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Awolesi v. Ashcroft

August 15, 2003

JOSEPH AWOLESI AND EBENEZER AWOLESI, PETITIONERS
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



On Petition for Review of an Order of the Board of Immigration Appeals (INS Nos. A73-034-576, A73-034-577)

Before: Becker, Chief Judge,*fn1 Nygaard and Ambro, Circuit Judges.

The opinion of the court was delivered by: Becker, Circuit Judge.

PRECEDENTIAL

Argued January 21, 2003

OPINION OF THE COURT

This is a petition for review of an extremely terse (four sentence) order by the Board of Immigration Appeals ("BIA"), reversing the decision of the Immigration Judge ("IJ") granting the applications for asylum of petitioners, Joseph Awolesi ("Awolesi"), and his son Ebenezer (whose claim is derivative of Joseph's). Awolesi testified before the IJ that his brother, Matthew Awolesi ("Matthew"), a member of the pro-democracy party in Nigeria and an elected member of the local community council, was the target of ambush and assassination attempts by the security forces of the ruling party in Nigeria and is now in hiding. Awolesi, who used the proceeds from his successful pharmaceutical company in Nigeria to fund Matthew's political career, argues that if returned to Nigeria, he would be persecuted by the government, which believes that he is a member of the pro-democracy party (based on Matthew's association with the party). On the basis of the evidence supporting these claims, the IJ concluded that Awolesi and Ebenezer had shown a well-founded fear of persecution on account of imputed political opinion.

While we give deference to the decisions of the BIA, and must affirm its findings unless the evidence "compels" a contrary conclusion, we cannot give meaningful review to a decision in which the BIA does not explain how it came to its conclusion. This is not a case in which the BIA affirmed the decision of the IJ without explanation, in which case we might scour the record for supporting evidence. Here, instead, the BIA reversed the decision of the IJ, with only the opaque explanation that "the evidence is insufficient" and "the arguments made by the [INS] on appeal... are persua[sive]." As a result, we cannot tell whether the BIA was making a legal decision that Awolesi was statutorily ineligible for asylum or whether it found Awolesi's story incredible. In these circumstances, we conclude that we cannot perform meaningful review of the BIA's order, hence we will vacate the order of deportation and remand for further consideration.*fn2

I.

Awolesi and Ebenezer are citizens and natives of Nigeria.*fn3

They arrived in the United States in February of 1993 carrying valid "visitor for pleasure" visas which authorized them to remain until August of 1993. In October of 1993, Awolesi applied for asylum and withholding of deportation. In the original application, Awolesi claimed that he was subject to persecution by the Muslim fundamentalist police on account of his Christian religion. Awolesi's application for asylum was denied by the INS and he and Ebenezer were issued orders to show cause charging them as deportable for having overstayed their visitor visas.

Awolesi appeared before the IJ and claimed that he would be persecuted if returned to Nigeria because the government believed that he was a member of the prodemocracy party. Awolesi asserted that he was the owner of a successful pharmaceutical company in Nigeria and that the business had made approximately $90,000 a year from 1988 to 1991 and approximately $60,000 a year after that. Awolesi claimed that he used some of the proceeds from that business to support his brother Matthew's political career. Awolesi claims that Matthew had paid to send Awolesi to college to get a bachelor's degree and Awolesi wanted to return the favor. Awolesi represented that Matthew worked for the Nigerian government until 1984, when he was fired from his position for making outspoken political statements about the military regime that ran the country. Awolesi contends that Matthew was a member of the Social Democratic Party, a pro-democracy party in Nigeria, and, with Awolesi's financial backing, was elected to the position of "chair person" of one of the local community councils, governing an area with a population of approximately 200,000 people. Awolesi stated that he also joined the Social Democratic Party, but that he was not as politically active as his brother.

Awolesi claims that his brother, because of his political activity, became a target of the ruling party of Nigeria. He maintains that Matthew was ambushed in his home in 1991. Later, in 1992, Awolesi asserts, shots were fired at Matthew's official car and one of his aides was seriously injured.*fn4 Awolesi contends that Matthew subsequently went into hiding for fear of persecution by the Nigerian government. Awolesi also represents that he was threatened by members of the military and that he was told by a "friendly government agent" that the military regime had discussed killing him.

Awolesi states that he fled the country in 1993 because he was worried about the outcome of the upcoming elections: he feared that the government would lash out against individuals that were believed to support the prodemocracy party.*fn5 Awolesi took his then teenage son Ebenezer with him, but left behind his wife and other children (none of whom have been harmed in his absence). Awolesi believes that he may be on a government "black list" and would be arrested and tortured or killed if he is returned to Nigeria.

The IJ conducted a full hearing on the merits, at the end of which he granted asylum to Awolesi and his son based on a showing of a well-founded fear of persecution on account of imputed political opinion.*fn6 In ...


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