Ajiyosola Solomon v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: FISHER, HARDIMAN and GREENAWAY, JR., Circuit Judges. Total Pages: 10. Judge: FISHER Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 16-2913
____________
AJIYOSOLA AKANDE SOLOMON,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A072-168-877)
Immigration Judge: Steven Morley
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 17, 2017
Before: FISHER, HARDIMAN, and GREENAWAY, JR., Circuit Judges.
(Opinion Filed: April 6, 2017)
____________
OPINION**
____________



Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit,
assumed senior status on February 1, 2017.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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FISHER, Circuit Judge.
Ajiyosola Akande Solomon petitions for review of the Board of Immigration
Appeals’ (BIA) decision denying his application for asylum under § 208 of the
Immigration and Nationality Act (INA), 8 U.S.C. § 1158, withholding of removal under §
241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), and protection under Article 3 of the
Convention Against Torture (CAT), as implemented by 8 C.F.R. § 1208.16-18. We will
deny the petition.
I.
Solomon, a native of Nigeria, attempted to enter the United States in 1998 using a
passport issued to Olaoluwa Victor Ibironke.1 He lied to immigration officials about his
purpose for traveling to the U.S. and was sent back to Nigeria and prohibited from
entering or attempting to enter the U.S. for five years. Three months later, Solomon
reentered the U.S. as a nonimmigrant tourist, using a passport issued to Ajiyosola Akande
Solomon. Solomon thereafter married Joanne Hamilton, a legal permanent resident of the
U.S. In 2004, four days after Hamilton became a naturalized U.S. citizen, Solomon filed a
petition seeking status as a battered spouse of a U.S. citizen (Form I-360), and applied to
register as a permanent resident (Form I-485). Solomon’s Form I-485 application
indicated that he had never been previously married, that he had never been known by
any other name, and that he had never attempted to procure an immigration benefit by
1

Although his true identity is unclear, see infra Section III. B., for purposes of this
opinion we will refer to Appellant as Solomon.
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fraud or been removed. On December 10, 2008, United States Citizenship and
Immigration Services (USCIS) granted Solomon’s application and adjusted his status to
lawful permanent resident on the basis of his approved I-360 petition.
On January 3, 2012, Solomon filed an application for naturalization under § 319 of
the INA. On his application, Solomon disclosed, for the first time, that he had been
previously married to Folashade Ibironke, but maintained that he had never been known
by any other name. USCIS discovered that, at the time he married Hamilton, he was still
legally married to Folashade, that in 1998 he attempted to enter the U.S. using a different
identity (Ibironke), and that when he made that attempt, he was removed from the U.S.
Had Solomon disclosed on his Form I-485 that, at the time he married Hamilton he was
still legally married to Folashade, he would have been found ineligible for lawful
permanent-resident status. Accordingly, USCIS denied his naturalization application for
failure to demonstrate that he was lawfully admitted for permanent residence.
In July 2013, removal proceedings were initiated against Solomon, who at the time
of adjustment of status was inadmissible based on having sought an immigration benefit
through fraud. At the beginning of the removal proceedings, Solomon submitted an
application for asylum. Solomon claimed that he was persecuted in Nigeria for being a
Christian and that he had suffered physical attacks. Ultimately, the Immigration Judge
(IJ) found Solomon not credible and denied his applications for asylum, withholding of
removal, and CAT protection. Solomon appealed the IJ’s decision to the BIA. The BIA

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dismissed Solomon’s appeal, determining that Solomon was properly found removable as
charged. Solomon timely petitioned for review.
II.
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and (b)(9). We have
jurisdiction under 8 U.S.C. § 1252(a). Where, as here, the BIA adopts the findings of the
IJ and discusses some of the bases for the IJ’s opinion, we review both decisions.2 We
uphold the BIA’s factual findings if they are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.”3 We review the BIA’s legal
determinations de novo.4
III.
A.
We first consider whether, under § 246(a) of the INA, the IJ lacked authority to
order Solomon removed. Section 246(a) provides that “[i]f, at any time within five years
after the status of a person has been otherwise adjusted . . . to that of an alien lawfully
admitted for permanent residence, it shall appear to the satisfaction of the Attorney
General that the person was not in fact eligible for such adjustment of status, the Attorney
General shall rescind the action taken granting an adjustment of status.”5 Solomon argues
that § 246(a) bars the ordering of removal five years after a petitioner’s improper
2

Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).
Lie v. Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005) (citation omitted).
4
Pierre v. Att’y Gen., 528 F.3d 180, 184 (3d Cir. 2008).
5
8 U.S.C. § 1256(a).
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adjustment of status. We disagree. The statute of limitations bars the “initiation of
removal proceedings after five years if based on improperly granted [lawful permanent
residence] status.”6 Solomon fraudulently obtained lawful permanent resident status in
December 2008. His removal proceedings were initiated in July 2013. Because the
proceedings were initiated within the five-year period, the IJ properly exercised
jurisdiction over Solomon’s case.
B.
We next determine whether the IJ erroneously found that Solomon’s claims in
support of his asylum application were not credible. An adverse credibility determination
is a finding of fact.7 We will affirm unless the evidence “was so compelling that no
reasonable factfinder could fail to find requisite fear of persecution.”8
The Attorney General has the discretion to grant asylum to “refugees.”9 A
“refugee” is a person unable or unwilling to return to his or her country of origin
“because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.”10
Asylum seekers “have the burden to establish their eligibility for asylum through credible

6

Saliba v. Att’y Gen., 828 F.3d 182, 197 (3d Cir. 2016) (emphasis added).
Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003).
8
INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
9
8 U.S.C. § 1158(b).
10
Id. at § 1101(a)(42).
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testimony.”11 If, after considering the “totality of the circumstances, and all relevant
factors,”12 the IJ determines that an asylum seeker has not met his burdens of proof and
persuasion, the IJ must point to “specific, cogent reasons” that support his adverse
credibility determination.13
Here, the IJ based his adverse credibility determination on Solomon’s inconsistent
testimony, material discrepancies between Solomon’s testimony and documented
evidence, and his evasive demeanor. We find that substantial evidence supports the IJ’s
adverse credibility determination. First, as noted by the IJ, Solomon’s true identity is
undetermined. Solomon testified at the removal hearing that his true name is Ajiyosola
Akande Solomon, but he previously signed a sworn statement stating that his true name is
Olaoluwa Victor Ibironke.
Second, the IJ noted a number of inconsistencies that undercut Solomon’s claimed
fear of persecution. Solomon initially testified that, in the four-year period after he
secured permanent-resident status, he traveled to Nigeria three times. Solomon ultimately
changed his testimony after he was confronted with documentary evidence showing that
he traveled to Nigeria at least five times for a total of 140 days. An asylum seeker’s
repeated willful and voluntary trips to his home country can undermine an assertion of

11

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003).
8 U.S.C. § 1158(b)(1)(B)(ii).
13
Dia, 353 F.3d at 250; see 8 U.S.C. § 1158(b)(1)(B)(iii).
12

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well-founded fear of persecution there.14 Also, at Solomon’s 1998 interview at the U.S.
border (as Ibironke), he stated that he had no fear of persecution, despite testifying at his
removal hearing that, one month before the 1998 interview, he was brutally attacked
based on his religious beliefs.15
Third, when asked, Solomon admitted that he lied under oath in the past to avoid
removal and would do so again in the future. The IJ concluded that Solomon’s testimony
demonstrates his willingness to “engage in post-[hoc] rationalization” and do “whatever
it takes” to stay in the United States.16 Based on these inconsistencies there is substantial
evidence to uphold the IJ’s adverse credibility determination.17
Still, the IJ solicited evidence to rehabilitate Solomon’s testimony and bolster his
claimed fear of persecution.18 Solomon produced medical documentation to corroborate
an alleged attack, including a letter from a Nigerian hospital written 16 years after the
referenced attack and a letter from a doctor in the U.S. But the letter from the Nigerian
hospital did not identify its source of information or mention Solomon’s claimed injuries,

