FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL O. OYENIRAN, AKA Daniel  Nos. 09-73683

Olu Abraham, AKA Daniel Segun 10-70689

Oyeniran, Agency No.

Petitioner, A091-426-019

v.  ORDER

ERIC H. HOLDER Jr., Attorney AMENDING

General, OPINION AND

Respondent. AMENDED

OPINION 

On Petitions for Review of Decisions of the

Board of Immigration Appeals

Argued and Submitted

February 6, 2012—San Diego, California

Filed March 6, 2012

Amended May 3, 2012

Before: M. Margaret McKeown and Milan D. Smith, Jr.,

Circuit Judges, and Rudi M. Brewster, District Judge.*

Opinion by Judge Brewster

*The Honorable Rudi M. Brewster, Senior United States District Judge

for the Southern District of California, sitting by designation. 

4633
COUNSEL

Philip D. Bartz (argued) and Nicholas S. Sloey, Bryan Cave

LLP, Washington, D.C., for the petitioner-appellant.

Enitan O. Otunla (argued) and Francis W. Fraser, Office of

Immigration Litigation, United States Department of Justice,

Washington, D.C., for the respondent-appellee.

ORDER

Respondent’s Motion to Amend the Opinion filed March 6,

2012, slip op. 2577, 672 F.3d 800, is hereby GRANTED.

The Opinion shall be amended as follows, at slip op. at

2589, 672 F.3d at 807, after the heading <B. New Evidence

that Arose after the First Decision Impacts Deferral >, the

first complete sentence and the citation are deleted and

replaced with the following text, including footnote 5:

The BIA erred when it reasoned that collateral

estoppel did not apply because deferral is “properly

considered . . . on a de novo basis.”

5

5

 The BIA did not cite any authority for this proposition; however, there is similar language in the

regulation governing termination of CAT deferral of

removal. 8 C.F.R. § 1208.17(d)(3). Oyeniran’s case

was in a different, though analogous, procedural posture. See supra note 4. 

4636 OYENIRAN v. HOLDER
Future petitions for rehearing will not be accepted from the

filing of the amended opinion.

OPINION

BREWSTER, Senior District Judge:

Petitioner Daniel O. Oyeniran (“Oyeniran”), a citizen of

Nigeria, seeks review of decisions by the Board of Immigration Appeals (“BIA”) to deny him protection under the Convention Against Torture (“CAT”) and to deny his motion to

reopen the case to consider new evidence.1 We hold that collateral estoppel binds the BIA to its prior determination of the

facts and legal consequences regarding past incidents of

government-sponsored violence against Oyeniran’s family

due to his father’s activities supporting Christianity over

Islam. We also conclude that the BIA abused its discretion by

denying Oyeniran’s motion to reopen to consider the significant new evidence of a Nigerian arrest warrant that charges

Oyeniran personally with inciting opposition to Sharia law.

On remand, the BIA should consider all the new evidence,

including Oyeniran’s voluntary trip to visit his sick mother;

however, the BIA’s prior findings of fact constitute a baseline

on which the BIA evaluates Oyeniran’s current CAT application to determine whether it is more likely or not that he will

be tortured if removed to Nigeria. We grant Oyeniran’s petitions and remand for further proceedings consistent with this

opinion.

I. Background

Oyeniran is a native and citizen of Nigeria. According to

the United States Department of State’s Country Reports on

1We appointed pro bono counsel to represent Oyeniran in these consolidated proceedings. We thank Philip Bartz for his able assistance and substantial effort in that regard. 

OYENIRAN v. HOLDER 4637
Human Rights Practices, Nigeria has equal populations of

Christians and Muslims. Deaths and violence attributed to

religious differences are common. Nigeria has a central federal government as well as thirty-six separate States. Since

approximately 2000, twelve States have adopted Islam as the

de facto State religion and now enforce Sharia law. The

Sharia Penal Code is based upon the Koran and includes punishments such as stoning, amputation, and death. 

