Oshodi v. Holder Jr.
Justia.com Opinion Summary: Petitioner, a citizen of Nigeria, petitioned for review of a decision by the BIA affirming the IJ, who made an adverse credibility determination and denied petitioner's requests for withholding of removal and relief pursuant to the CAT. The court held that the BIA sufficiently complied with the court's mandate because it considered the REAL ID Act's, Pub. L. 109-13, 119 Stat. 302, impact on the IJ's finding that petitioner's claims were not sufficiently corroborated. Even assuming that the REAL ID Act mandated notice that corroborating evidence was required, such notice was provided in this case. Therefore, the IJ's adverse credibility determination was supported by substantial evidence and petitioner's due process rights were not violated.
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The court issued a Revised version of this opinion on May 3, 2012
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 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-Appellant, v. ERIC H. HOLDER JR.,* Attorney General, Respondent-Appellee. ï£¼ ï£½ No. 08-71478 Agency No. A023-484-662 OPINION ï£¾ On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted December 10, 2009 Submission Withdrawn December 24, 2009 Resubmitted August 27, 2010 Submission Withdrawn and Deferred September 30, 2010 Resubmitted June 24, 2011 San Francisco, California Filed January 26, 2012 *Eric H. Holder Jr. is substituted for his predecessor Michael B. Mukasey as Attorney General of the United States. Fed. R. App. P. 43(c)(2). 737 738 OSHODI v. HOLDER Before: Diarmuid F. OâScannlain, and Johnnie B. Rawlinson, Circuit Judges, and Robert E. Cowen,** Senior Circuit Judge. Opinion by Judge Rawlinson **The Honorable Robert E. Cowen, Senior United States Circuit Judge for the Third Circuit, sitting by designation. 740 OSHODI v. HOLDER COUNSEL Petitioner Olakunle Oshodi is represented by Leon Fresco, Marlysha Myrthil, and Christopher Nugent (argued), Holland & Knight, LLP, Jacksonville, Florida. Respondent Attorney General Eric H. Holder Jr. is represented by Michael F. Hertz, Acting Assistant Attorney General, Civil Division; Anh-Thu P. Mai-Windle, Senior Litigation Counsel; and Imran R. Zaidi, Trial Attorney (argued), Office of Immigration Litigation, United States Department of Justice, Washington, D.C. OPINION RAWLINSON, Circuit Judge: Olakunle Oshodi petitions this court for review of a decision by the Board of Immigration Appeals (BIA) affirming the immigration judge (IJ), who made an adverse credibility determination and denied Oshodiâs requests for withholding of removal and relief pursuant to the Convention Against Torture (CAT).1 We have jurisdiction pursuant to 8 U.S.C. Â§ 1252, and we deny the petition for review. 1 Oshodi does not appeal the IJâs denial of his asylum claim. OSHODI v. HOLDER I. 741 BACKGROUND A. Oshodiâs Asylum Application Oshodi, a citizen of Nigeria, requested asylum, withholding of removal, and protection under CAT based on his fear of persecution and torture due to his religion and political opinions. In his declaration, Oshodi stated that his mother was killed in 1968 by âanti-democratic officersâ because of her political activities. When Oshodi was sixteen he joined the National Association of Nigerian Students (NANS), a group that opposed the security forces, and when he returned to Nigeria in 1981, he joined the Unity Party of Nigeria (UPN), a group that opposed the government and security forces. Oshodi described three incidents of persecution. First, Oshodi attended a rally against the government and was beaten by police, but escaped arrest. Second, in February, 1981, Oshodi and his friend drove through a police checkpoint after the police saw âpolitical propaganda.â According to Oshodi, the police shot at the car and hit Oshodiâs friend, who died eight days later. The police detained and tortured Oshodi for two days until his uncle paid for his release. Thereafter, an open warrant was issued against Oshodi for failing to report for weekly monitoring. Third, on February 17, 1981, the police arrested Oshodi after he dropped a party member off at the airport. The police drove Oshodi to an unknown location where he was âshot in the foot, burnt with cigarettes, elctric [sic] shocked, beaten with swagger canes, pistol and riffle [sic] whipped, stripped nudeâ and sodomized with âswagger canesâ and âdirty bottlesâ. After this incident, Oshodi returned to the United States. B. Professor Mitchellâs and Oshodiâs Testimony Professor Mitchell, a Nigerian expert, testified that âa member of NANS who has been in political exile and who is 742 OSHODI v. HOLDER regarded as being an opponent of the Nigerian government would likely be detained and tortured should he be returned.