14

See Jean v. Gonzales, 461 F.3d 87, 91 (1st Cir. 2006).
Although we view inconsistencies between the airport interview and removal hearing
with caution when the arriving alien is not proficient in English, see Balasubramanrim v.
INS, 143 F.3d 157, 163 (3d Cir. 1998), Solomon is college educated and speaks English
well.
16
A.R. 103.
17
See Xie, 359 F.3d at 242-43 (upholding an adverse credibility determination based on
“inconsistencies and omissions” in the record).
18
See Sandie v. Att’y Gen., 562 F.3d 246, 253 (3d Cir. 2009) (“It is reasonable to expect
corroboration for testimony that is central to an applicant’s claim and easily subject to
verification.”).
15

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and the letter from the U.S. doctor did not identify the basis for the doctor’s expertise.
Solomon also produced unsworn letters from his friends, who were not subject to crossexamination, and whose identities could not be established through passports, licenses, or
addresses. After changing his testimony regarding how many attacks he reported to the
police, Solomon testified that he could not produce any police reports to substantiate his
claims. Finally, Solomon’s country condition evidence focused on the religious violence
in northern Nigeria, while Solomon testified that he lived in the southwest.
Because the evidence was not “so compelling that no reasonable factfinder could
fail to find requisite fear of persecution” we will uphold the BIA’s adoption of the IJ’s
adverse credibility determination.19 Solomon has failed to demonstrate that the IJ or BIA
erred in rejecting his application for asylum, withholding of removal, and CAT relief.20
C.
Finally, Solomon contends that the IJ conducted the proceedings in a manner that
violated his due process rights. In this context, due process requires that aliens threatened
with deportation have the “right to a full and fair hearing that allows them a reasonable
opportunity to present evidence on their behalf.”21 To establish a due process violation, a

19

Elias-Zacarias, 502 U.S. at 483-84.
Because we, like the BIA, find that the credibility determination is dispositive of the
issue of the asylum application’s timeliness, we do not reach the issue.
21
Abdulrahman, 330 F.3d at 596 (internal quotation marks omitted).
20

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petitioner “must show that substantial prejudice resulted from the alleged procedural
errors.”22
Solomon argues that the IJ’s determinations that Solomon did not suffer past
persecution or have a well-founded fear of future persecution indicate the IJ’s bias
against him. Disagreeing with the IJ’s interpretation of the evidence is insufficient to
demonstrate that the IJ’s ultimate determination was the result of bias or prejudgment.23
Solomon also argues that the IJ’s failure to consider how Solomon’s migraine
medication affected his testimony demonstrates bias. Solomon does not dispute that,
before his direct examination, the IJ asked him if he was taking medication that would
impair his ability to testify and that he responded that he was not. Solomon instead claims
that he answered in the negative because he forgot that he took a pill the night before.
Solomon did not reveal his concerns about the medication to the IJ until two weeks after
the hearing, at which point he did not submit evidence of how the medication could have
affected his testimony. Solomon did not produce such evidence on appeal to the BIA. In
its absence, we cannot conclude that the IJ’s failure to consider the medication’s effect on
Solomon’s testimony was a procedural error that caused prejudice. Because Solomon has
not established that the IJ failed to act impartially or deprived him of an opportunity to
testify fully, his due process claims fail.

22

Delgado-Sobalvarro v. Att’y Gen., 625 F.3d 782, 787 (3d Cir. 2010).
See Matter of D-R-, 25 I. & N. Dec. 445, 455 (B.I.A. 2011) (finding adjudicator is not
required to interpret evidence in the manner advocated by the respondent).
23

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IV.
For the reasons set forth above, we will deny Solomon’s petition for review.

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