In 1990, Oyeniran was admitted to the United States as a

lawful permanent resident. In 2005, based upon several criminal convictions, he was found to be removable. Due to his

criminal record, Oyeniran’s only avenue for relief from

removal is deferral under the CAT. 8 C.F.R. § 1208.17. 

“An applicant qualifies for protection under [the] Convention Against Torture if he can show that if removed to his

native country, it is more likely than not that he would be tortured by public officials, or by private individuals with the

government’s consent or acquiescence.” Afridi v. Gonzales,

442 F.3d 1212, 1221 (9th Cir. 2006), overruled on other

grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th

Cir. 2008) (en banc); 8 C.F.R. § 1208.18. “More likely than

not” “means a greater than fifty percent chance of torture.”

Edu v. Holder, 624 F.3d 1137, 1445 n.16 (9th Cir. 2010).

Acquiescence exists when “public officials were aware of the

torture but ‘remained willfully blind to it, or simply stood by

because of their inability or unwillingness to oppose it.’ ”

Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008)

(citation omitted); Afridi, 442 F.3d at 1221; Zheng v. Ashcroft,

332 F.3d 1186, 1194-95 (9th Cir. 2003). 

An alien who has been granted deferral of removal under

the CAT may stay temporarily in the United States. 8 C.F.R.

§ 1208.17(b)(1)(i). The Government can terminate deferral

status based on new evidence or when conditions change. Id.

§ 1208.17(b)(1)(iii), (b)(1)(iv), (d)(1). 

4638 OYENIRAN v. HOLDER
A. Oyeniran Obtained Deferral under the CAT in 2005

In 2005, the Immigration Judge (“IJ”) applied the CAT

standard to the evidence presented and held that Oyeniran was

entitled to deferral. The Government appealed the ruling, but

the BIA affirmed the decision to grant Oyeniran’s CAT application. 

The evidence relevant to the collateral estoppel issue

included testimony by Oyeniran and an expert witness, and

documents including Country Reports, police reports, and

newspaper articles. In brief, the evidence showed that Oyeniran’s father, Abraham Oyeniran, is a Pentecostal Christian

Archbishop and President of the United Global Churches

Association of Nigeria (hereinafter “Archbishop”).2 The

Archbishop is an outspoken and prominent critic of the Nigerian government and of extremist Islamic groups who seek to

implement Sharia law. The Archbishop engaged in highprofile activities to convert Muslims to Christianity. He also

supported the American war in Iraq. 

Oyeniran described in detail two attacks on the Archbishop.

Both occurred while Oyeniran was living in the United States.

Oyeniran relayed the information his father told him, and substantiated the violent events by introducing police reports and

newspaper articles. In the first attack in 2003, Islamic fundamentalists stopped the Archbishop’s car on the way to a “crusade” and beat up the Archbishop’s other son (Gbenga). In

2004, Islamic extremists invaded the Archbishop’s home, beat

up several members of the family, and made threats against

all of the Archbishop’s children. Oyeniran testified that the

police knew the violence was based on religious differences,

but they try to stay neutral and will not interfere or complete

any investigation.

2The Archbishop did not testify or provide any information in the 2005

proceeding except that, during the administrative appeal, the Archbishop

signed an affidavit stating that Oyeniran was his son. 

OYENIRAN v. HOLDER 4639
The expert testimony corroborated Oyeniran’s position on

three points. First, Nigerian culture holds each member of the

family responsible for the controversial conduct of any single

member; thus, the attacks on the Archbishop threatened the

safety of his children, including Oyeniran. Second, the police

acquiesce to violence between religious groups. Moreover,

the authorities often provoke violence by hiring “thugs” to

beat or rob religious activists. Third, Sharia law is pervasive

in Nigeria and imposes harsh punishments that constitute torture.

Based on this record, in 2005, the IJ found and the BIA

affirmed that Oyeniran was credible and that he presented sufficient evidence to show a likelihood that he would be tortured upon his return to Nigeria. 

