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Etugh v. U.S. I.N.S.

filed: October 15, 1990.

WILLIAM AZUBUIKE ETUGH, PETITIONER
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



Petition for Review of an Order of the Board of Immigration Appeals.

Greenberg, Hutchinson and Nygaard, Circuit Judges.

Author: Nygaard

The Board of Immigration Appeals ("Board") dismissed petitioner's motion to reopen his deportation proceedings because petitioner failed to establish prima facie that he was eligible for political asylum or that deportation should be withheld under sections 208 and 243(h) of the Immigration and Nationality Act ("Act"), 8 U.S.C. §§ 1158 and 1253(h), respectively. We have jurisdiction pursuant to section 106(a) of the Act, 8 U.S.C. § 1105a(a). We will deny the petition for review because we agree with the Board that petitioner failed to make a prima facie case when he alleged that persecution awaiting him in Nigeria was localized, not national in scope.

I.

Petitioner William Azubuike Etugh, a citizen of Nigeria, first entered the U.S. as a nonimmigrant visitor. He was charged with illegally remaining longer in the U.S. than permitted. An immigration judge found Etugh deportable, but granted him the privilege of departing voluntarily on or before May 31, 1987. Instead, Etugh moved to reopen his deportation proceedings in order to apply for political asylum and to request that the Attorney General withhold deportation. Etugh alleged he could not safely return to Nigeria because he was "a prime target for assassination" and his "children . . . have been kidnapped" due to "serious inter-tribal rivalries and hostilities" resulting from Etugh's inheritance of "a key parcel of land" from his late father. Etugh alleged to be threatened by factional fighting between his own townspeople, who dwell in Akirika, and townspeople of nearby Abala. He claimed that although the Nigerian federal government opposed the threatening Abala faction, the federal government was extremely weak in the vicinity, whereas local authorities supported the Abala who threatened Etugh's safety and children. Etugh also alleged his older brother had been shot and killed under similar circumstances in 1981.

Etugh supported his allegations with a letter from his brother in Nigeria. The letter related "big fighting" between Etugh's hometown and enemy factions. The brother's letter warned Etugh to stay away "until everything is over", because the Abala people "want to see you" and "they will kill you". Etugh's brother also wrote that he would send Etugh's children to a friend in Lagos, the capital city of Nigeria, where Etugh should go to find them "and take them . . . to [the] U.S."

The Immigration Judge denied Etugh's Motion to Reopen saying:

a prima facie case of eligibility for the relief sought has not been established. . .

[Etugh's] bare assertions for asylum are, unsupported. Additionally, the Motion gives no believable basis for any alleged kidnapping of [Etugh's] children and persecution of him if he returns to Nigeria. Further, [Etugh] is not required to return to any alleged unsafe area in Nigeria. . . .

Quoting from Matter of Acosta, I.D. 2986 (1984), the IJ noted that to qualify as a refugee, an alien must do more than show a well-founded fear of persecution in a particular place or abode within a country; he must show that the threat of persecution exist for him country wide.

Etugh filed a timely appeal with the Board and submitted three letters from Nigeria supporting his application for asylum. One of these letters indicated the Abala people invaded Etugh's hometown of Akirika. In the invasion three men were killed, five children (including two of Etugh's) were kidnapped, and Akirika villagers were scattered to places remote from the local fighting. The other two letters described similar circumstances.

The Board dismissed Etugh's appeal by concluding Etugh failed to make a prima facie showing of the well-founded fear or clear probability of persecution required for asylum and withholding of deportation. The Board reasoned Etugh failed to establish prima facie eligibility for asylum and withholding of deportation because (1) "the events in Akirika as set forth in the documents provided by [Etugh] are confused and inconsistent" App. p.29.; (2) "the motive for the actions of the Abala people is unclear. . . . [and] it has not been shown that their actions are related to the race, religion, nationality, membership in a particular social group, or political opinion of [Etugh] or anyone else in Akirika" App. p.29; and (3) Etugh "has not established that he would be unable to live safely in Nigeria outside of Akirika". App. p.30. With respect to this last finding, the Board noted that when deported Etugh would not be required to return to the village where he resided. The Board's decision was a final denial of Etugh's motion to reopen to apply for relief under sections 208 and 243(h) of the Act.

Etugh filed a timely petition asking that we review the Board's decision. In his petition, Etugh contends he satisfied his burden of establishing a prima facie case for asylum, and so the Board both abused its discretion by denying ...


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