Daniel Oyeniran v. Eric Holder, Jr.
FILED OPINION (M. MARGARET MCKEOWN, MILAN D. SMITH, JR. and RUDI M. BREWSTER) GPETITIONS FOR REVIEW GRANTED; REVERSED AND REMANDED. Judge: RB Authoring. FILED AND ENTERED JUDGMENT.  [09-73683, 10-70689]
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL O. OYENIRAN, AKA Daniel
Olu Abraham, AKA Daniel Segun
ERIC H. HOLDER Jr., Attorney
On Petitions for Review of Decisions of the
Board of Immigration Appeals
Argued and Submitted
February 6, 2012—San Diego, California
Filed March 6, 2012
Before: M. Margaret McKeown and Milan D. Smith, Jr.,
Circuit Judges, and Rudi M. Brewster, District Judge.*
Opinion by Judge Brewster
*The Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.
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OYENIRAN v. HOLDER
Philip D. Bartz (argued) and Nicholas S. Sloey, Bryan Cave
LLP, Washington, D.C., for the petitioner-appellant.
Enitan O. Otunla (argued) and Francis W. Fraser, Office of
Immigration Litigation, United States Department of Justice,
Washington, D.C., for the respondent-appellee.
BREWSTER, Senior District Judge:
Petitioner Daniel O. Oyeniran (“Oyeniran”), a citizen of
Nigeria, seeks review of decisions by the Board of Immigration Appeals (“BIA”) to deny him protection under the Convention Against Torture (“CAT”) and to deny his motion to
reopen the case to consider new evidence.1 We hold that collateral estoppel binds the BIA to its prior determination of the
facts and legal consequences regarding past incidents of
government-sponsored violence against Oyeniran’s family
due to his father’s activities supporting Christianity over
Islam. We also conclude that the BIA abused its discretion by
denying Oyeniran’s motion to reopen to consider the significant new evidence of a Nigerian arrest warrant that charges
Oyeniran personally with inciting opposition to Sharia law.
On remand, the BIA should consider all the new evidence,
We appointed pro bono counsel to represent Oyeniran in these consolidated proceedings. We thank Philip Bartz for his able assistance and substantial effort in that regard.
OYENIRAN v. HOLDER
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including Oyeniran’s voluntary trip to visit his sick mother;
however, the BIA’s prior findings of fact constitute a baseline
on which the BIA evaluates Oyeniran’s current CAT application to determine whether it is more likely or not that he will
be tortured if removed to Nigeria. We grant Oyeniran’s petitions and remand for further proceedings consistent with this
Oyeniran is a native and citizen of Nigeria. According to
the United States Department of State’s Country Reports on
Human Rights Practices, Nigeria has equal populations of
Christians and Muslims. Deaths and violence attributed to
religious differences are common. Nigeria has a central federal government as well as thirty-six separate States. Since
approximately 2000, twelve States have adopted Islam as the
de facto State religion and now enforce Sharia law. The
Sharia Penal Code is based upon the Koran and includes punishments such as stoning, amputation, and death.
In 1990, Oyeniran was admitted to the United States as a
lawful permanent resident. In 2005, based upon several criminal convictions, he was found to be removable. Due to his
criminal record, Oyeniran’s only avenue for relief from
removal is deferral under the CAT. 8 C.F.R. § 1208.17.
“An applicant qualifies for protection under [the] Convention Against Torture if he can show that if removed to his
native country, it is more likely than not that he would be tortured by public officials, or by private individuals with the
government’s consent or acquiescence.” Afridi v. Gonzales,
442 F.3d 1212, 1221 (9th Cir. 2006), overruled on other
grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th
Cir. 2008) (en banc); 8 C.F.R. § 1208.18. “More likely than
not” “means a greater than fifty percent chance of torture.”
Edu v. Holder, 624 F.3d 1137, 1445 n.16 (9th Cir. 2010).
Acquiescence exists when “public officials were aware of the
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OYENIRAN v. HOLDER
torture but ‘remained willfully blind to it, or simply stood by
because of their inability or unwillingness to oppose it.’ ”
Bromfield v. Mukasey, 543 F.3d 1071, 1079 (9th Cir. 2008)
(citation omitted); Afridi, 442 F.3d at 1221; Zheng v. Ashcroft,
332 F.3d 1186, 1194-95 (9th Cir. 2003).
An alien who has been granted deferral of removal under
the CAT may stay temporarily in the United States. 8 C.F.R.
§ 1208.17(b)(1)(i). The Government can terminate deferral
status based on new evidence or when conditions change. Id.
