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United States District Court, Southern District of New York

September 10, 2003


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


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.


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 Ayinde had been in the United States for several years and that this provided him ample time to "secure corroborative and background material for his claim." R. 66.

The IJ noted that the only document Ayinde provided that was at all specific to his claim was the letter from his cousin. R. 65. However, the IJ observed that the letter did not reference Ayinde's alleged political activities or his arrests and mistreatment but rather "merely indicates that given the civil strife in his country and the diminishing infra-structure that exists there, that it would not be wise for [Ayinde] to return. The letter, at best, indicates that there is civil strife in the respondent's home country and fails to be supportive or corroborative of the respondent's persecution events." R. 65.

In addition, the IJ found that Ayinde's general claims of past persecution and fear of future persecution were separately undermined by his admission that he renewed his passport from the Nigerian government — "the very persecutors that the respondent is afraid of" — in March 1999:

The respondent's explanation [for why he renewed his passport in 1999] is not coherent nor plausible. The respondent testified that he is afraid to return since the government would be seeking his whereabouts. The respondent, nevertheless, Page 6 indicated that he had returned to the Nigerian consulate here in New York, with his photo, with his signature and his fingerprint and obtained a renewal of his passport. Certainly, there is no evidence of a well-founded fear of future persecution by the respondent. His explanation that he was attempting to facilitate his travel back to Nigeria in the future is not convincing or not coherent.
R. 66-67. The IJ also noted that there has been a "substantial change" in Nigeria since Ayinde's departure and yet Ayinde failed to demonstrate that the government has any remaining interest in him. R. 67.

As Ayinde failed to demonstrate his eligibility for asylum, the IJ observed that Ayinde also failed to meet the "higher standard of proof necessary for withholding of removal." R. 68. With respect to Ayinde's potential claim for relief under the Torture Convention, the IJ concluded the "brief detention" and treatment that Ayinde received did not constitute "torture" under the Torture Convention and, further, that Ayinde had failed to demonstrate that there was a likelihood of his being subjected to torture upon his return. R. 67-68. The IJ granted Ayinde voluntary departure up to and including October 15, 1999. R. 68.

On September 21, 1999, Ayinde — proceeding through counsel — appealed the IJ's ruling to the BIA. See R. 29-42. He argued that the IJ erred in concluding that his testimony was general and vague and failed to substantiate his political affiliation and claimed membership in the Committee. R. 29. He argued that his testimony had been "credible and specific," see R. 29, and was corroborated by the injuries he showed to the IJ during the proceeding. R. 36. Further, Ayinde claimed the IJ breached his duty to inform Ayinde that he was considering the application as being brought under the Torture Convention. R. 36. Ayinde also argued that the IJ erred in not giving sufficient weight to the letter from his cousin, which Ayinde maintained "show[ed] that because of his prior political opinions [he] was not in a position to return to his native Page 7 country." R. 29. And lastly, he claimed the IJ committed judicial error by "making an adverse inference" from the fact that Ayinde renewed his passport with the Nigerian consulate as he "did not testify that his purpose in obtaining a valid passport was to immediately return to Nigeria" but rather he wanted to have "it with him . . . in case the country conditions improved to his benefit." R. 29; accord R. 36.

The BIA summarily affirmed the IJ's decision on June 20, 2002, and dismissed Ayinde's appeal. R. 27-28. Thereafter, on July 3, 2002, Ayinde moved through counsel for the BIA to reconsider its prior ruling. R. 21-26. He argued that the BIA did not adequately consider his injuries and that his case should be remanded to enable him to make a "formal application" under the Torture Convention. R. 25. This motion was denied on September 6, 2002. R. 18-19. The BIA explained that Ayinde "merely reiterates the arguments that were made on appeal" and found that the IJ had adequately considered Ayinde's claims under the Torture Convention. See R. 19.

On October 2, 2002, Ayinde filed a pro se motion before the BIA entitled "Motion to Reopen and Reconsider for Hardship to Children." R. 3-17. He argued that renewing his passport with the Nigerian consulate should not have been deemed an "abandonment of [his] asylum claim." R. 5. In addition, Ayinde argued that the IJ who decided his application was "known as a prosecutorial judge who has a limited capacity to . . . grant relief to aliens" and ignored that his family is "bound to suffer hardship." R. 5-6. Along with the motion, Ayinde submitted a statement entitled "Everybody Loses" — in which he described the circumstances under which he left Nigeria and the beating he received at the hands of the Nigerian police — and letters from various doctors describing the condition of his eyes and teeth. See R. 7-11. Ayinde Page 8 also submitted his marriage license and the birth certificates of his children born in the United States. R. 12-15.

