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Oshodi v. Holder

United States Court of Appeals, Ninth Circuit

August 27, 2013

Olakunle Oshodi, AKA Bode Okeowo, AKA Olakunle Akintola Oshodi, AKA Olakunle Akintola Akinbayo Oshodi, AKA Isaac Oliver Alger, AKA Curtis Evans, AKA Bode Olacune Okeowo, AKA Isaac Okeowo, Petitioner,
v.
Eric H. Holder, Jr., Attorney General, Respondent.

Argued and Submitted En Banc December 11, 2012—Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A023-484-662

Marc Van Der Hout (argued) and Lisa Weissman-Ward, Van Der Hout, Brigagliano & Nightingale, LLP, San Francisco, California, for Petitioner.

John W. Blakeley (argued), Donald E. Keener, and Stuart F. Delery, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.

Gwendolyn M. Ostrosky and Lawrence A. Cox, Arnold & Porter LLP, Los Angeles, California, for Amici Curiae Lawyer's Committee for Civil Rights, and Center for Gender and Refugee Studies.

Julian L. Andre and Matthew J. Smith, McDermott Will & Emery LLP, Los Angeles, California, for Amici Curiae National Immigrant Justice Center and American Immigration Lawyers Association.

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Richard A. Paez, Johnnie B. Rawlinson, Jay S. Bybee, Milan D. Smith, Jr., Mary H. Murguia, and Morgan Christen, Circuit Judges.

SUMMARY[*]

Immigration

The en banc court granted a petition for review of the denial of withholding of removal and protection under the Convention Against Torture in a case in which the petitioner asserted that the immigration judge violated his right to due process by limiting his testimony at his merits hearing and then denying relief on adverse credibility grounds.

The en banc court held that applicants for asylum and withholding of removal have a due process right to testify fully as to the merits of their application. The en banc court explained that the IJ's refusal to hear petitioner's full testimony with respect to the abuses he suffered in Nigeria was particularly troublesome because the denial of relief rested solely on an adverse credibility finding, and the limitation of testimony hampered the IJ's ability to judge the totality of the circumstances, including petitioner's demeanor, candor or responsiveness, and the consistency between petitioner's oral testimony with his written declaration.

The en banc court held that the IJ's actions caused petitioner prejudice because the outcome turned entirely upon petitioner's credibility. The en banc court remanded for a new hearing before an immigration judge.

Dissenting, Chief Judge Kozinski, joined by Judges Rawlinson and Bybee, wrote that the majority's ruling was wholly unnecessary because the IJ did not preclude petitioner from testifying, and even assuming the IJ limited the testimony, there is no due process right to give live testimony at every administrative hearing where important property or liberty interests are at stake. Chief Judge Kozinski also wrote that petitioner in this case failed to demonstrate that the IJ's actions caused him prejudice.

OPINION

PAEZ, Circuit Judge.

Olakunle Oshodi petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") decision finding him not credible and denying his application for withholding of removal and protection under the Convention Against Torture ("CAT").[1]Oshodi argues, inter alia, that the IJ violated his due process rights by denying him the opportunity to testify about the events of his past persecution in Nigeria while also finding him not credible and failing to give him notice before relying on lack of corroboration in the adverse credibility decision. He also argues that the IJ's credibility analysis violated the REAL ID Act and was not supported by substantial evidence. A three-judge panel of this court rejected Oshodi's due process arguments and, reaching the merits of the IJ's credibility determination, concluded that it complied with the REAL ID Act and was supported by substantial evidence. We granted rehearing en banc.

We hold that the IJ violated Oshodi's due process rights at his removal hearing by cutting off his testimony on the events of his alleged past persecution in Nigeria that are the foundation of Oshodi's withholding of removal and CAT claims. The IJ's refusal to admit Oshodi's testimony is particularly troublesome since Oshodi was denied relief solely on the basis of the IJ's adverse credibility finding. It is well established that live testimony is critical to credibility determinations. Thus, the IJ's restrictions on Oshodi's testimony precluded the IJ from conducting a proper "totality of the circumstances" credibility analysis. Because we conclude that Oshodi did not receive a full and fair hearing as guaranteed by the Fifth Amendment, we grant the petition and remand for a new hearing. We therefore do not reach Oshodi's other arguments.