§ 1208.17(b)(1)(iii), (b)(1)(iv), (d)(1).
Oyeniran Obtained Deferral under the CAT in 2005
In 2005, the Immigration Judge (“IJ”) applied the CAT
standard to the evidence presented and held that Oyeniran was
entitled to deferral. The Government appealed the ruling, but
the BIA affirmed the decision to grant Oyeniran’s CAT application.
The evidence relevant to the collateral estoppel issue
included testimony by Oyeniran and an expert witness, and
documents including Country Reports, police reports, and
newspaper articles. In brief, the evidence showed that Oyeniran’s father, Abraham Oyeniran, is a Pentecostal Christian
Archbishop and President of the United Global Churches
Association of Nigeria (hereinafter “Archbishop”).2 The
Archbishop is an outspoken and prominent critic of the Nigerian government and of extremist Islamic groups who seek to
implement Sharia law. The Archbishop engaged in highprofile activities to convert Muslims to Christianity. He also
supported the American war in Iraq.
Oyeniran described in detail two attacks on the Archbishop.
The Archbishop did not testify or provide any information in the 2005
proceeding except that, during the administrative appeal, the Archbishop
signed an affidavit stating that Oyeniran was his son.
OYENIRAN v. HOLDER
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Both occurred while Oyeniran was living in the United States.
Oyeniran relayed the information his father told him, and substantiated the violent events by introducing police reports and
newspaper articles. In the first attack in 2003, Islamic fundamentalists stopped the Archbishop’s car on the way to a “crusade” and beat up the Archbishop’s other son (Gbenga). In
2004, Islamic extremists invaded the Archbishop’s home, beat
up several members of the family, and made threats against
all of the Archbishop’s children. Oyeniran testified that the
police knew the violence was based on religious differences,
but they try to stay neutral and will not interfere or complete
The expert testimony corroborated Oyeniran’s position on
three points. First, Nigerian culture holds each member of the
family responsible for the controversial conduct of any single
member; thus, the attacks on the Archbishop threatened the
safety of his children, including Oyeniran. Second, the police
acquiesce to violence between religious groups. Moreover,
the authorities often provoke violence by hiring “thugs” to
beat or rob religious activists. Third, Sharia law is pervasive
in Nigeria and imposes harsh punishments that constitute torture.
Based on this record, in 2005, the IJ found and the BIA
affirmed that Oyeniran was credible and that he presented sufficient evidence to show a likelihood that he would be tortured upon his return to Nigeria.
At every stage of the administrative proceedings, the Government challenged Oyeniran’s claim. The Government
argued Oyeniran had not established that he would be tortured
with the acquiescence of the Nigerian government because his
evidence was speculative and from unreliable sources. It
argued that there was no evidence Oyeniran was in any danger simply because the Archbishop had been attacked by
common criminals. The Government argued the motive for
the attacks was unknown. It contended that the reasons the
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OYENIRAN v. HOLDER
police failed to make any arrests were pure conjecture. The IJ
and BIA rejected these arguments about the weight of the evidence and held that Oyeniran had met his burden of proof
under the CAT.
Oyeniran Returns to Nigeria to Visit his Mother in
In May 2007, the Archbishop asked Oyeniran to come to
Nigeria to visit his mother who had suffered a severe stroke
and might not survive. In June 2007, Oyeniran traveled to
Nigeria and stayed with his mother in the hospital for a month.3
Several arrangements were made to ensure that no one knew
Oyeniran was in Nigeria. Oyeniran stayed at the hospital his
entire visit. Oyeniran’s mother was protected at the hospital
by the security that the church had hired for the Archbishop.
Oyeniran is Denied Deferral under the CAT in 2009
Upon his return to the United States, the Government initiated a second administrative proceeding to remove Oyeniran.4
This time, Oyeniran was denied deferral under the CAT.
Oyeniran and the expert witness both ratified their prior
testimony. In contrast to the prior proceeding, the Archbishop
testified in person and added his reasons for believing the violent incidents were committed by Sharia fundamentalists who
wanted to harm his children. The Archbishop also testified
The Government improperly issued Oyeniran an emergency visa to
return to Nigeria. The visa should not have been available to an alien who
was in the United States on a CAT deferral.
When Oyeniran returned to Los Angeles, the Government’s computer
showed incorrect information about his status.
For simplicity, we refer jointly to a “second” hearing because the evidence submitted during the 2008 proceeding (on a motion to terminate
deferral) was incorporated into the 2009 hearing (on a motion to remove
an arriving alien and Oyeniran’s second application for CAT protection).
