Tony Karlo Aghahowa v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2647
TONY KARLO AGHAHOWA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A75-546-401
(U.S. Immigration Judge: Honorable Andrew Arthur)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 1, 2008
Before: SCIRICA, Chief Judge, HARDIMAN and STAPLETON, Circuit Judges
Filed: April 8, 2008
OPINION OF THE COURT
PER CURIAM.
Tony Karlo Aghahowa petitions for review of a decision of the Board of
Immigration Appeals, which found him removable and denied his applications for relief.
We will deny the petition.

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The Notice to Appear references criminal case numbers MC 0506-0479, MC 0506-1
0480, and MC 0506-1909.
In support of his allegation that the three cases had been dismissed, Aghahowa2
presented three documents: (1) a letter dated June 20, 2006, from one of his defense
attorneys, regarding criminal number M.C. #0507-2879, stating in part that “All the
felony charges have been changed to misdemeanor charges”; A.R. 501; (2) a letter dated
September 5, 2006 from another of his defense attorneys, captioned with the same
number, stating that his “case was discharged” and that he should not still be in prison if
(continued...)
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I.
Tony Karlo Aghahowa is a native and citizen of Nigeria. He entered the United
States in 1991 and became a conditional lawful permanent resident on December 31,
1998 based on his marriage to a U.S. citizen. Aghahowa was served with a Notice to
Appear in 2006, charging him with being removable because his conditional permanent
residency had been terminated, and because he had committed two or more crimes
involving moral turpitude. In removal proceedings before an Immigration Judge (IJ),
Aghahowa testified that he had filed an application to remove the conditions of his
residency in October 2000, but did not know what had happened with the application. He
stated that he had difficulties in contacting anyone to check on the application.
According to the Notice to Appear, his conditional status was terminated on December
31, 2000. A.R. 511.
The Notice to Appear listed three convictions, each on December 5, 2005, for
Unlawful Taking and Theft by Receiving Stolen Goods. Aghahowa claimed that the1
three convictions had been dismissed, but based on records of conviction submitted by2

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(...continued)2
that was “the only case holding you”; A.R. 499; and (3) copy of a notice referencing
numbers MC0506-1909, MC0506-0479, and MC0506-0480, informing him that he was
to report to probation upon his release; A.R. 24.
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the Government, an IJ found otherwise. A.R. 129-36; A.R. 474-93. The IJ found that
Aghahowa was removable as charged and suggested that he file an asylum application,
since he had indicated a fear of returning to Nigeria. A.R. 135.
Aghahowa filed an asylum application and a hearing was held. Aghahowa
testified about his difficulties in Nigeria as a journalist in 1987 and 1990. He testified
that he was detained by the police for about a week in July 1987 during which time he
was beaten, handcuffed to the bars of his jail cell, and gassed regularly. He also testified
that he and other journalists were not fed. He testified that he was arrested about four
times in December 1990 for writing about corruption. He was detained on each occasion
for about four hours, and again was beaten, cuffed and gassed.
The IJ found that Aghahowa’s application for asylum was untimely, but stated that
even if it were timely, he would have denied the application. The IJ questioned whether
Aghahowa’s experiences in Nigeria constituted persecution, but found that even if they
were, Aghahowa would not be eligible for asylum because there had been a fundamental
change in country conditions, and because Aghahowa testified that there was no reason he
could not live in Lagos. A.R. 77-79. Because he failed to meet the burden for asylum,
the IJ found that he failed to meet the higher burden for withholding of removal. A.R. 80.

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Aghahowa later filed a supplement to his petition, which raised, inter alia, a3
challenge to his continued detention. By order of the Court on July 17, 2007, the petition
was transferred, to the extent it raised claims concerning detention, to the District Court
of Aghahowa’s confinement.
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The IJ noted that the treatment Aghahowa received was many years ago, and that coupled
with the country changes and the fact that he could live in other parts of Nigeria, would
undercut his claim for relief under the Convention Against Torture. A.R. 81.
The Board of Immigration Appeals (BIA or Board) dismissed the appeal. The
Board, citing the State Department’s 2006 Nigeria Profile, agreed with the IJ that there
had been “a marked improvement in human rights [in Nigeria] and that the press enjoys
greater freedom than under previous governments.” A.R. 3. The Board further noted that
it had been 15 years since Aghahowa had been targeted in Nigeria, and that there was no
evidence that the current government would have any interest in harming him. Id.
Aghahowa then filed a petition for review of the Board’s decision.3
II.
We have jurisdiction to review final orders of removal under section 242(a)(1) of
the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1), as amended by the REAL ID
Act of 2005. When the Board issues a decision on the merits, we generally review only
the Board’s order. See Li v. U.S. Attorney General, 400 F.3d 157, 162 (3d Cir. 2005);
Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001). Where the Board adopts the
reasoning of the IJ with some discussion of the bases for the IJ’s decision, we also review

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the order of the IJ. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We use a
substantial evidence standard to review factual findings; Tarrawally v. Ashcroft, 338 F.3d
180, 184 (3d Cir. 2003), as well as findings of an applicant’s past persecution or
“well-founded fear of future persecution,” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002). Under the substantial evidence standard, findings are upheld “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir. 2005).
Aghahowa’s claim that his convictions have been dismissed is a factual question.
The record contains certified copies of Aghahowa’s conviction for each of the three
crimes listed on the Notice to Appear. A.R. 474-93. The evidence that Aghahowa
presented; i.e., a letter from an attorney stating that a conviction with a different case
number had been “discharged”; a letter from an attorney stating that certain felony
charges had been changed to misdemeanor charges; and a notice requiring him to report
to probation; is not evidence that would compel an adjudicator to conclude that his
convictions had been dismissed.
We agree with the Government that it is not clear whether Aghahowa is
challenging the holding that he is ineligible for withholding of removal and protection

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Aghahowa did not challenge the IJ’s finding that his asylum claim was untimely in4
his appeal to the Board. The decision denying asylum is thus not before us.
Although his opening brief does not mention withholding of removal and only cites5
the law regarding the CAT, Aghahowa’s reply brief does seem to indicate that he is
challenging the denial of his relief applications.
To the extent Aghahowa raises due process claims, those claims are unexhausted as6
he failed to raise them on appeal to the Board. Abdulrahman v. Ashcroft, 330 F.3d 587,
594-95 (3d Cir. 2003). In any event, we note that Aghahowa was given ample
opportunity to obtain counsel and to present evidence regarding his convictions.
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under the Convention Against Torture (CAT). To the extent he raises such challenges,4 5
we find that substantial evidence in the record supports the BIA’s holding that changed
country conditions rebutted the presumption of future persecution. We also uphold the
finding that the record did not support a conclusion that Aghahowa would likely to be
tortured upon his return to Nigeria.6
For the foregoing reasons, we will deny the petition for review.

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