BACKGROUND

Olakunle Oshodi, a Nigerian national, has resided in the United States since 1981. He is married to a United States citizen, and has a United States citizen daughter.[2] He originally entered the United States on a student visa in 1978. In 1981, after his visa expired, Oshodi was removed to Nigeria. He remained in Nigeria for two months and while there he claims he was detained, beaten, and tortured by the Nigerian authorities on at least two occasions on account of his political activities.

In a declaration attached to his asylum application, Oshodi stated that he was exposed to Nigerian politics, and related persecution, at an early age through his politically active mother. According to his declaration, on one occasion his mother was badly burned by molotov cocktails thrown at her by government agents. Soon after, she was killed by officers of General Gowon, the head of state from 1966 to 1975.[3] As a teenager, he joined the National Association of Nigerian Students ("NANS"), a political group initially formed to oppose General Obasanjo, leader of the military regime in power at the time and later president of Nigeria from 1999 to 2007.[4]

But it was not until his return to Nigeria in 1981 that Oshodi experienced direct persecution by the government. As Oshodi recounted in his declaration, he reentered Nigerian politics upon his return by joining the Unity Party of Nigeria, a political party affiliated with NANS. At his first rally, police officers forcefully disbanded the peaceful protest with tear gas and swagger canes. Although Oshodi escaped, many of his colleagues were detained and tortured. In the following weeks, however, Oshodi experienced two incidents of severe persecution at the hands of Nigerian officials.

On February 8, 1981, Oshodi and his colleague Doyin Odunuga were stopped at a police checkpoint. When the police officers saw their political propaganda, the police immediately ordered them out of the car, at which point Odunuga sped away. The officers shot at the car, hit Odunuga, and the car crashed. The officers pulled Oshodi and Odunuga out of the car and beat them. Odunuga was eventually sent to the hospital, where he died from his injuries eight days later. Meanwhile, Oshodi was detained in jail and interrogated. According to Oshodi's declaration, the officers "tortur[ed him] with different techniques, " beat him unconscious with swagger canes, and deprived him of food for two days. Ultimately, his uncle paid a bribe of $2, 000 to obtain his release but Oshodi was assigned to weekly monitoring, the violation of which would trigger an "open warrant" for his arrest. Because of his continued political activity, Oshodi violated the monitoring requirement.

The following week, after driving a fellow party member to the airport, Oshodi was pulled over and detained by five officers. He was handcuffed, blindfolded, and driven to an unknown location. The officers shot him in the foot, burnt him with cigarettes, shocked him with electricity, and beat him with their pistols. They stripped him naked and doused him with gasoline, threatening to burn him alive. They sodomized him with swagger canes and dirty bottles. After they finished, the officers left him on the side of the road, where passers-by discovered him and took him to the hospital. At that point, Oshodi decided he could no longer safely remain in Nigeria and fled to the United States.[5]

In light of these events in Nigeria, Oshodi sought asylum, withholding of removal, and CAT relief; however, at his removal hearing, Oshodi was precluded from testifying about these incidents of persecution and torture. After Oshodi began to discuss the first political rally he attended, a precursor to the two events of severe persecution and torture in his declaration, the IJ cut off the direct examination by his attorney. The IJ directed Oshodi to limit his testimony to events not discussed in his asylum application, apparently on the notion that the declaration was sufficient for him to judge the veracity of the events as described therein:

I'll tell you what. I've read the statements of the respondent, read his application. I've gone over the materials. I'm not looking for everything to simply be repeated. I mean I understand that there needs to be testimony concerning [the] application, but if you have something to add to what was there, fine; otherwise, I don't need it line by line, okay?

Oshodi's attorney followed the IJ's directive.[6] As a result, Oshodi did not testify about the key events of persecution and torture that form the foundation of his claims for withholding of removal and CAT relief.