OYENIRAN v. HOLDER
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that the church had hired security guards to protect him and
his wife. He mentioned recent attempts to harm him. In addition, Oyeniran and the Archbishop described the security precautions taken for the month-long visit to the mother in the
hospital in 2007. New corroborating documents were introduced.
The IJ found that Oyeniran was not credible and held that
Oyeniran had not met his burden of proof, describing the evidence as speculative. Oyeniran appealed. The BIA affirmed
the denial of deferral, even though, ironically, it expressly
found Oyeniran’s testimony credible, reversing the IJ on that
point. It held the 2005 grant of deferral had “no dispositive
effect” and that the CAT claim was properly considered “on
a de novo basis.” The BIA rejected Oyeniran’s res judicata
argument holding that the grant of deferral is expressly subject to reconsideration. The BIA held that the violence in
2003 and 2004 did not amount to torture and that those
attacks had not been sufficiently linked to the Nigerian government.
Motion to Reopen to Consider Nigerian Arrest
In December 2009, Oyeniran moved to re-open the proceedings to submit new evidence that the Supreme Magistrate’s Court of Nigeria in Lagos issued a warrant of arrest
against him. Dated May 28, 2008, it charged that Oyeniran
had engaged “yourself and others at large in inciting and riotously challenging the spreading and propagation of Sharia
laws and traditions.”
Oyeniran stated that he did not have the evidence at the
time of the original hearings and could not have discovered
the warrant any earlier. He submitted a sworn affidavit stating
that he had called Nigeria on October 2, 2009 to talk to his
father at the church office. His father’s secretary answered the
phone and told Oyeniran about the warrant.
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In February 2010, the BIA decided that the date of the warrant (May 2008) showed the evidence was available and could
have been presented at the hearings. The BIA held that, in any
event, the evidence would not change the result.
We have jurisdiction to review a denial of deferral of
removal under the CAT. Edu, 624 F.3d at 1141-42; Haile v.
Holder, 658 F.3d 1122, 1125 (9th Cir. 2011). We also have
jurisdiction over the denial of a motion to reopen. MedinaMorales v. Ashcroft, 371 F.3d 520, 527-28 (9th Cir. 2004).
Standards of Review
“ ‘Where, as here, the BIA conducts a de novo review and
issues its own decision, rather than adopting the IJ’s decision
as its own, we review the BIA’s decision.’ ” HernandezGuadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005)
“Whether collateral estoppel is available is a mixed question of law and fact in which the legal issues predominate.
The question of its availability is subject to our de novo
review.” Davis & Cox v. Summa Corp., 751 F.2d 1507, 1519
(9th Cir. 1985), superceded on other grounds by 28 U.S.C.
§ 1961, Pub. L. No. 97-258, § 2(m)(1), 96 Stat. 877, 1062
(1982), as recognized in Northrop Corp. v. Triad Int’l Mktg.,
S.A., 842 F.2d 1154, 1156 (9th Cir. 1988).
The abuse of discretion standard governs the denial of a
motion to reopen proceedings. Edu, 624 F.3d at 1142 n.4 (citing Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir.
OYENIRAN v. HOLDER
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 It is beyond dispute that the doctrine of collateral
estoppel (or issue preclusion) applies to an administrative
agency’s determination of certain issues of law or fact involving the same alien in removal proceedings. Allen v. McCurry,
449 U.S. 90, 94 (1980); Ramon-Sepulveda v. INS, 824 F.2d
749, 750 (9th Cir. 1987) (per curiam) (doctrine applies even
when the agency reopens a removal proceeding for new evidence); Matter of Fedorenko, 19 I. & N. Dec. 57, 57 (BIA
1984) (doctrine conclusively establishes the ultimate facts of
a subsequent deportation proceeding and precludes reconsideration of issues of law resolved by the prior judgment —
absent a change in the controlling law).
Collateral estoppel applies to a question, issue, or fact when
four conditions are met: (1) the issue at stake was identical in
both proceedings; (2) the issue was actually litigated and
decided in the prior proceedings; (3) there was a full and fair
opportunity to litigate the issue; and (4) the issue was necessary to decide the merits. Montana v. United States, 440 U.S.
147, 153-54 (1979); Clark v. Bear Stearns & Co., Inc., 966
F.2d 1318, 1320 (9th Cir. 1992).