â Professor Mitchell noted that a member of the UPN âwouldnât have nearly the same difficulty he would be [sic] as a member of NANSâ, but that it would be âhorrificâ for Oshodi to return to Nigeria based on âthe treatment of people who have been in detention, especially who return under those circumstances under a warrant . . .â When questioned about Oshodiâs father, Professor Mitchell stated that he âcould be mistakenâ, but he believed Oshodiâs father was living in âsouthern Californiaâ. When Oshodi began to testify regarding his political involvement and the political rally he attended, the IJ told Oshodi he had read Oshodiâs application and did not need Oshodiâs testimony âline by lineâ. Oshodi then testified about his political activities, and that he believed he would âbe tortured, detained, [and] most likely killedâ if he returned to Nigeria. During cross-examination, Oshodi stated that his father was deceased, and that he signed the sworn statement stating that his father was involved in politics instead of his âgranddadâ because he was rushed. When asked about why his name was not on the deed to the Nigerian property he said was confiscated, Oshodi answered that the âdeed never transferred to [his] nameâ, but he paid taxes on the property and received income from it. On re-direct examination, Oshodi explained that he used aliases to âhide [his] identity from Nigeriansâ, and that his last name is well known in Nigeria. When questioned by the IJ, Oshodi stated that his father had been âback and forthâ from Nigeria, that he only listed three siblings on his application because âsome of [his siblings] are half brothersâ, and that Larry, his half-brother, was in court during the removal proceedings, but did not submit a statement to the court. OSHODI v. HOLDER C. 743 The IJâs and BIAâs Decisions The IJ determined that Oshodi was not credible. The IJ concluded that Oshodiâs âacknowledged use of made up false names all cast doubt upon his forthrightness.â The IJ also relied on the fact that Oshodi complained that a âsubstantial amount of his property was confiscated in Nigeriaâ, but later âadmitted that the properties were not in his name and that the deed was never transferred.â The IJ further noted that Oshodi failed âto satisfactorily explain whether his father was living or deceased.â Oshodi also stated in a sworn statement to immigration authorities that he feared harm in Nigeria because of his âdadâ, but then later testified that he said âgranddadâ and that the discrepancy was due to being rushed into signing the document without reading it. The IJ observed that there âwere also notable omissions and discrepancies between [Oshodiâs] application and his testimonyâ regarding his siblings. Namely, Oshodi only listed three out of ten siblings on his application. He attempted to explain the omission by asserting that he thought he was supposed to put full siblings on the application despite the fact that two of the three siblings were half-siblings. The IJ further noted that Oshodi âclaimed that his father had regularly come and gone from Nigeriaâ, which undermined Oshodiâs claim that âhe would be identified and detained in Nigeria because of his name.â The IJ also observed that Oshodiâs brother was sitting in court during the entire proceeding and failed to testify or submit an affidavit to corroborate Oshodiâs claims. The IJ concluded that Oshodi should have âprovid[ed] evidence that corroborat[ed his] testimonyâ and denied Oshodiâs requests for asylum, withholding of removal, and relief under the CAT.2 2 The IJ admitted a substantial amount of evidence, including the following: Oshodiâs testimony; Oshodiâs asylum application and supporting declaration; a police record from this country; a medical report; a psychiatric 744 OSHODI v. HOLDER The BIA upheld the IJâs adverse credibility determination and dismissed Oshodiâs appeal. Oshodi then petitioned this court for review, and we remanded the case to the BIA to analyze and consider: âa) the impact of the REAL ID Act on the BIAâs finding that petitionerâs claims for relief and protection were not sufficiently corroborated; b) the legislative history of the REAL ID Actâs credibility provisions, and its impact upon the immigration Judgeâs [sic] credibility determination; and c) any other issues the BIA deems appropriate to address if it chooses to permit further briefing from counsel.