At every stage of the administrative proceedings, the Government challenged Oyeniran’s claim. The Government

argued Oyeniran had not established that he would be tortured

with the acquiescence of the Nigerian government because his

evidence was speculative and from unreliable sources. It

argued that there was no evidence Oyeniran was in any danger simply because the Archbishop had been attacked by

common criminals. The Government argued the motive for

the attacks was unknown. It contended that the reasons the

police failed to make any arrests were pure conjecture. The IJ

and BIA rejected these arguments about the weight of the evidence and held that Oyeniran had met his burden of proof

under the CAT.

B. Oyeniran Returns to Nigeria to Visit his Mother in

the Hospital

In May 2007, the Archbishop asked Oyeniran to come to

Nigeria to visit his mother who had suffered a severe stroke

and might not survive. In June 2007, Oyeniran traveled to

Nigeria and stayed with his mother in the hospital for a month.3

3The Government improperly issued Oyeniran an emergency visa to

return to Nigeria. The visa should not have been available to an alien who

4640 OYENIRAN v. HOLDER
Several arrangements were made to ensure that no one knew

Oyeniran was in Nigeria. Oyeniran stayed at the hospital his

entire visit. Oyeniran’s mother was protected at the hospital

by the security that the church had hired for the Archbishop.

C. Oyeniran is Denied Deferral under the CAT in 2009

Upon his return to the United States, the Government initiated a second administrative proceeding to remove Oyeniran.4

This time, Oyeniran was denied deferral under the CAT. 

Oyeniran and the expert witness both ratified their prior

testimony. In contrast to the prior proceeding, the Archbishop

testified in person and added his reasons for believing the violent incidents were committed by Sharia fundamentalists who

wanted to harm his children. The Archbishop also testified

that the church had hired security guards to protect him and

his wife. He mentioned recent attempts to harm him. In addition, Oyeniran and the Archbishop described the security precautions taken for the month-long visit to the mother in the

hospital in 2007. New corroborating documents were introduced.

The IJ found that Oyeniran was not credible and held that

Oyeniran had not met his burden of proof, describing the evidence as speculative. Oyeniran appealed. The BIA affirmed

the denial of deferral, even though, ironically, it expressly

found Oyeniran’s testimony credible, reversing the IJ on that

point. It held the 2005 grant of deferral had “no dispositive

was in the United States on a CAT deferral. 

When Oyeniran returned to Los Angeles, the Government’s computer

showed incorrect information about his status. 

4For simplicity, we refer jointly to a “second” hearing because the evidence submitted during the 2008 proceeding (on a motion to terminate

deferral) was incorporated into the 2009 hearing (on a motion to remove

an arriving alien and Oyeniran’s second application for CAT protection).

OYENIRAN v. HOLDER 4641
effect” and that the CAT claim was properly considered “on

a de novo basis.” The BIA rejected Oyeniran’s res judicata

argument holding that the grant of deferral is expressly subject to reconsideration. The BIA held that the violence in

2003 and 2004 did not amount to torture and that those

attacks had not been sufficiently linked to the Nigerian government. 

D. Motion to Reopen to Consider Nigerian Arrest

Warrant

In December 2009, Oyeniran moved to re-open the proceedings to submit new evidence that the Supreme Magistrate’s Court of Nigeria in Lagos issued a warrant of arrest

against him. Dated May 28, 2008, it charged that Oyeniran

had engaged “yourself and others at large in inciting and riotously challenging the spreading and propagation of Sharia

laws and traditions.” 

Oyeniran stated that he did not have the evidence at the

time of the original hearings and could not have discovered

the warrant any earlier. He submitted a sworn affidavit stating

that he had called Nigeria on October 2, 2009 to talk to his

father at the church office. His father’s secretary answered the

phone and told Oyeniran about the warrant. 

In February 2010, the BIA decided that the date of the warrant (May 2008) showed the evidence was available and could

have been presented at the hearings. The BIA held that, in any

event, the evidence would not change the result. 

II. Jurisdiction

We have jurisdiction to review a denial of deferral of

removal under the CAT. Edu, 624 F.3d at 1141-42; Haile v.

Holder, 658 F.3d 1122, 1125 (9th Cir. 2011). We also have

jurisdiction over the denial of a motion to reopen. MedinaMorales v. Ashcroft, 371 F.3d 520, 527-28 (9th Cir. 2004).

