Iroegbu Clifford Esomonu v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IROEGBU CLIFFORD ESOMONU,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 13-74353
Agency No. A077-163-461
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 19, 2017
San Francisco, California
Before: SCHROEDER and MURGUIA, Circuit Judges, and MCCALLA,**
District Judge.
Petitioner Iroegbu Clifford Esomonu, a native and citizen of Nigeria, appeals
the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of the
immigration judge's ("IJ") order denying of his application for asylum, withholding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jon P. McCalla, United States District Judge for the
Western District of Tennessee, sitting by designation.
FILED
JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of removal, and United Nations Convention Against Torture (“CAT”) protection.
Esomonu argues he qualifies for asylum based on past persecution and seeks to
reinstate his 2000 asylum application. Esomonu also challenges the BIA’s denial
of his request for withholding of removal and CAT protection. We have
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings, Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008),
and we review de novo questions of law, Mohammed v. Gonzales, 400 F.3d 785,
791–92 (9th Cir. 2005). We deny the petition for review.
In 2000, Esomonu applied for asylum based on religious persecution. In
April 2003, before the IJ adjudicated his application, Esomonu moved for
voluntary departure to Nigeria or Canada. Esomonu and his counsel
acknowledged that this withdrawal meant Esomonu could not reapply for asylum
absent exceptional circumstances. Esomonu then voluntarily departed to Canada,
but in 2003 illegally re-entered the United States. Four years after Esomonu’s
2003 reentry, in 2007, he moved to reopen his removal proceedings and reinstate
his 2000 asylum application.
Esomonu first contends that he should be able to reinstate his 2000 asylum
application. The BIA denied Esomonu’s request to reinstate his previous asylum
application because Esomonu withdrew it in exchange for voluntary departure. By
knowingly and voluntarily withdrawing his asylum application in exchange for a

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tactical advantage,1 Esomonu waived his right to revive it. See INS v. Doherty, 502
U.S. 314, 327–328 (1992). Thus, we deny the petition as to Esomonu’s request to
reinstate his 2000 asylum application.
Esomonu alternatively argues that even if he could not reinstate his 2000
asylum application, the untimeliness of his 2007 asylum application is excused by
changed country conditions and extraordinary circumstances. The BIA found
Esomonu failed to show either any “changed circumstances . . . materially
affecting” his chances of political and/or racial persecution in Nigeria, or any
“extraordinary circumstances relat[ed] to [the] delay in filing [his] application”
within one year of entering the United States in 2003. 8 U.S.C. § 1158(a)(2)(D).
Substantial evidence supports the BIA’s conclusion that Esomonu’s relocation to
two states within the United States and his use of two immigration attorneys did
not constitute “extraordinary circumstances” beyond Esomonu’s control that
directly affected his untimely filing. Substantial evidence also supports the BIA’s
determination that Esomonu’s cousin’s death, Esomonu’s joining of MASSOB, a
political pro-Biafran group, and “the alleged ‘resurgence of the mob violence
against Ibos’” are not changed country conditions that materially affected
1 The advantage of voluntary departure is two-fold: the alien spends less time in
custody and voluntary departure has a less prejudicial effect on future lawful
attempts to enter the United States than would a formal deportation. See Perez-
Funez v. INS, 611 F.Supp. 990, 993 (C.D. Cal. 1984).

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Esomonu’s risk of experiencing political or racial persecution in Nigeria.
Accordingly, we deny the petition as to whether changed country conditions or
extraordinary circumstances excused Esomonu’s delay in filing his asylum
application more than one year after entering the United States in 2003.
Esomonu further challenges the BIA’s determination that he failed to
establish past persecution to succeed on his application for withholding of removal.
To succeed on a withholding of removal claim, Esomonu had to establish that his
life or freedom would be threatened in Nigeria because of his race, religion,
nationality, membership in a particular social group, or political opinion. 8 U.S.C.
§ 1231(b)(3). He could meet that burden by proving past persecution in Nigeria
based on one of the five protected grounds, which would trigger a rebuttable
presumption of entitlement to withholding of removal. 8 C.F.R.
§ 1208.16(b)(1)(i). Alternatively, Esomonu could establish that he would face
such persecution if he were removed to Nigeria. 8 C.F.R. § 1208.16(b)(2); INS v.
Stevic, 467 U.S. 407, 429–30 (1984). The BIA found Esomonu failed under both
inquiries. Substantial evidence supports the agency’s finding that Esomonu failed
to establish past persecution because the two riots—during which his business was
burned and looted—and the general discrimination he experienced as an Igbo-
Christian in Nigeria are not sufficient to compel the conclusion that he suffered
past persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003).

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Substantial evidence also supports the BIA’s determination that Esomonu failed to
establish that it was more likely than not that he would face future persecution if
removed to Nigeria. Esomonu did not challenge the standard applied by the IJ or
BIA. We therefore deny the petition as to Esomonu’s claim for withholding of
removal.
Esomonu finally challenges the BIA’s denial of his application for CAT
relief. Substantial evidence supports the IJ and BIA’s denial of CAT relief because
Esomonu failed to establish it is more likely than not that he would be tortured if
returned to Nigeria. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir. 2004).
We deny the petition as to Esomonu’s claim for CAT relief.
Petition DENIED.

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