Oshodi v. Holder

• Decision Date: 27 August 2013
• Docket Number: No. 08–71478.,08–71478.
• Citation: 729 F.3d 883
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

729 F.3d 883

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.

No. 08–71478.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc Dec. 11, 2012.

Filed Aug. 27, 2013.

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

John W. Blakeley (argued), Donald E. Keener, and Stuart F. Delery, United

States Department of Justice, Civil Division, Washington, DC, for Respondent.

Gwendolyn M. Ostrosky and Lawrence A. Cox, Arnold & Porter LLP, Los Angeles, CA, 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, CA, for Amici Curiae National Immigrant Justice Center and American Immigration Lawyers Association.

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

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.

Opinion by Judge PAEZ; Dissent by Chief Judge KOZINSKI.

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,...