4642 OYENIRAN v. HOLDER
III. Standards of Review

“ ‘Where, as here, the BIA conducts a de novo review and

issues its own decision, rather than adopting the IJ’s decision

as its own, we review the BIA’s decision.’ ” HernandezGuadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005)

(citation omitted).

“Whether collateral estoppel is available is a mixed question of law and fact in which the legal issues predominate.

The question of its availability is subject to our de novo

review.” Davis & Cox v. Summa Corp., 751 F.2d 1507, 1519

(9th Cir. 1985), superceded on other grounds by 28 U.S.C.

§ 1961, Pub. L. No. 97-258, § 2(m)(1), 96 Stat. 877, 1062

(1982), as recognized in Northrop Corp. v. Triad Int’l Mktg.,

S.A., 842 F.2d 1154, 1156 (9th Cir. 1988). 

The abuse of discretion standard governs the denial of a

motion to reopen proceedings. Edu, 624 F.3d at 1142 n.4 (citing Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir.

2007)). 

IV. Discussion

A. Collateral Estoppel Applies in Immigration

Proceedings

[1] It is beyond dispute that the doctrine of collateral

estoppel (or issue preclusion) applies to an administrative

agency’s determination of certain issues of law or fact involving the same alien in removal proceedings. Allen v. McCurry,

449 U.S. 90, 94 (1980); Ramon-Sepulveda v. INS, 824 F.2d

749, 750 (9th Cir. 1987) (per curiam) (doctrine applies even

when the agency reopens a removal proceeding for new evidence); Matter of Fedorenko, 19 I. & N. Dec. 57, 57 (BIA

1984) (doctrine conclusively establishes the ultimate facts of

a subsequent deportation proceeding and precludes reconsidOYENIRAN v. HOLDER 4643
eration of issues of law resolved by the prior judgment —

absent a change in the controlling law).

Collateral estoppel applies to a question, issue, or fact when

four conditions are met: (1) the issue at stake was identical in

both proceedings; (2) the issue was actually litigated and

decided in the prior proceedings; (3) there was a full and fair

opportunity to litigate the issue; and (4) the issue was necessary to decide the merits. Montana v. United States, 440 U.S.

147, 153-54 (1979); Clark v. Bear Stearns & Co., Inc., 966

F.2d 1318, 1320 (9th Cir. 1992).

[2] We conclude that the BIA erred by rehashing the historical facts and its findings of law as applied to the 2003 and

2004 incidents of violence that formed the basis of its 2005

decision to grant deferral. We hold that the Government is

conclusively barred from re-litigating the following findings:

the attacks in 2003 and 2004 constituted torture as that term

is defined by the CAT based upon the injuries suffered by the

Archbishop and other family members; the acts of violence

were intended to punish or intimidate the religious and political beliefs of the Archbishop due to his prominent role in criticizing the Nigerian government, opposing Sharia law, and

converting Muslims to Christianity; the attackers were Islamic

extremists; the past attacks threatened Oyeniran’s safety by

virtue of his father’s activities, the family relationship, and the

culture of Nigeria; and the government of Nigeria was either

involved or acquiesced in the prior attacks. 

[3] These issues were “actually litigated” in 2005 and the

findings were “necessarily determined in the prior proceeding” to grant Oyeniran CAT relief in 2005. United States v.

Lasky, 600 F.2d 765, 769 (9th Cir. 1979). 

[4] The Government had a fair opportunity to litigate the

circumstances of the 2003 and 2004 attacks at the first hearing. The Government specifically attacked the evidence in

that very proceeding, for example, by cross examining the

4644 OYENIRAN v. HOLDER
witnesses and challenging the weight of the evidence. All of

the weaknesses mentioned by the BIA in 2009 were evident

when Oyeniran first offered the evidence in 2005. 

The Government argues that the 2009 decision is justified

by the Archbishop’s testimony, as he did not appear in the

2005 proceedings. We disagree. The introduction of new evidence on a matter previously resolved is not an exception to

collateral estoppel. Ramon-Sepulveda, 824 F.2d at 750-51; see

Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1359 (9th Cir.

