persecution,

then the court presumes a reasonable fear of future persecution. 8 C.F.R. § 208.16(b)(1)(i). 

[5] Unuakhaulu does not claim that he was ever subjected

to past persecution. When asked if there was any way the government could identify him as Ogoni in order to subject him

to persecution or torture, Unuakhaulu conceded that he would

not be recognized unless he was on tribal lands in the delta

UNUAKHAULU v. GONZALES 10021
region of Nigeria or politically active. Thus, if he returned to

Lagos, the city in which his mother resides, he would not be

singled out as Ogoni. His concession that the Nigerian government could not identify him as Ogoni, coupled with his

admission that he was not persecuted in the past, demonstrate

that Unuakhaulu has not met his burden of proving that it is

more likely than not that he would be subject to persecution

on account of his tribal affiliation. 

Unuakhaulu argues that the IJ found his testimony credible.

He also argues that the IJ erred because she based her denial

of his application on his failure to provide corroborative evidence. He claims that corroborative evidence is not always

necessary and that he provided corroboration through the

United States Department of State Country Report and the

Amnesty International report. 

Once an applicant’s testimony is deemed credible, no further corroboration is necessarily required to establish the facts

to which the applicant testified. See Kaur v. Ashcroft, 379

F.3d 876, 890 (9th Cir. 2004); 8 C.F.R. § 1208.16(b) (“The

testimony of the applicant, if credible, may be sufficient to

sustain the burden of proof without corroboration.”). However, “where the IJ has reason to question the applicant’s

credibility, and the applicant fails to produce non-duplicative,

material, easily available corroborating evidence and provides

no credible explanation for such failure, an adverse credibility

finding will withstand appellate review.” Sidhu v. INS, 220

F.3d 1085, 1092 (9th Cir. 2000); see Chebchoub v. INS, 257

F.3d 1038, 1044-45 (9th Cir. 2001). Country conditions evidence generally provides the context for evaluating an applicant’s credibility, rather than corroborating specifics of a

claim. See Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th

Cir. 1999).

Contrary to Unuakhaulu’s contention, the IJ expressly

found that his testimony lacked credibility. She found that

parts of his testimony were “meager and nonspecific” and that

10022 UNUAKHAULU v. GONZALES
“[t]he absence of corroborative evidence where one would

reasonably expect there to be, along with an adequate explanation of why such evidence was not obtained nor presented

leaves the Court to draw an adverse inference regarding the

credibility of the respondent’s claim.” She also found that corroborating proof was “more than necessary here because the

respondent’s conviction is for a crime involving fraud which

already undermines his credibility.” 

The IJ’s finding is supported by the record. Corroborative

evidence in this case would have been readily available.

Unuakhaulu testified that he had continuous contact with

Nigeria, yet he provided no corroboration regarding significant factors of his claims such as his membership in the

Ogoni tribe or verification that his uncle was indeed the man

mentioned in the Amnesty International report. The IJ noted

that Unuakhaulu could have obtained affidavits from his family members in Nigeria or had his friends in the Los Angeles

area testify on his behalf, but he did not. 

The IJ found that Unuakhaulu’s testimony “basically paralleled” information contained in the Country Report — that

Ogonis who live in their homeland, the delta region of Nigeria, who are political activists are identifiable as Ogonis and

thus may be subjected to persecution by the Nigerian government. This, however, did not establish that Unuakhaulu is a

member of the Ogoni tribe or that it is more likely than not

that he would be subjected to persecution if he were deported

to another region of Nigeria outside of the delta region. 

[6] The IJ’s findings were supported by substantial evidence, and Unuakhaulu failed to meet his burden of proving

that he suffered past persecution or that there is a clear probability of future persecution. We therefore deny his petition for

review. 

IV.

In order to establish eligibility for protection under CAT,

Unuakhaulu must demonstrate “that it is more likely than not

UNUAKHAULU v. GONZALES 10023
that he [ ] would be tortured if removed. . . .” 8 C.F.R.

§ 208.16(c)(2). Torture is defined under CAT as an act

involving severe pain or suffering that “is inflicted by or at

the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.”

8 C.F.R. § 208.18(a)(1). As detailed above, Unuakhaulu did

not present evidence that it is more likely than not that he

would be tortured by, at the instigation of or with the consent

of the Nigerian government were he to be removed to Nigeria.

Because Unuakhaulu is ineligible for relief under CAT, we

deny his petition. 

V.

For the foregoing reasons, we hold that we have jurisdiction to review the BIA’s decision denying Unuakhaulu’s

application for withholding of removal and for relief under

CAT. The BIA’s decision is supported by substantial evidence in the record and is AFFIRMED. 

10024 UNUAKHAULU v. GONZALES