â On remand, the BIA concluded that the REAL ID Act codified the BIAâs corroboration requirements and that Oshodi failed to provide corroborating evidence. The BIA further considered the fact that the REAL ID Act changed the âheart of the claimâ analysis to a âtotality of the circumstancesâ analysis and found âno clear error in the Immigration Judgeâs adverse credibility finding . . .â Oshodi filed a timely petition for review. II. STANDARD OF REVIEW âThe decision that an alien has not established eligibility for asylum or withholding of removal is reviewed for substantial evidence.â Malkandi v. Holder, 576 F.3d 906, 912 (9th Cir. 2009), as amended (citation and internal quotation marks omitted). âUnder the substantial evidence standard, administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.â Id. (citation and internal quotation marks omitted). evaluation report; letters from Oshodiâs family; and country conditions reports. The IJ admitted the following evidence for identification purposes only due to a lack of authentication: Nigerian police reports; Oshodiâs 1981 hospital report; Oshodiâs motherâs 1968 death certificate; Oshodiâs real estate documents; and Oshodiâs relativesâ letters regarding his open warrant. OSHODI v. HOLDER 745 âUnder the substantial evidence standard, we may reverse a BIA credibility determination only if the evidence that the petitioner presented was so compelling that no reasonable factfinder could find that the petitioner was not credible.â Id. at 917 (citation, alteration, and internal quotation marks omitted). âWhere the BIA has reviewed the IJâs decision and incorporated portions of it as its own, we treat the incorporated parts of the IJâs decision as the BIAâs.â Id. (citation and alteration omitted). III. A. DISCUSSION The BIAâs Inquiry Upon Remand Oshodi contends that we should remand because the BIA failed to conduct an inquiry in accordance with our prior mandate. On remand, a court is âfree as to anything not foreclosed by the mandate, and, under certain circumstances, an order issued after remand may deviate from the mandate if it is not counter to the spirit of the circuit courtâs decision.â United States v. Perez, 475 F.3d 1110, 1113 (9th Cir. 2007) (citation omitted).  Addressing the first remand issue, the BIA determined that the REAL ID Act codified the BIAâs corroboration standards, which place the burden on the applicant to provide corroborative evidence when the trier of fact requires corroboration. The BIA found that the IJ was correct in concluding that Oshodi failed to meet this burden, and referenced the section of the IJâs decision that analyzed in detail all aspects of Oshodiâs claim that lacked corroborating evidence. Therefore, we conclude that the BIA sufficiently considered the REAL ID Actâs impact on the BIAâs finding that Oshodiâs claims were not sufficiently corroborated. 746 OSHODI v. HOLDER  As to the second remand issue, Oshodi is correct in noting that the BIA did not extensively examine the REAL ID Actâs legislative history; however, the BIAâs analysis did not run counter to âthe spiritâ of our mandate. See Perez, 475 F.3d at 1113. Specifically, the BIA relied on our observation in Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005), that Congress provided âclear direction to IJs that there is to be no presumption of credibility,â which means that âonly the most extraordinary circumstances will justify overturning an adverse credibility determination.â3 The BIA also relied on Don v. Gonzales, 476 F.3d 738, 741 n.4 (9th Cir. 2007), to address the fact that the REAL ID Act removed the âheart of the claimâ requirement. The BIA concluded that the changes in the REAL ID Act supported the IJâs adverse credibility finding despite the fact that some of the inconsistencies did not necessarily pertain to the âheartâ of Oshodiâs claim. We conclude that the BIA sufficiently followed the mandate. See Perez, 475 F.3d at 1113. B. The Corroborating Evidence Requirement Oshodi asserts that the IJ erred by basing his credibility determination on Oshodiâs failure to produce corroborating evidence. Oshodi contends that the REAL ID Act and due process required the IJ to give Oshodi notice that he needed to provide corroborating evidence.  