The BIA denied Ayinde's motion to reopen on December 4, 2002. R. 1-2. The BIA first rejected the motion because it was not filed within 90 days of the BIA's final order, dated June 20, 2002, and thus was not timely filed. R. 2 (citing 8 C.F.R. § 3.2(c)(2), which requires that motions to reopen be filed no later than 90 days after final decision). The BIA went on, however, to construe the motion as if it fell within the exception for untimely asylum motions to reopen based on "changed circumstances," see 8 C.F.R. § 3.2(c)(3)(ii), but concluded that Ayinde had not established "changed circumstances" in Nigeria. R. 2.

Ayinde thereafter filed in this Court the instant "Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 Under Beharry v. Ashcroft," filed January 16, 2003 ("Petition"), in which he claims the BIA failed to adequately consider certain claims. See generally Petition at 1. The Government has opposed the petition. See Respondent's Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus, dated June 16, 2003 ("Resp. Mem."); Return.


In the instant petition, Ayinde has apparently abandoned the claims made before the IJ and the BIA concerning his affiliation with the Committee, his past experiences with the Nigerian police, his request to make a formal application under the Torture Convention and his argument that the IJ erroneously considered his passport renewal in 1999 as an abandonment of his asylum claim. Rather, the petition discusses two entirely new claims: (1) that his United States-born daughter will face female genital mutilation ("FGM") and (2) that he will be subject to possible confinement or supervision for up to five years under "Decree No. 33" if he is forced Page 9 to return to Nigeria. See generally Petition at 1. To the extent Ayinde argues the BIA erred in deciding his motions to reopen and to reconsider, he appears to do so only by arguing that the BIA failed to adequately consider the hardship "to [his] U.S. born female child — following FGM" and that it rendered decision "without asking for updating from the U.S. Department of State, Office of Human Rights for the country conditions in reference to [FGM]." See id. The Government argues that these claims are unexhausted and that this lack of exhaustion deprives the Court of subject matter jurisdiction; that the Court is without authority to review challenges to the BIA's discretionary decisions denying Ayinde's appeals; and that, in any event, the BIA acted within its discretion. See Resp. Mem. at 8-14.

"Under the doctrine of exhaustion of administrative remedies, `a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself.'" Howell v. INS, 72 F.3d 288, 291 (2d Cir. 1995) (quoting Guitard v. United States Secretary of Navy, 967 F.2d 737, 740 (2d Cir. 1992)); accord Theodoropoulos v. INS, 313 F.3d 732, 736 (2d Cir. 2002). The exhaustion requirement serves numerous purposes, "including protecting the authority of administrative agencies, limiting interference in agency affairs, and promoting judicial efficiency by resolving potential issues and developing the factual record." Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003) (citing McCarthy v. Madigan, 503 U.S. 140, 145 (1992); McKart v. United States, 395 U.S. 185, 193-95 (1969)).

An alien seeking to avoid removal must exhaust all remedies available and present his claims administratively prior to seeking federal habeas relief. See Beharry, 329 F.3d at 56; accord Flores-Cordova v. Ashcroft, — F. Supp.2d —, 2003 WL 21999007, at *2 (D. Conn. Aug. Page 10 5, 2003) ("It goes without saying that [a] petitioner may not raise a novel issue in a habeas petition without an exceptional justification for so doing."). In Beharry, the Second Circuit held that an alien's failure to exhaust a claim administratively deprived the Court of subject matter jurisdiction. See 329 F.3d at 53 ("We hold that because petitioner failed to exhaust his administrative remedies, neither the district court nor this Court has subject matter jurisdiction to consider his claim. . . ."); accord id. at 63-64. In a footnote somewhat at odds with this pronouncement, however, Beharry indicated that the exhaustion requirement "may or may not be jurisdictional." Id. at 53 n. 1 (citing Sims v. Apfel, 530 U.S. 103, 106 n. 1 (2000)). The Court distinguished between "statutory" and "judicial" exhaustion, noting that "statutory exhaustion requirements are mandatory, while the judicial (common-law) exhaustion doctrine is discretionary and includes a number of exceptions." Id. at 56-57 (citing McCarthy, 503 U.S. at 144). The Court did not decide whether exhaustion in the immigration context was statutorily or judicially required because the petitioner failed to satisfy the "less stringent" of the two — that is, the judicial exhaustion requirement. See id. at 59-63.

