Ojo v. Garland

• Decision Date: 09 February 2022
• Docket Number: No. 19-3237,August Term 2020,19-3237
• Citation: 25 F.4th 152
• Parties: Olukayode David OJO, AKA David Olukayode Ojo, AKA Olukayode Ojo, Petitioner, v. Merrick B. GARLAND, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

25 F.4th 152

Olukayode David OJO, AKA David Olukayode Ojo, AKA Olukayode Ojo, Petitioner,

v.Merrick B. GARLAND, United States Attorney General,^* Respondent.

No. 19-3237

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: December 16, 2020

Decided: February 9, 2022

Benjamin L. Nelson, Monroe County Public Defender's Office, Rochester, New York, for Petitioner.

Aric A. Anderson, Trial Attorney (Holly M. Smith, Senior Litigation Counsel, on the brief), for Brian M. Boynton, Acting Assistant Attorney General, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

Before: Chin, Bianco, and Menashi, Circuit Judges.

Judge Menashi dissents in a separate opinion.

Joseph F. Bianco, Circuit Judge:

Petitioner Olukayode David Ojo, a native of Nigeria, seeks review of a September 27, 2019 decision of the Board of Immigration Appeals (the "BIA") affirming an April 15, 2019 decision of an immigration judge (the "IJ", together with the BIA, the "agency"), which denied Ojo's claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). See In re Olukayode David Ojo , No. A088-444-553 (B.I.A. Sept. 27, 2019), aff'g No. A088-444-553 (Immigr. Ct. N.Y.C. Apr. 15, 2019).

We grant Ojo's petition for review and vacate the agency's denial of Ojo's claims for asylum, withholding of removal, and CAT protection because those determinations were permeated with several legal and procedural errors. First, insofar as Ojo's request for asylum was rejected as untimely, the agency applied the wrong legal standard to his claim of changed circumstances and the agency's alternative discretionary determination failed to indicate the requisite examination of the totality of the circumstances. Second, with respect to Ojo's application for withholding of removal, the agency erred when it incorrectly categorized his federal conviction for wire fraud and identity theft as "crimes against persons," and concluded that they fell within the ambit of "particularly serious crimes" without evaluating the elements of the offenses as required under the agency's own precedent. Finally, with respect to his CAT claim, the agency erred in concluding that Ojo lacked a reasonable fear of future persecution or torture in Nigeria due to his status as a criminal deportee without even addressing the declaration of his expert supporting his claim.

Notwithstanding these errors, the government urges this Court to deny review in deference to the broad discretion afforded to immigration courts in these administrative determinations. That broad discretion, however, does not allow an agency to apply an improper legal standard, ignore its own precedent, and fail to assess material expert evidence in support of one of the claims. Such fundamental defects in the agency's reasoning in this case deprived this Court of the ability to conduct meaningful judicial review of the agency's exercise of its discretion, and they do not allow us to reasonably discern and evaluate the reasons for the agency's decision. Moreover, when a court speculates as to how the agency would have decided the claim if it had operated under the correct legal standard or assumes that it considered and rejected key evidence on some unknown ground, it improperly usurps the adjudicatory role entrusted to the agency in the first instance by Congress and also subjects one of the most important decisions in our legal system – namely, whether an individual has the right to remain in the United States – to judicial guesswork. Our prior precedents do not support such an approach and, instead, require remand to allow the agency to assess the factual record under the proper legal standard and sufficiently articulate the reasons for its discretionary decision. In doing so here, we express no view as to how the agency should resolve these issues on the merits as they relate to Ojo's claims.

Accordingly, the petition for review is GRANTED, the BIA's decision is VACATED, and the case is REMANDED to the BIA.

I. BACKGROUND

Ojo, a native and citizen of Nigeria, entered the United States on October 4, 2010, as a non-immigrant visitor for pleasure with authorization to remain for six months, but never left.

A. Criminal Proceedings

In February 2014, Ojo was convicted of (1) conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343, 1349, and (2) conspiracy to knowingly possess, with intent to use unlawfully, identification documents, in violation of 18 U.S.C. § 1028(a)(3), (b)(2)(B), (c)(3)(A), (c)(3)(B), (f).¹ After early release before the completion of his thirty-seven-month sentence, he was arrested and detained by Immigration and Customs Enforcement in connection with these removal proceedings. In March 2014, the Department of Homeland Security charged Ojo with removability under Section 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B), as an alien who, after admission, remained in the United States for longer than permitted.