The remainder of Oshodi's direct testimony was devoted mostly to clarifying a point from the expert's testimony, that it was his membership in the Unity Party of Nigeria, not NANS, that led to his persecution in 1981. At one point, Oshodi's attorney again attempted to question him about his encounters with the Nigerian police. As Oshodi began to answer, the IJ interjected, "Counsel, do you have a specific question for the respondent to answer because right now I don't know what he's answering."[7] With that admonishment, Oshodi's counsel wrapped up his direct examination by asking Oshodi only if he felt he would be safe if he returned to Nigeria or if he could travel within Nigeria to escape the persecution and torture that he feared. Without asking Oshodi any direct questions about his encounters with the Nigerian authorities, Oshodi's counsel ended his examination: "Nothing further, Your Honor. We submit on the basis of the testimony of the respondent, as well as the documents that are presented." The entirety of Oshodi's direct examination covers fewer than ten pages of transcript.

During cross-examination, the government's attorney asked Oshodi several yes or no questions about the events discussed in his declaration, but did not allow him to explain these events:

Q: And the person who was driving sped through the checkpoint, is that correct, at one point?
A: My application said that.
Q: Is that true? Is that what happened?
A: Yeah, but can you ask me what happened before that?
Q: I'll ask the questions, please. You went to the checkpoint, is that correct?
A: Uh-huh, that's correct.
Q: You stopped for a bit?
A: Yes, counselor.
Q: Your person behind the wheel got scared and sped off, is that correct?
A: No, that's wrong.

The government quickly moved on without affording Oshodi the opportunity to elaborate on what actually happened. The IJ had already warned Oshodi to answer the government's questions directly and not to "expand" on them. The remainder of his testimony did not address the substance of his asylum claim, but focused on peripheral issues related to his credibility, such as the number of his siblings, his failure to apply for asylum earlier, and his prior criminal record.

The IJ recognized that Oshodi's application, if taken as true, established past persecution. The IJ, however, found Oshodi not credible—without ever hearing Oshodi testify about the events involving his persecution—on the basis of his use of aliases, his failure to provide the corroborating evidence, and various inconsistencies between his testimony, his initial credible-fear interview, and his asylum application. On this basis, he denied Oshodi's withholding of removal and CAT claims. The BIA affirmed the IJ's decision and rejected Oshodi's due process claim that the IJ denied him an opportunity to testify fully in support of his application for relief. The BIA reasoned that there was no due process violation because, following the IJ's directive limiting Oshodi's testimony, Oshodi's attorney asked Oshodi if he had anything to add to his written application and Oshodi briefly testified further about additional, albeit peripheral, details of his application.[8]

ANALYSIS

A.

Unlike challenges to the merits of an IJ's decision, which we review under the deferential substantial evidence standard, we review de novo due process claims in removal proceedings. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). It is well established that the Fifth Amendment guarantees non-citizens due process in removal proceedings. Id.; see also Reno v. Flores, 507 U.S. 292, 306 (1993) (citing The Japanese Immigrant Case, 189 U.S. 86, 100–01 (1903)). Therefore, every individual in removal proceedings is entitled to a full and fair hearing. Colmenar, 210 F.3d at 971 (citation omitted). A vital hallmark of a full and fair hearing is the opportunity to present evidence and testimony on one's behalf. Id.; see also Vargas-Hernandez v. Gonzales, 497 F.3d 919, 926–27 (9th Cir. 2007) ("Where an alien is given a full and fair opportunity . . . to present testimony and other evidence in support of the application, he or she has been provided with due process."); Shoaira v. Ashcroft, 377 F.3d 837, 842 (8th Cir. 2004) ("For a deportation hearing to be fair, an IJ must allow a reasonable opportunity to examine the evidence and present witnesses.").

Indeed, where an applicant is not represented, the IJ has an affirmative duty to ensure that the record is fully developed for the benefit of the applicant. Jacinto v. INS, 208 F.3d 725, 734 (9th Cir. 2000). The statutory and regulatory regime also protects an alien's right to present evidence and testimony on his behalf in removal proceedings, including his own testimony. 8 U.S.C. ยง 1229a(b)(4)(B) ("[T]he alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the ...


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