 We conclude that the BIA erred by rehashing the historical facts and its findings of law as applied to the 2003 and
2004 incidents of violence that formed the basis of its 2005
decision to grant deferral. We hold that the Government is
conclusively barred from re-litigating the following findings:
the attacks in 2003 and 2004 constituted torture as that term
is defined by the CAT based upon the injuries suffered by the
Archbishop and other family members; the acts of violence
were intended to punish or intimidate the religious and political beliefs of the Archbishop due to his prominent role in criticizing the Nigerian government, opposing Sharia law, and
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converting Muslims to Christianity; the attackers were Islamic
extremists; the past attacks threatened Oyeniran’s safety by
virtue of his father’s activities, the family relationship, and the
culture of Nigeria; and the government of Nigeria was either
involved or acquiesced in the prior attacks.
 These issues were “actually litigated” in 2005 and the
findings were “necessarily determined in the prior proceeding” to grant Oyeniran CAT relief in 2005. United States v.
Lasky, 600 F.2d 765, 769 (9th Cir. 1979).
 The Government had a fair opportunity to litigate the
circumstances of the 2003 and 2004 attacks at the first hearing. The Government specifically attacked the evidence in
that very proceeding, for example, by cross examining the
witnesses and challenging the weight of the evidence. All of
the weaknesses mentioned by the BIA in 2009 were evident
when Oyeniran first offered the evidence in 2005.
The Government argues that the 2009 decision is justified
by the Archbishop’s testimony, as he did not appear in the
2005 proceedings. We disagree. The introduction of new evidence on a matter previously resolved is not an exception to
collateral estoppel. Ramon-Sepulveda, 824 F.2d at 750-51; see
Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1359 (9th Cir.
2007) (“Res judicata bars the government from bringing a
second case based on evidence . . . that it could have presented in the first case.”); 18 Moore’s Fed. Practice
§ 132.02[c], [d] (3d ed. 2010) (distinguishing evidence of
“changed circumstances” from evidence that is “historical in
 Moreover, the BIA’s flip-flop on past issues is unsupported and arbitrary because the additional evidence introduced during the 2009 hearing was stronger than the evidence
presented in 2005. In 2005, Oyeniran’s testimony about the
violence was hearsay, but in 2009 the Archbishop testified as
a percipient witness to the attacks. The Archbishop corrobo-
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rated that the attacks had been committed by Islamic extremists who would harm his children. He testified that the
attackers in 2003 wore distinctive Sharia police uniforms. He
introduced another police report confirming that the attackers
in 2004 had come “to eliminate his children.” Additionally,
the violence prompted the Archbishop’s church to hire security protection “against Islamic Terrorists.” In all, the Archbishop’s testimony reinforced and was fundamentally
consistent with the evidence supporting his son’s earlier application for CAT protection.
We are not persuaded by the Government’s argument that
the 2009 hearing involved a different claim that was not identical to the 2005 claim. Instead, we find a clear identity on the
issue of the nature of the 2003 and 2004 attacks. The ramifications of those past events were plainly resolved in Oyeniran’s favor in the prior CAT proceeding. Nor do the new facts
explain the BIA’s complete reversal of its view of past events.
In sum, this case is a textbook example that “repose is justified on the sound and obvious principle of judicial policy that
a losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on an issue identical in substance to the one he subsequently seeks to raise.” Astoria Fed.
Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991).
New Evidence that Arose after the First Decision
 The BIA erred when it reasoned that collateral estoppel
did not apply because the regulations state that termination of
deferral is subject to “a de novo determination.” 8 C.F.R.
§ 1208.17(d)(3). The BIA failed to recognize that collateral
estoppel applies to findings made in the initial determination
and that new evidence and changed circumstances now permit
it to reconsider the substantive question of whether the alien
with deferral status is more likely than not to be tortured in
the future if returned home.
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It is obvious that the initial decision to grant deferral under
the CAT does not forever bind the agency to the ultimate conclusion. The very nature of deferral permits reevaluation of
whether it is more likely than not that an alien will be tortured
in the future based on new facts. Al Mutarreb v. Holder, 561
F.3d 1023, 1031 (9th Cir. 2009) (in a new proceeding, the
Government can present “facts that have arisen or come to
light after” the original proceeding took place); Belayneh v.
INS, 213 F.3d 488, 491-92 (9th Cir. 2000) (conditions in a
country can change over time).
