Eighth Circuit Rejects Asylum Claim Based on Part On Applicant's Fear of Being Perceived to be a Witch

 

Introduction

On June 26, 2017, the United States Court of Appeals for the Eighth Circuit released an interesting opinion in an asylum case titled Edionseri v. Sessions, — F.3d —— (8th Cir. 2017) [PDF version]. Writing for a three-judge panel, Judge Morris Arnold rejected the petition for review of an individual who had been denied asylum, withholding of removal, and relief under the convention against torture based on the claim that he feared being persecuted as a suspected witch in his native Nigeria. In this article, we will examine the facts and procedural history and the Eighth Circuit's reasoning and decision.

Withholding of Removal

Leading Up to Proceedings

The petitioner, Richard Edionseri, a native and citizen of Nigeria, was admitted into the United States in 2006 as a student on the condition that he attended college. In 2010, after dropping out of college, Edionseri petitioned for asylum, withholding of removal, and relief under the convention against torture. While his petition for relief was pending, the Department of Homeland Security (DHS) charged him as removable under section 237(a)(1)(C)(i) of the Immigration and Nationality Act (INA) for violating his nonimmigrant student status by no longer being a student.

Edionseri's Claim

The Court summarized Edionseri's testimony.

Edionseri testified that he was born in Nigeria in 1973, but that he and his family subsequently moved to India. He stated that he saw a wizard murder his father when he was 16 in order to make Edionseri a false prophet. He and his mother moved back to Nigeria.

In Nigeria, Edionseri's mother bought a rental property. Edionseri testified that some of the tenants became operatives for the devil. Multiple tenants accused Edionseri of being a wizard and his mother of practicing witchcraft. Edionseri stated that he began having visions and prophesying, but that he was accused of being a false prophet when the visions did not come true.

In 2001, Edinoseri's family had a dispute with an unruly tenant named Akpoma. His mother called the police on the suspicion that Akpoma had left stolen cars at the rental property. When officers arrived, Akpoma blocked them from entering the property and beat Edionseri and his mother with a tire iron. Shortly thereafter, another tenant assaulted Ediosneri, his mother, and his sister in the presence of police. The family managed to evict the tenants one or two years later.

Ediosneri further testified that the devil had placed demons inside of him, causing various adverse effects. Most problematic, Edionseri claimed, was that the demons caused him to have an “offensive odor.” This odor led to Edionseri being marked as “demonic” and causing him to be ostracized by the community. Despite undergoing four exorcisms and seeking help from medical and other religious personnel, the odor remained.

Edionseri asserted a fear of persecution and torture were he to return to Nigeria on the basis that people would associate his smell with demonic forces. He stated that many people believe in wizardry in Nigeria, although the belief is not accepted. He submitted evidence suggesting that people have been tortured in other parts of Nigeria on the suspicion of being a wizard or witch.

Immigration Proceedings

In immigration proceedings, the Immigration Judge found that Edionseri was credible in his beliefs. Furthermore, the Immigration Judge excused Edionseri's failure to file for asylum within one year of arrival. However, the Immigration Judge concluded that Edionseri had not suffered past persecution in Nigeria because the harms he related were not inflicted by the government or by private actors that the government was unwilling or unable to control. The Immigration Judge concluded that, although Edionseri had a subjective fear of persecution, his fear was not objectively reasonable. For this reason, the Immigration Judge rejected Ediosneri's applications for asylum, withholding of removal, and protection under the Convention Against Torture.

The Board of Immigration Appeals (BIA) upheld the Immigration Judge's decision.

Seventh Circuit Analysis and Decision

In Garcia-Colindres v. Holder, 700 F.3d 1153, 1156, 1158 (8th Cir. 2012) [PDF version], the Eighth Circuit held that an alien seeking asylum must demonstrate either past persecution or a well-founded fear of future persecution on one of the protected grounds found in section 101(a)(42) of the INA, and that a fear of future persecution must be both subjectively genuine and objectively reasonable. Furthermore, in Saldana v. Lynch, 820 F.3d 970, 975-76 (8th Cir. 2016) [PDF version], the past or future persecution must have been committed either by the government itself or by non-government individuals or groups that the government was either unwilling or unable to control.

Judge Arnold agreed with both the Immigration Judge and the BIA that the past harms suffered by Edionseri did not amount to persecution. The reason for this determination was that the harms were not afflicted by the Nigerian government or by parties that the government was unwilling or unable to control.

Edionseri argued that much of the harm was inflicted by supernatural forces. Judge Arnold noted that, were that to be the case, it would be true that the Nigerian government would be unable to control supernatural forces. However, he explained that both the Immigration Judge and the BIA concluded that the definition of “persecution” in the INA does not include harm from supernatural forces or beings. Judge Arnold found that the Immigration Judge's and BIA's finding was reasonable and entitled to deference. He noted that Edionseri did not offer a plausible way for the Nigerian government to intervene against supernatural forces ,. Judge Arnold stated that “[i]t is hardly unreasonable to hold that Congress would not require governments to do things that are quite evidently impossible.”

Judge Arnold also found that there was substantial evidence weighing against Edionseri's assertion “that the Nigerian government was unable or unwilling to control the devil's human agents.” For example, Judge Arnold noted that at least five police officers responded to the incident involving Akpoma. Furthermore, although no arrests were made, the evidence suggested that the police conducted an investigation and that the government neither condoned the conduct nor was unable to protect the victims. Judge Arnold found that the evidence regarding the second incident was insufficient for concluding that the police were unable or unwilling to intervene in the assault of Edionseri and his family.

Judge Arnold also agreed that substantial evidence supported the conclusion of the Immigration Judge and the BIA that Edionseri had no objectively reasonable fear of persecution by the government or by individuals or groups that the government was unable or unwilling to control. Regarding Edionseri's claims about the persecution of individuals perceived to be wizards or witches, Judge Arnold noted that Edionseri's mother lived at the same home in Lagos where the alleged persecution occurred, and that nothing had happened to her since. Furthermore, the tenants who allegedly caused problems for Edionseri and his family had long since been evicted.

Judge Arnold also noted that since Edionseri left Nigeria the government has made progress “in curbing wizard torture.” He found that this demonstrated both that Edionseri was less likely to be persecuted in the future than he had been in the past, and that the Nigerian government was not unwilling or unable to protect him against such harm.

Finally, Judge Arnold agreed with the BIA's decision to reject Edionseri's claim for withholding of removal on the same basis that it rejected the asylum claim. Regarding the application for protection under the Convention Against Torture, the Eighth Circuit agreed that Edionseri was ineligible based on evidence in the record “showing the Nigerian government's efforts to curtail the torture of suspected witches and wizards…”

For the foregoing reasons, the Eighth Circuit denied Edionseri's petition for review.

Conclusion

One interesting point in Edionseri is that the Court granted the motion of Edionseri's original attorney to withdraw from the case on March 15, 2017. From that point forward, Edionseri represented himself, and the case was ultimately decided without oral argument. Unfortunately, the full documents are not currently available from the Eighth Circuit website.

When seeking relief from removal, especially in an asylum application, it is crucial to consult with and work closely with an experienced immigration attorney throughout the entire process. Establishing eligibility for asylum or withholding of removal is a complex process even in cases that may be based on more compelling claims than those made in the instant case.

Please see our categories and articles on asylum [see category], withholding of removal [see article], and protection under the Convention Against Torture [see article] to learn more.