2007) (“Res judicata bars the government from bringing a

second case based on evidence . . . that it could have presented in the first case.”); 18 Moore’s Fed. Practice

§ 132.02[2][c], [d] (3d ed. 2010) (distinguishing evidence of

“changed circumstances” from evidence that is “historical in

nature”). 

[5] Moreover, the BIA’s flip-flop on past issues is unsupported and arbitrary because the additional evidence introduced during the 2009 hearing was stronger than the evidence

presented in 2005. In 2005, Oyeniran’s testimony about the

violence was hearsay, but in 2009 the Archbishop testified as

a percipient witness to the attacks. The Archbishop corroborated that the attacks had been committed by Islamic extremists who would harm his children. He testified that the

attackers in 2003 wore distinctive Sharia police uniforms. He

introduced another police report confirming that the attackers

in 2004 had come “to eliminate his children.” Additionally,

the violence prompted the Archbishop’s church to hire security protection “against Islamic Terrorists.” In all, the Archbishop’s testimony reinforced and was fundamentally

consistent with the evidence supporting his son’s earlier application for CAT protection. 

We are not persuaded by the Government’s argument that

the 2009 hearing involved a different claim that was not identical to the 2005 claim. Instead, we find a clear identity on the

issue of the nature of the 2003 and 2004 attacks. The ramifiOYENIRAN v. HOLDER 4645
cations of those past events were plainly resolved in Oyeniran’s favor in the prior CAT proceeding. Nor do the new facts

explain the BIA’s complete reversal of its view of past events.

In sum, this case is a textbook example that “repose is justified on the sound and obvious principle of judicial policy that

a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.” Astoria Fed.

Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991). 

B. New Evidence that Arose after the First Decision

Impacts Deferral

[6] The BIA erred when it reasoned that collateral estoppel

did not apply because deferral is “properly considered . . . on

a de novo basis.”

5

 The BIA failed to recognize that collateral

estoppel applies to findings made in the initial determination

and that new evidence and changed circumstances now permit

it to reconsider the substantive question of whether the alien

with deferral status is more likely than not to be tortured in

the future if returned home.

It is obvious that the initial decision to grant deferral under

the CAT does not forever bind the agency to the ultimate conclusion. The very nature of deferral permits reevaluation of

whether it is more likely than not that an alien will be tortured

in the future based on new facts. Al Mutarreb v. Holder, 561

F.3d 1023, 1031 (9th Cir. 2009) (in a new proceeding, the

Government can present “facts that have arisen or come to

light after” the original proceeding took place); Belayneh v.

INS, 213 F.3d 488, 491-92 (9th Cir. 2000) (conditions in a

country can change over time). 

5The BIA did not cite any authority for this proposition; however, there

is similar language in the regulation governing termination of CAT deferral of removal. 8 C.F.R. § 1208.17(d)(3). Oyeniran’s case was in a different, though analogous, procedural posture. See supra note 4. 

4646 OYENIRAN v. HOLDER
On remand, the BIA may consider events that occurred

after the 2005 hearing. The BIA must evaluate any new evidence in light of the prior findings on past events to decide

Oyeniran’s current application for deferral from removal. The

new evidence includes, but is not limited to, evidence such as

the circumstances surrounding Oyeniran’s clandestine trip to

Nigeria in 2007 and, as discussed below, the 2008 Sharia

arrest warrant. See Boer-Sedano v. Gonzales, 418 F.3d 1082,

1091-92 (9th Cir. 2005) (an applicant’s return trip to his country is relevant to his fear of future persecution, but standing

alone it is not fatal to an asylum claim). At the same time, the

BIA’s prior decision conclusively resolved certain past events

and those historical events cannot be re-litigated. The BIA

must respect the principle of repose. 

[7] Nonetheless, we decline Oyeniran’s invitation to reach

the merits of whether substantial evidence supports the decision to deny his application for deferral. The BIA should have

an opportunity to conduct a proper analysis of the entire

record of relevant evidence. 

