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AYINDE v. ASHCROFT

September 10, 2003

BABATUNDE AYINDE, PETITIONER,
v.
JOHN ASHCROFT, RESPONDENT



The opinion of the court was delivered by: Gabriel Gorenstein, Magistrate Judge

OPINION AND ORDER

Babatunde Ayinde brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2241, challenging the Board of Immigration Appeals' ("BIA") denial of his application for asylum and withholding of removal. The parties have consented to the disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the petition is denied.

I. BACKGROUND

A. Factual History

On or about January 28, 1993, Ayinde, a native and citizen of Nigeria, entered the United States without inspection via the Canadian border. R. 95, 204, 248.*fn1 Thereafter, on February 24, 1997, the Immigration and Naturalization Service ("INS") served Ayinde with an Order to Show Cause and Notice of Hearing, which charged that he was subject to deportation pursuant to section 241(a)(1)(B) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1251(a)(1)(B). See R. 248-52. Page 2

On April 30, 1993, Ayinde applied for asylum under section 208 of the INA, alleging that he had been persecuted in Nigeria because of his political views and because he was a member of the "Committee for Defence of Human Rights and the Campaign for Democracy" (the "Committee"). R. 204-08; see also R. 148-49. Ayinde indicated in his application that

[t]he purpose of the Committee is to clamour for and defend human rights and to put pressure on the government to return Nigeria to civil rule as earlier scheduled; also to seek the release of all political prisoners who have been incarcerated without trial.
R. 206. He stated that he functioned as one of the Committee's "organizing agents" and that he distributed political pamphlets and recruited others for various political rallies. R. 206; see also R. 148-49. In an affidavit submitted along with his application for asylum, Ayinde claimed that he had been arrested "for no just cause" in November 1992 and January 1993 and was tortured by the police, although he was eventually released without having been formally charged. R. 148. He also attached to his application several articles about conditions in Nigeria and various human rights reports, see R. 131-34, 140-42, 150-200, 215-34, as well as a letter from his cousin in which it was reported that food and essential commodities were arbitrarily "hiked beyond the reach of common man" and that killing and arson were common in certain areas of the country. R. 130. In addition, his cousin reported that transportation throughout Nigeria was costly because the country lacked sufficient petroleum and concluded by discouraging Ayinde from returning because his political and financial safety could not be guaranteed. R. 130. Page 3

B. Administrative Proceedings and Procedural History in This Court

On July 25, 1997, deportation proceedings were held before an Immigration Judge ("IJ") in New York City. R. 71-76. Ayinde was represented by counsel, admitted to the allegations in the order to show cause and conceded to "deportability as charged." R. 74.

In the hearing on his application for asylum, held on September 15, 1999, Ayinde testified as the sole witness. See R. 77-112. He testified that the overall goal of the Committee was to return Nigeria to civil rule and defend human rights. R. 85-86. He testified further that he had been arrested by Nigerian authorities on November 25, 1992 because of his involvement with the Committee and taken to police headquarters, where he was handcuffed, hit about the face and mouth and beaten with a stick. R. 89-90. Ayinde testified he lost two teeth and experienced some lost vision as a result of this beating. R. 90. The transcript reflects that Ayinde showed the IJ several discolorations on his chest that were from this assault. R. 90. He was released after three days. R. 89-90. Ayinde testified that he was arrested a second time on January 1, 1993 and was asked numerous questions about the Committee and its members. R. 90-93. He did not describe the conditions of his confinement or the treatment he received on this occasion, except to say that he was in custody for seven days. See R. 90-93. The charges on both occasions were eventually dismissed for lack of evidence. See R. 89-93; see also R. 148. After his release on the second charge, Ayinde was interrogated again and told to report to the authorities every day because he was a "troublemaker for the government." R. 93-94.

Fearing additional brutality and concerned that his life was in danger, Ayinde left Nigeria for Canada on January 19, 1993 and later came to the United States. R. 94-95. He left his wife and children behind in Nigeria. See R. 96, 99. Ayinde testified, however, that the Nigerian Page 4 authorities have never arrested or attempted to harm his wife, children or other members of his family. R. 96. Ayinde told the IJ that his wife in Nigeria eventually divorced him because he could not return to the country and that he has since married a Nigerian woman in America, with whom he has two children. R. 99, 102-03.

When asked why he has not returned to Nigeria even though the climate had since changed, Ayinde stated: "I don't think I return to that country simply because the way the government by their treat people, so ridiculous." R. 96. Further, he suggested that the Nigerian police are still looking for him. See R. 96-97. Ayinde testified, however, that when his passport expired while he was in the United States, he went to the Nigerian consulate in New York City to have his passport renewed. R. 98-101. He was issued a new passport by the Nigerian government in March 1999. R. 98; see also R. 211-14. The IJ asked Ayinde why he went to the consulate if he was afraid of the Nigerian government, to which Ayinde replied that "you never know when the country might be changed. . . . It's going to be a problem for me to go with expired passport." R. 100-01.

After this testimony the IJ issued an oral decision, ordering Ayinde deported and denying his application for asylum. See R. 58-69. The IJ began by observing that — while Ayinde only sought asylum under section 208 of the INA — he would consider Ayinde's application as a request for withholding of removal under section 241(b)(3) of the INA and for relief under Article III of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention"), Dec. 10, 1984, 1465 U.N.T.S. 85, 23 I.L.M. 1027 (1984). R. 59. Page 5

The IJ found that Ayinde's testimony concerning his alleged arrests in Nigeria was "vague" and "weak" and that he had "not established sufficient evidence with regard to the relief that he seeks." R. 64-65. In particular, the IJ noted that Ayinde had provided "no proof or corroborative materials regarding his membership or his affiliation or his association with the political organization that he claims to be a member of." R. 65-66. Nor was there any "proof or supporting documentation or corroborative material with regard to the activities that he had engaged in Nigeria prior to his departure." R. 66. The IJ emphasized that ...


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