We need not resolve this issue here, as the IJ provided Oshodi adequate notice.4 Oshodi was advised: 3 Oshodi places great weight on the fact that Jibril pre-dated the REAL ID Act. However, in Jibril we specifically addressed the REAL ID Act, noting that we would have been âobliged to deny Jibrilâs petitionâ if the REAL ID Act were in effect. Jibril, 423 F.3d at 1138 n.1. 4 Our recent decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011), purports to hold that the REAL ID Act requires that âan IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed OSHODI v. HOLDER 747 Put down all the reasons in detail, that you claimed to have been harmed, your fear of harm, the circumstances of it on the application. If you have corroborative evidence of your claim, I do strongly recommend that you submit it, especially under recent changes of the law and especially since you never previously applied. Iâm letting you know that corroborative evidence is recommended. Do you understand it? Even assuming that the REAL ID Act mandates notice that corroborating evidence will be required, we hold that the IJ did not err by basing his credibility determination on Oshodiâs failure to produce corroborating evidence in this case. C. The Totality of the Circumstances Standard  âUnder the REAL ID Act, in determining a petitionerâs credibility, an IJ should consider the totality of the circumstances, and all relevant factors[.]â Malkandi, 576 F.3d at 917 (citation, alteration, and internal quotation marks omitted). These factors include: the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicantâs or witnessâs account, the consistency between the applicantâs or witnessâs written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof,â id. at 1090. However, as that issue was not âpresented for reviewâ to the Ren panel, the quoted passage is dicta and need not be considered here. Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir. 2005) (en banc) (per curiam). 748 OSHODI v. HOLDER such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicantâs claim, or any other relevant factor. Id. (citation omitted).  Contrary to Oshodiâs accusation, the IJ did not rely on ârank speculation and conjecture and inconsequential factors.â Rather, the IJ considered the totality of the circumstances, including Oshodiâs use of false names; his inconsistent statements regarding his Nigerian property; his inconsistency regarding whether his father was living or deceased; his conflicting testimony regarding whether his father or âgrandadâ was involved in politics; his failure to list all ten siblings on his application; the fact that his father traveled to and from Nigeria; and his failure to provide corroborating evidence, including the fact that Oshodiâs brother was present at the removal proceedings and did not testify or submit an affidavit. We conclude that the IJâs adverse credibility determination was well supported by this substantial evidence. See Malkandi, 576 F.3d at 917, 920. D. 1. Oshodiâs Due Process Allegations Oshodiâs Testimony Oshodi asserts that the IJ prevented him from testifying about his past torture and persecution, thereby depriving him of due process.  Although the IJ interrupted Oshodi at the outset of his testimony, Oshodi continued to testify about his political activities; his fear of persecution should he return to Nigeria; his use of aliases; the notoriety of his last name; his fatherâs OSHODI v. HOLDER 749 ability to travel âback and forthâ from Nigeria; and why he only listed three siblings on his application. On crossexamination, Oshodi reiterated the facts of his asserted persecution; the fact that his father was deceased; his âgranddadâsâ involvement in politics; and his Nigerian property. Therefore, we conclude that the IJ did not prevent Oshodi from testifying. 2. Medical and Psychological Reports Oshodi argues that the IJ failed to consider the medical and psychological reports that corroborated his claims, thereby depriving him of due process. â[A]n alien attempting to establish that the [BIA] violated his right to due process by failing to consider relevant evidence must overcome the presumption that it did review the evidence.â Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000). The BIA need not ârefer to each exhibit.â Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). The BIA need only âprovide a comprehensible reason for its decision sufficient for us to conduct our review and to be assured that the petitionerâs case received individualized attention.â Id.  