Owino v. Holder
| Decision Date | 04 November 2014 |
| Docket Number | No. 12–71321.,12–71321. |
| Citation | 771 F.3d 527 |
| Parties | Sylvester Otieno OWINO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Shane H. McKenzie (argued), Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, for Petitioner.
Sheri R. Glaser (argued), Stuart F. Delery, and Ernesto H. Molina, Jr., United States Department of Justice, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A097–469–354.
Before: JEROME FARRIS and ANDREW D. HURWITZ, Circuit Judges, and PAUL L. FRIEDMAN, District Judge.*
Sylvester Otieno Owino, a native and citizen of Kenya, petitions for review of a decision of the Board of Immigration Appeals. He argues that the agency's adverse credibility finding and denial of relief under the Convention Against Torture are not supported by substantial evidence. He also contends that the agency improperly declined to admit untimely filed evidence, violated his right to confidentiality, and deprived him of due process by admitting evidence of a government authenticity investigation.
We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand to the BIA for further proceedings.
Owino was admitted to the United States on a student visa in 1998. In 2003, he was convicted in California of robbery in the second degree. The following year, the Department of Homeland Security (“DHS”) initiated removal proceedings. See8 U.S.C. §§ 1101(a)(43)(G), 1227(a)(2)(A)(iii). Owino conceded removability, but applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).
An immigration judge first held a merits hearing on Owino's application on March 6, 2006. At the hearing, Owino testified to the following:
In the mid1990s, Owino owned a bicycle repair shop in Jera, Kenya, at which political issues were often discussed. During that time, Owino openly criticized the government, advocated for women's rights, and distributed leaflets on behalf of a women's rights group. In July 1996, he was arrested by the Kenyan police in Jera, detained for ten days, and beaten.
In December 1996, following police interference with his business, he left Jera for Nairobi, where he enrolled in college and joined the track and field team, competing internationally. Owino's success attracted media attention, and, in an interview with the newspaper The Nation, he openly criticized the Kenyan police. In October 1997, Owino was arrested again and held for three weeks, during which time he was beaten and told to cease criticizing the government and associating with journalists. The police killed a detainee in his presence and warned that they would kill him, too, if he reported what he had seen; they also planted his fingerprints on a gun, threatening to use it as evidence against him if he said anything.
After being released, Owino was followed by Kamau, one of the police officers who had beaten him. The police also asked Owino's training partner about Owino. After this incident, Owino never left campus and applied to transfer to San Juan United States International University in San Diego, California.
On December 16, 1998, after receiving a student visa, Owino entered the United States. He continued communicating with Kenyan journalists and criticizing the Kenyan police. In 2002, he learned from his former training partner that Officer Kamau, who had since advanced in rank, had warned that Owino should stay in the United States.
The IJ issued a decision on April 10, 2006. Because of Owino's robbery conviction, the IJ found him ineligible for asylum, withholding of removal under the Immigration and Nationality Act (“INA”), and withholding of removal under CAT. The IJ further held that Owino was not credible and had failed to demonstrate entitlement to deferral of removal under CAT.
Owino appealed and also filed a motion seeking remand for the IJ to consider additional evidence of his torture claim. The BIA dismissed Owino's appeal after concluding that, although the IJ's adverse credibility finding was not supported by the record, (1) Owino had not satisfied his burden under CAT of showing that he likely would be tortured if returned to Kenya; (2) the new evidence should have been presented at the original hearing; and (3) Owino failed to show that he could not have presented this evidence initially.
Owino petitioned for review and we granted the petition. Owino v. Holder, 575 F.3d 956 (9th Cir.2009) (per curiam). We noted that the REAL ID Act governed Owino's case, but the agency had not applied it. Id. at 958–59. Thus, we “remand[ed] to the IJ on an open record to determine the merits of Owino's application under the REAL ID Act's standards.” Id. at 959.