B. Application for Immigration Relief

In April 2014, Ojo filed an application for asylum, withholding of removal, and protection under the CAT. Ojo claimed he was afraid to return to Nigeria because, as a Christian, he would face persecution and/or torture from Boko Haram, and as a criminal deportee, he would face persecution and/or torture from the police and other individuals. Ojo also asserted that his computer business in Nigeria would suffer on account of his conviction.

Ojo participated in a number of hearings in immigration court throughout 2014. He supplemented his application for relief with various exhibits to support his assertion that, if denied relief by the agency, he would face persecution and torture in Nigeria based on his status as a criminal deportee. In particular, through his counsel, Ojo submitted the sworn declarations of two of his sisters that articulated their concern, based upon conversations with others in the community, that Ojo would be imprisoned and subject to torture in Nigeria as a criminal deportee. In addition, Ojo provided news articles corroborating the practice of Nigerian officials to detain criminal deportees. Moreover, Ojo submitted the sworn Declaration of Basil Ugochukwu (the "Ugochukwu Declaration"). Based upon his curriculum vitae , Dr. Ugochukwu is a Nigerian human rights lawyer and lecturer who is an expert on the Nigerian justice system. The Ugochukwu Declaration, after setting forth Dr. Ugochukwu's qualifications and experience with the Nigerian justice system, describes the mistreatment of criminal deportees when they return to Nigeria. Specifically, Dr. Ugochukwu opined that Ojo "will be targeted by the Nigerian police and prison officials for particularly severe abuse because he will be a criminal deportee." Cert. Admin. R. at 859. He further explained that "there is a high probability that [Ojo] will be held and detained indefinitely by the Nigerian police and prison system" where he "will face deplorable and life-threatening conditions." Cert. Admin. R. at 859.

C. The IJ's April 15, 2019 Decision

After hearings at which Ojo testified, the IJ ruled on the merits of his claims for immigration relief. The IJ found that Ojo was credible in his testimony, but denied all forms of immigration relief requested.

First, with respect to Ojo's asylum claim, the IJ determined that Ojo did not merit an exception to the one-year bar because his purported "changed and extraordinary circumstances" were "intentionally created by him through his own action or inaction" in that he caused his criminal conviction to occur. Cert. Admin. R. at 49 (citing 8 C.F.R. § 1208.4(a)(5) ). The IJ also concluded that Ojo's fear of Boko Haram did not increase as a result of Boko Haram's designation as a terrorist organization, and thus he could not show changed circumstances as to his religious persecution claim. Cert. Admin. R. at 49. As an alternative holding, while the IJ found Ojo's testimony credible, the IJ refused to exercise his discretion because Ojo's crime involved moral turpitude and denied his asylum application.

Second, the IJ held that Ojo was convicted of a "particularly serious crime," and thus ineligible for withholding of removal, because his conviction involved "a crime against persons, which brings it into the ambit of a particularly serious crime." Cert. Admin. R. at 50. The IJ noted the facts of Ojo's particular crimes – namely, the number of victims and total loss – supported the ultimate determination that "his conviction [for] a particularly serious crime" disqualified him from withholding of removal. Cert. Admin. R. at 50–51. In fact, as discussed further below, Ojo was not per se convicted of a particularly serious crime. Cert. Admin. R. at 50.

Finally, the IJ denied CAT protection, finding that Ojo failed to meet his burden of proof to demonstrate that he would more likely than not be tortured in Nigeria. After noting that the IJ must consider all available evidence, the IJ relied upon the International Religious Freedom Report and the Department of State Country Report to reject his CAT claim based on his religion. With respect to his claim that he would be arrested, detained, and tortured in Nigeria as a criminal deportee, the IJ referenced Ojo's testimony about another criminal deportee being tortured in Nigeria and found "[i]t is speculative that the same would happen to [Ojo]." Cert. Admin. R. at 52. Thus, without addressing any other evidence in the record on this issue (including the Ugochukwu Declaration), the IJ concluded that Ojo "failed to meet his high burden of proof to show that he would be tortured in Nigeria by or with government acquiescence." Cert. Admin. R. at 52.

D. The BIA's September 27, 2019 Decision

Petitioner, appearing pro se , appealed to the BIA. He argued, inter alia , the following: (1) the "IJ's decision was based on the erroneous denial of the exception to the one-year filing deadline"; (2) the IJ erred in...