No. 24-1412 RASHEED AKINSANYA,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Montecalvo, Howard, and Aframe, Circuit Judges.

Benjamin Osorio, with whom Alaina Taylor and Murray Osorio PPLC, were on brief, for petitioner. Liza S. Murcia, Attorney, Office of Immigration Litigation, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony C. Payne, Assistant Director, Office of Immigration Litigation, United States Department of Justice, were on brief, for respondent. SangYeob Kim, with whom Gilles Bissonnette was on brief, for American Civil Liberties Union of New Hampshire, amicus curiae.

January 10, 2025 AFRAME, Circuit Judge. Rasheed Akinsanya is a Nigerian citizen. He has brought a petition for review challenging the administrative denial of his application for deferral of removal pursuant to the regulations implementing the Convention Against Torture ("CAT"). Akinsanya contends that if he were to return to Nigeria, he would be tortured by a terrorist organization called Boko Haram. The Board of Immigration Appeals ("BIA") affirmed the conclusions of the Immigration Judge ("IJ") that Akinsanya could not obtain deferral of removal under the CAT because he failed to demonstrate that Nigerian officials would acquiesce to his potential torture. In evaluating Akinsanya's claim, the BIA did not correctly apply the appropriate legal test for acquiescence. We therefore grant the petition and remand for further proceedings.

I.

Before entering the United States, Akinsanya served in the Special Anti-Robbery Squad ("SARS") of the Nigeria Police Force. In 2013, the Nigerian government investigated Akinsanya's SARS unit for a host of allegations including corruption, nepotism, abuse of power, and providing material support to Boko Haram, a terrorist group present in Nigeria.1 Akinsanya cooperated in the investigation, which culminated in the arrest of several officers, including a deputy commissioner.

1 The IJ describes Boko Haram as an "insurgent group operating and expanding out of the Northeast region of Nigeria with aspirations to replace Nigeria's secular state structure with an Islamic state." Since 2009, Boko Haram has caused more than forty thousand deaths in Nigeria.

- 2 - Following the investigation, the government reassigned Akinsanya to a different police unit in the northern region of Nigeria. This new unit was focused on combatting kidnapping and human trafficking by Boko Haram. Meanwhile, Akinsanya began receiving anonymous telephone calls and texts that caused him concern for his safety.

In October 2013, Akinsanya entered the United States on a B-1 visa to attend a police conference. The visa authorized Akinsanya to remain in the country until April 2014. While in the United States, Akinsanya learned that one or more people had broken into his house. They took his laptop, vandalized a file cabinet, removed a confidential file identifying Boko Haram informants, and left a threatening letter. Akinsanya also learned that Boko Haram had attacked his new division and caused the deaths of eight officers, including two who had been reassigned with him.

After these events, Akinsanya decided to remain in the United S