Joseph Awolesi and Ebenezer Awolesi v. John Ashcroft

U.S. COURT OF APPEALS FOR THE THIRD CIRCUIT

Joseph Awolesi and his son Ebenezer, citizens and natives of Nigeria, petitioned the Third Circuit to review an order by the Board of Immigration Appeals (BIA), which reversed the decision of the immigration judge who granted them asylum.  Awolesi and his son were granted asylum because Awolesi feared the Nigerian government would persecute him for his political beliefs.  Awolesi’s brother Matthew Awolesi is a member of the Social Democratic Party in Nigeria, and was the target of assassination attempts by the Nigerian security forces and is currently in hiding.  Because Awolesi had financially supported his brother’s political campaign in Nigeria, he fears that the Nigerian government believes that he is a member of the pro-democracy party and will be persecuted as well.

The BIA’s reversal did not explain how it reached its decision, only that there was insufficient evidence.  Therefore, the Third Circuit could not “perform a meaningful review” and cancelled the order of deportation and remanded the case for further reconsideration.

Awolesi and his son arrived in the U.S. in February 1993 with visitor’s visas, which expired in August 1993.  In October 1993, Awolesi applied for asylum and withholding of deportation.  In his application, Awolesi claimed the Muslim fundamentalist police would persecute him because of his Christina religion.  His application was denied, and he and his son were ordered to appear before an immigration judge for overstaying their visas.  When he appeared before the judge, Awolesi testified that he had been threatened by members of the military and feared he would be persecuted because of his political beliefs if he returned to Nigeria.  He fled Nigeria in 1993 because he feared the outcome of the upcoming elections.  He took his then teenage son, Ebenezer, but left behind his wife and other children, who were not harmed in his absence.  Awolesi said that he feared the Nigerian government would kidnap his son as a means of coercion, a valid claim due to the arbitrary arrest and imprisonment of relatives and friends of wanted suspects in Nigeria.

After a full hearing on the merits of the case, the immigration judge granted asylum for Awolesi and Ebenezer.  The INS appealed the decision to the BIA, which reversed the judge’s ruling.

Citing Abdulai v. Ashcroft 239 F.3d 542 (3d Circuit 2001), Awolesi argued that the BIA’s four-sentence decision left no room for the Third Circuit to review it.  He also claimed that the decision violated his due process rights.  The Third Circuit, citing Abdulai and also Sotto v. INS 748 F.2d 832, 836 (3d. Circuit 1984), ruled that the BIA had not sufficiently explained why it denied Awolesi’s petition.  The Third Circuit, therefore, could not determine why the immigration judge’s ruling was reversed.  Awolesi’s petition for review was granted.

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In Re: Grand Jury Subpoena v. Under Seal

Two FBI agents interviewed the Appellant for the purposes of determining if he had any information regarding terrorism investigations.  The FBI also discussed the Appellant’s earlier filing of an I-485, or green card application.  One of the FBI agents asked the Appellant about one of the I-485 questions, which says “Have you ever, in or outside the United States…been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations?”  The Appellant answered “no” to this question on the form, and when the FBI agent questioned him about this when considering his previous conviction for shoplifting, the Appellant stated that his counsel had advised him to respond “no”.

The Counsel appeared before a federal grand jury that was investigating the Appellant for making a false statement on the form.  When asked about whether or not the attorney advised the Appellant to answer “no”, the attorney declined to answer, stating that her answers would reveal privileged information.  The grand jury proceedings were suspended.  The government moved to have Counsel answer the question, while the Appellant moved to quash the subpoena, arguing that the answer would reveal privileged information.  The district court granted the Government’s motion to compel.  The court reasoned that the Appellant waived the privilege with respect to the questions at issue when he made statements to the FBI.

On appeal, the Appellant argues that he did not waive his attorney-client privilege with respect to the information sought by the Government.  The Court found that by asking about the preparation of Form I-485, the questions did in fact seek disclosure of the specific nature of the legal advice sought by Appellant.  The Court agreed with the district court that the attorney-client privilege would generally protect against disclosure of whether Counsel advised Appellant to answer “no” to a question on his I-485.  The Court found that the Government’s question asked Counsel to reveal the substance of legal advice that she may have given to Appellant concerning his submission of Form I-485 – a confidential communication that clearly falls within the scope of the privilege.  The Court also rejected the Government’s argument that because the I-485 was a public document there was no intention for the document or information pertaining to it to remain confidential. 

However, the Court affirmed the decision because it found that although the information did fall within the attorney-client privilege, the Appellant did waive that privilege by divulging information to the FBI agents.  By naming the attorneys by name and specifying which attorney instructed him to say “no”, the Court found that the Appellant waived all privacy and privilege that may have existed in this relationship.