Ayinde's petition is denied for he too fails to satisfy "the less stringent judicial exhaustion requirement." See id. at 62 (citations omitted). Ayinde claims the BIA declined to "review [FGM] in [his motion to reopen] filed October 2, 2002," Petition at 1, and appears to suggest the BIA failed to consider that he may be "affected by the Decree No. 33 (1990) provoking a possible confinement or supervision for a period of years, 5 years top." See id. However, these arguments were presented neither to the IJ during the hearing on his asylum claim — or in any of his submissions in connection with that hearing — nor to the BIA during his appeal or his two motions for reconsideration. Indeed, there is no mention at all of Decree No. 33 in the record. Page 11

The only reference to FGM occurred not before the IJ or in a claim made to the BIA but in a document entitled "Application for Stay of Deportation or Removal," dated November 6, 2002 ("App. for Stay"). This document does not appear in the administrative record but rather in the attachments to the instant petition. In the application, Ayinde stated that his "U.S. born female child, Zainab Ayinde, . . . may be subjected to [FGM] as practised in the yoruba religion upon coming to Nigeria with me." Assuming this document was even presented to the BIA, it was not part of any request for substantive relief but rather was listed as a "reason for requesting stay of deportation or removal." Id. Because the claim was not presented to the BIA as part of Ayinde's appeal or motions for reconsideration, it is unexhausted. See generally Beharry, 329 F.3d at 51; see also Hinds v. Ashcroft, 2003 WL 21459547 (D. Conn. June 19, 2003) (petition under section 2241 dismissed for failure to exhaust where alien raised new claims not presented to the IJ or the BIA).

Where the judicial exhaustion requirement applies, certain exceptions may allow a court to excuse a party's failure to exhaust administrative remedies. Specifically, exhaustion may not be required when "`(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question.'" Beharry, 329 F.3d at 62 (quoting Able v. United States, 88 F.3d 1280, 1288 (2d Cir. 1996) (quoting Howell, 72 F.3d at 291)).

The first and third exceptions are inapplicable for there is no suggestion the BIA would not have considered the claims had they been presented properly. See Hinds, 2003 WL 21459547, at *2 (futility exception not applicable because "the INS would undoubtedly have Page 12 [considered the claim raised in the petition had the petitioner] raised this claim during the administrative proceedings"). Notably, the two cases on which Ayinde relies, see In re M-B-A, 23 I & N Dec. 474 (B.I.A. 2002); In re Kasinga, 21 I & N Dec. 357 (B.I.A. 1996), were cases in which the BIA considered in detail claims that involved Decree No. 33 and FGM, respectively. That Ayinde's claims may have proved unsuccessful is not tantamount to stating that appeal would have been futile, see Beharry, 329 F.3d at 62, or that the remedies available did not provide "genuine" opportunity for relief. With respect to the fourth exception, Ayinde has made no attempt to raise a "substantial constitutional question" that would excuse his failure to exhaust and the Court has not been able to discern one from the record.

The second exception — whether irreparable injury may occur without immediate judicial relief — is not elucidated in Beharry. The ultimate source of the exception appears to be the Supreme Court's decision in Renegotiation Bd. v. Bannercraft Clothing Co., Inc., 415 U.S. 1 (1974), which involved a litigant who was party to an proceeding ongoing before a federal agency and who requested from the agency certain documents relating to its case. When the agency did not provide the documents, the litigant obtained from a federal district court a preliminary injunction requiring the agency to provide it with the documents. The Supreme Court reversed the grant of the injunction, holding that the litigant was required to pursue its quest for the documents only through the agency proceedings. In the course of that decision, the Court commented on the fact that the litigant could pursue whatever remedies were available following the conclusion of the agency proceedings and that the requirement that the litigant pursue such remedies could not constitute irreparable injury. The Court concluded that "[w]ithout a clear showing of irreparable injury . . . failure to exhaust administrative remedies Page 13 serves as a bar to judicial intervention in the agency process." Id. at 23 (citing Sears, Roebuck & Co. v. NLRB, 473 F.2d 91 (D.C. Cir. 1972) and Virginia Petroleum Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921 (D.C. Cir. 1958)).

Thus, the "irreparable injury exception" in Renegotation Board arose where a litigant had actually presented its claim to the agency but was instead seeking to avoid awaiting the outcome of the ongoing administrative proceeding. The two cases cited by Renegotation Board in support of the exception involved identical circumstances: parties that had sought to enjoin or otherwise interfere with ongoing agency proceedings at which the parties had previously presented their claims. See Sears, Roebuck & Co., 473 F.2d at 92-93; Virginia Petroleum Jobbers Ass'n, 259 F.2d at 923-24. While none of these cases actually found irreparable harm, the exception is plainly one that applies not to excuse the failure to present a claim at all but rather to relieve a party from awaiting the outcome of the agency proceedings.

These circumstances do not apply here, of course. Ayinde never presented his claims to the IJ or to the BIA, the agency made no ruling on these claims (let alone an adverse ruling), and the agency proceedings long ago concluded. For these reasons, Ayinde does not come within the irreparable injury exception to the exhaustion requirement. See also Hinds, 2003 WL 21459547, at *2 (finding "irreparable injury" exception had not been met because, inter alia, the petitioner "did not seek immediate judicial intervention during the pendency of the INS proceedings").

In sum, because Ayinde failed to exhaust the claims raised in his habeas petition, this Court may not consider them.*fn2 Page 14


For the foregoing reasons, Ayinde's habeas corpus petition is dismissed. The Clerk is requested to enter judgment and close this case.


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