On remand, the BIA may consider events that occurred
after the 2005 hearing. The BIA must evaluate any new evidence in light of the prior findings on past events to decide
Oyeniran’s current application for deferral from removal. The
new evidence includes, but is not limited to, evidence such as
the circumstances surrounding Oyeniran’s clandestine trip to
Nigeria in 2007 and, as discussed below, the 2008 Sharia
arrest warrant. See Boer-Sedano v. Gonzales, 418 F.3d 1082,
1091-92 (9th Cir. 2005) (an applicant’s return trip to his country is relevant to his fear of future persecution, but standing
alone it is not fatal to an asylum claim). At the same time, the
BIA’s prior decision conclusively resolved certain past events
and those historical events cannot be re-litigated. The BIA
must respect the principle of repose.
 Nonetheless, we decline Oyeniran’s invitation to reach
the merits of whether substantial evidence supports the decision to deny his application for deferral. The BIA should have
an opportunity to conduct a proper analysis of the entire
record of relevant evidence.
Motion to Re-Open
 “[A] motion to reopen alleges new facts that bear upon
the agency’s earlier decision.” Ghahremani, 498 F.3d at 997
n.1. The BIA’s regulations state that “[a] motion to reopen
proceedings shall not be granted unless it appears to the Board
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that evidence sought to be offered is material and was not
available and could not have been discovered or presented at
the former hearing.” 8 C.F.R. § 1003.2(c)(1).
 We conclude the BIA abused its discretion by rejecting
the new evidence. Arrozal v. INS, 159 F.3d 429, 432-33 (9th
Cir. 1998). Oyeniran offered a legitimate and plausible explanation that he first learned about the warrant when he called
his father in late 2009 and the secretary told him about it. See
Malty v. Ashcroft, 381 F.3d 942, 947 (9th Cir. 2004); Ordonez
v. INS, 345 F.3d 777, 786-87 (9th Cir. 2003). It is not sufficient that the evidence physically existed in the world at large;
rather, the evidence must have been reasonably available to
the petitioner. See Afriyie v. Holder, 613 F.3d 924, 937 (9th
Cir. 2010); Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir.
2003) (reversing denial of motion to reopen when “evidence
was not as a practical matter discoverable”). Oyeniran was in
custody from 2007 to 2010 in an immigration detention facility in Texas. Oyeniran’s confinement supports his assertion
that he could not have discovered that a judge in Nigeria
issued an arrest warrant until he called his father’s office in
October 2009 and happened to speak to the secretary who
knew about it. The slight delay between Oyeniran’s discovery
of the warrant in October and its submission to the BIA in
December is reasonably explained by the time needed to get
a copy of the warrant from Nigeria to Texas. Sidhu v. INS,
220 F.3d 1085, 1091-92 (9th Cir. 2000) (recognizing difficulty of obtaining evidence from foreign countries).
 Moreover, the new evidence is significant, dramatic,
and compelling. The warrant shows that the Nigerian government is actively pursuing Oyeniran for “inciting and riotously
challenging the spreading and propagation of Sharia laws and
traditions.” This political and religious charge is the basis of
Oyeniran’s request for CAT relief. The charge is directed
against Oyeniran personally. Najmabadi v. Holder, 597 F.3d
983, 987 (9th Cir. 2010) (evidence showing persecution was
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directed “specifically” at petitioner is “qualitatively different”
than generalized information on country conditions).
The warrant is also troubling because it was issued at a
time when Oyeniran was in custody in the United States.
Though the warrant charges conduct “in” Lagos State and
claims that the “defendant was duly served with the summons,” aside from his trip to his mother’s hospital bed in
2007, Oyeniran had not been in Nigeria since 1997 and denies
having been served. The new evidence thus supports the
expert’s testimony that opponents will impute the religious
activities of the Archbishop to his children and that visible
and vocal opposition to Sharia law is prosecuted and punished
by entities of the Nigerian government.
 On remand, the BIA should consider the new evidence of the arrest warrant along with all of the other new evidence presented to decide Oyeniran’s application for deferral.
We conclude that collateral estoppel binds the BIA to its
prior determination that the attackers in 2003 and 2004 were
Islamic extremists seeking to punish the Archbishop for his
outspoken criticism of Islam and his efforts to convert Muslims to Christianity; that the violence satisfied the definition
of torture under the CAT; that the prior attacks constitute a
threat to Oyeniran by virtue of his family relationship to the
Archbishop; and that the Nigerian government turned a blind
eye to the prior violent incidents against the Archbishop’s
family. We also conclude that the BIA erred by denying the
motion to reopen to introduce the Nigerian warrant that
charges Oyeniran with violating Sharia law. On remand, the
BIA shall reconsider the merits of Oyeniran’s application for
deferral in a manner consistent with this opinion.
PETITIONS FOR REVIEW GRANTED; REVERSED
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