On remand, Owino, represented by new counsel, modified his account of his arrests, now claiming that he had been arrested three times, not twice. Owino testified that the ten-day detention in Jera—which he previously described as having occurred in July 1996—in fact had taken place in July 1997. Owino claimed that he had been arrested in July 1996 in Jera, but that this detention had only lasted for a few days; he claimed that he had not provided details of this short detention during the initial proceedings upon the advice of his attorney. He also stated that he had been arrested in Nairobi in October 1997.
Owino also submitted new documentary evidence in support of his July 1997 arrest. First, he provided medical evidence: notes from Dr. Oketch, who treated him in Jera in July 1997, and a letter from the doctor to Eunice Akinyi, Owino's cousin. Second, Owino submitted three letters that Akinyi had obtained from the Kenyan police: (1) a September 9, 1997 letter from the Bar Ober police post, stating that Owino had been in their custody for 10 days in July 1997, (2) an October 7, 1998 letter from the Kilimani police station in Nairobi, stating that an arrest warrant for Owino was issued in May 1998, and (3) an August 20, 2009 letter from the Bar Ober police post, stating that Owino was required to report to the post. The government, however, submitted a report from a police officer at the Kilimani station denying the authenticity of the letter purportedly from that police station, and email correspondence from an investigator denying the authenticity of the Bar Ober police post letters.
Several other documents were admitted. Owino submitted a letter from one of his contacts in Kenya, Michael Nasubo, who stated that people in Kenya had read a Daily Journal article in which Owino discussed his case and that it would be dangerous for him to return to Kenya. The IJ also received in evidence the Daily Journal article and reports on conditions in Kenya.
Several witnesses testified. Owino's half-brother, Eric, testified that people in Kenya were aware of the Daily Journal article and that the police were still looking for Owino. Two State Department Foreign Service National Investigators testified via phone: Julius Norberts, regarding his investigation of the Kilimani police station letter, and Phineas Machiro, regarding his investigation of the Bar Ober letters.
The IJ was scheduled to issue her decision on September 27, 2011. On September 23, Owino moved to admit a May 1998 warrant for his arrest, from the Narok police station, and supporting declarations. The IJ denied Owino's motion. She also again denied Owino relief under CAT, finding that he was not credible and had failed to show that he likely would be tortured in Kenya.
The BIA dismissed Owino's appeal on April 23, 2012. It affirmed the IJ's denial of Owino's motion to admit additional evidence, reasoning that Owino had failed to explain the delay in submitting the evidence and that the evidence was not properly authenticated. It also affirmed the adverse credibility finding and the denial of CAT relief. Owino again petitioned for review.
When the BIA conducts its own review of the evidence and the law, this Court's review “is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (quoting Cordon–Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000)). Denial of CAT relief is reviewed for substantial evidence, Sinha v. Holder, 564 F.3d 1015, 1025 (9th Cir.2009), as are adverse credibility findings, Singh v. Holder, 643 F.3d 1178, 1180 (9th Cir.2011), and all purely factual determinations, Cordoba v. Holder, 726 F.3d 1106, 1113 (9th Cir.2013). Questions of law are reviewed de novo. Cordoba, 726 F.3d at 1113. The denial of a continuance is reviewed for abuse of discretion. Cruz Rendon v. Holder, 603 F.3d 1104, 1109 (9th Cir.2010).
Owino first challenges the agency's refusal to consider the arrest documents that he moved to submit on September 23, 2011. Under the regulations implementing CAT, an IJ must consider “all evidence relevant to the possibility of future torture.” 8 C.F.R. § 208.16(c)(3). At the same time, the regulations vest the IJ with discretion to manage the presentation of evidence, including setting deadlines for the admission of evidence. See id. § 1003.31(c). If evidence in support of a CAT claim is proffered beyond deadlines prescribed pursuant to section 1003.31(c), an IJ has discretion in deciding whether to consider it. See8 C.F.R. § 1003.29; Umezurike v. Holder, 610 F.3d 997, 1004 (7th Cir.2010); Tang v. United States Att'y Gen., 578 F.3d 1270, 1276 (11th Cir.2009); Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir.2008); Singh v. Gonzales, 495 F.3d 553, 559 n. 2 (8th Cir.2007); Hassan v. Gonzales, 403 F.3d 429, 436 (6th Cir.2005).1
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