The IJ acknowledged that Oshodi âpresented testimonial and documentary evidence in support of his claims for reliefâ, and recognized that âthere [was] enough evidence within the record to suggest past persecution and/or a wellfounded fear of future persecution if parts of [Oshodiâs] testimony [were] to be accepted.â The IJ specifically addressed Oshodiâs claims in a twenty-page decision. Likewise, the BIA noted with approval that the IJ âprovided detailed factual findings regarding the testimony of the witnesses and the evidence presented, and that he reviewed the evidence of record as a whole.â Therefore, we conclude that Oshodi has not overcome the presumption that the BIA reviewed Oshodiâs evidence, and no due process violation occurred. See LaritaMartinez, 220 F.3d at 1095-96. 750 OSHODI v. HOLDER 3. Lack of Authentication Oshodi contends that the IJ wrongfully excluded Nigerian police reports, his 1981 hospital report, and his motherâs 1968 death certificate from the record due to lack of authentication,5 thereby depriving him of due process.  â[A]n immigration petitioner may seek to authenticate a public document by any established meansâincluding through the petitionerâs own testimony if consistent with the Federal Rules of Evidence . . .â Vatyan v. Mukasey, 508 F.3d 1179, 1181 (9th Cir. 2007). The IJ recognized that authentication is ânot necessarily limited to the regulatory framework according to Ninth Circuit decisionâ, but noted that Oshodi had not proffered âany other authentication of the materialsâ. Therefore, we determine that Oshodi failed to properly authenticate the documents by certification or by his testimony. See Vatyan, 508 F.3d at 1181. Furthermore, any error was harmless because the BIA and IJ did not rely on Oshodiâs claim of past medical treatment approximately 25 years ago or the cause of death of his mother nearly 40 years ago to assess Oshodiâs credibility. See Tucson Herpetological Society v. Salazar, 566 F.3d 870, 880 (9th Cir. 2009) (recognizing âthat the harmless error doctrine may be employed only when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of [the] decision reachedâ) (citations and internal quotation marks omitted). E. Oshodiâs CAT Claim Oshodi asserts that the BIA and IJ erred by failing to conduct a separate analysis of Oshodiâs CAT claim, including consideration of Professor Mitchellâs testimony; country con5 Oshodi represents that he was pro se when the IJ declined to admit these documents. However, Oshodiâs attorney was present when the IJ made his ruling. OSHODI v. HOLDER 751 ditions; a Nigerian newspaper article identifying Oshodi as an opponent to the current regime; and the medical and psychological reports. The standards for asylum and relief under the CAT âare distinct and should not be conflated.â Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003). Under the CAT, a â[p]etitioner must establish that it is more likely than not that he would be tortured if returned to the proposed country of removal.â Soriano v. Holder, 569 F.3d 1162, 1167 (9th Cir. 2009) (citation omitted).  The IJ specifically addressed Oshodiâs CAT claim, including a review of Professor Mitchellâs testimony and Nigeriaâs country conditions. Articulating the appropriate standard of proof, the IJ concluded that âalthough there may be a possibility of torture, [the IJ did] not find that the evidence shows that it is more likely than not.â On appeal, the BIA need only âprovide a comprehensible reason for its decision . . .â Ghaly, 58 F.3d at 1430. The BIA incorporated the IJâs findings and concluded that Oshodi did not present âany persuasive arguments on appeal as to why [the BIA] should reverse the [IJ] . . .â Therefore, we determine that the BIA decision, which incorporated the IJâs findings, provided a sufficiently comprehensible explanation for denial of relief under the CAT, with its attendant higher burden of proof. See Soriano, 569 F.3d at 1167; see also Malkandi, 576 F.3d at 917 (approving incorporation of the IJâs findings). IV. CONCLUSION The BIA sufficiently complied with our mandate because it considered the REAL ID Actâs impact on the IJâs finding that Oshodiâs claims were not sufficiently corroborated. Even assuming that the REAL ID Act mandates notice that corroborating evidence will be required, such notice was provided in this case. The IJâs adverse credibility determination was 752 OSHODI v. HOLDER supported by substantial evidence and Oshodiâs due process rights were not violated. PETITION DENIED.