C. Motion to Re-Open

[8] “[A] motion to reopen alleges new facts that bear upon

the agency’s earlier decision.” Ghahremani, 498 F.3d at 997

n.1. The BIA’s regulations state that “[a] motion to reopen

proceedings shall not be granted unless it appears to the Board

that evidence sought to be offered is material and was not

available and could not have been discovered or presented at

the former hearing.” 8 C.F.R. § 1003.2(c)(1).

[9] We conclude the BIA abused its discretion by rejecting

the new evidence. Arrozal v. INS, 159 F.3d 429, 432-33 (9th

Cir. 1998). Oyeniran offered a legitimate and plausible explanation that he first learned about the warrant when he called

his father in late 2009 and the secretary told him about it. See

Malty v. Ashcroft, 381 F.3d 942, 947 (9th Cir. 2004); Ordonez

v. INS, 345 F.3d 777, 786-87 (9th Cir. 2003). It is not suffiOYENIRAN v. HOLDER 4647
cient that the evidence physically existed in the world at large;

rather, the evidence must have been reasonably available to

the petitioner. See Afriyie v. Holder, 613 F.3d 924, 937 (9th

Cir. 2010); Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir.

2003) (reversing denial of motion to reopen when “evidence

was not as a practical matter discoverable”). Oyeniran was in

custody from 2007 to 2010 in an immigration detention facility in Texas. Oyeniran’s confinement supports his assertion

that he could not have discovered that a judge in Nigeria

issued an arrest warrant until he called his father’s office in

October 2009 and happened to speak to the secretary who

knew about it. The slight delay between Oyeniran’s discovery

of the warrant in October and its submission to the BIA in

December is reasonably explained by the time needed to get

a copy of the warrant from Nigeria to Texas. Sidhu v. INS,

220 F.3d 1085, 1091-92 (9th Cir. 2000) (recognizing difficulty of obtaining evidence from foreign countries). 

[10] Moreover, the new evidence is significant, dramatic,

and compelling. The warrant shows that the Nigerian government is actively pursuing Oyeniran for “inciting and riotously

challenging the spreading and propagation of Sharia laws and

traditions.” This political and religious charge is the basis of

Oyeniran’s request for CAT relief. The charge is directed

against Oyeniran personally. Najmabadi v. Holder, 597 F.3d

983, 987 (9th Cir. 2010) (evidence showing persecution was

directed “specifically” at petitioner is “qualitatively different”

than generalized information on country conditions). 

The warrant is also troubling because it was issued at a

time when Oyeniran was in custody in the United States.

Though the warrant charges conduct “in” Lagos State and

claims that the “defendant was duly served with the summons,” aside from his trip to his mother’s hospital bed in

2007, Oyeniran had not been in Nigeria since 1997 and denies

having been served. The new evidence thus supports the

expert’s testimony that opponents will impute the religious

activities of the Archbishop to his children and that visible

4648 OYENIRAN v. HOLDER
and vocal opposition to Sharia law is prosecuted and punished

by entities of the Nigerian government. 

[11] On remand, the BIA should consider the new evidence of the arrest warrant along with all of the other new evidence presented to decide Oyeniran’s application for deferral.

Conclusion

We conclude that collateral estoppel binds the BIA to its

prior determination that the attackers in 2003 and 2004 were

Islamic extremists seeking to punish the Archbishop for his

outspoken criticism of Islam and his efforts to convert Muslims to Christianity; that the violence satisfied the definition

of torture under the CAT; that the prior attacks constitute a

threat to Oyeniran by virtue of his family relationship to the

Archbishop; and that the Nigerian government turned a blind

eye to the prior violent incidents against the Archbishop’s

family. We also conclude that the BIA erred by denying the

motion to reopen to introduce the Nigerian warrant that

charges Oyeniran with violating Sharia law. On remand, the

BIA shall reconsider the merits of Oyeniran’s application for

deferral in a manner consistent with this opinion.

PETITIONS FOR REVIEW GRANTED; REVERSED

AND REMANDED.

OYENIRAN v. HOLDER 4649