PETER UDO V. MERRICK GARLAND, No. 20-70078 (9th Cir. 2022)
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Petitioner asserted a fear of persecution or torture in Nigeria based on his status as a gay man and the harm he suffered after being discovered having sex with his boyfriend in a hotel. The immigration judge (“IJ”) found that Petitioner was not credible because he “misrepresented” the name of the hotel where he and his boyfriend were discovered. The IJ found that Petitioner failed to establish that he is gay or that he was ever harmed in Nigeria for being gay. The IJ also found that Petitioner’s asylum application was frivolous, concluding that the misrepresentation of the hotel was a material element of his application.
Petitioner appealed arguing that the agency (1) erred by failing to consider potentially dispositive evidence concerning his CAT claim; (2) violated due process in its CAT determination; and (3) erred in concluding that he had filed a frivolous asylum application.
The Ninth Circuit, granted in part, and denied in part, Petitioner’s petition for review. The court concluded that the Board erred by failing to consider potentially dispositive evidence concerning his CAT claim, thus the agency’s denial of CAT relief could not stand. The court did not reach, and therefore denied, Petitioner’s Fifth Amendment violation claims. Further, the court held that the Board erred in concluding that Petitioner had filed a frivolous asylum application, because any fabrication concerning the name of the hotel where Petitioner was discovered was not material to his claim.
Court Description: Immigration. Granting in part, and denying in part, Peter Donatus Udo’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that the Board erred in affirming an immigration judge’s frivolous asylum application determination and the denial of protection under the Convention Against Torture. Udo asserted a fear of persecution or torture in Nigeria based on his status as a gay man, and the harm he suffered after being discovering having sex with his boyfriend in a hotel. The IJ found that Udo was not credible because he “misrepresented” the name of the hotel where he and his boyfriend were discovered and because Udo was often unresponsive and inconsistent in his testimony. As a result, the IJ found that Udo failed to establish that he is gay or that he was ever harmed in Nigeria for being a gay person. The IJ also found that Udo’s asylum application was frivolous because he deliberately fabricated a material element of his asylum application—the location where Udo and his boyfriend were discovered. Before this court, Udo did not challenge the agency’s credibility determination or the denial of asylum relief. Instead, he argued that the agency (1) erred by failing to consider potentially dispositive evidence concerning his CAT claim; (2) violated due process in its CAT UDO V. GARLAND 3 determination; and (3) erred in concluding that he had filed a frivolous asylum application. The panel agreed with Udo that the Board erred by failing to consider potentially dispositive evidence concerning his CAT claim. The panel noted that the Board did not mention at all an excommunication notice from the “Council of Traditional Rulers” of Udo’s Nigerian community stating that he was subject to execution for being gay, and the Board made only fleeting reference to a collection of letters and affidavits from Udo’s family members describing in detail the attacks Udo suffered, his escape from Nigeria, and the threats Udo and his family members received after his sexuality was publicly revealed. The panel wrote that this evidence was potentially dispositive of Udo’s CAT claim because it provided the missing factual finding—that Udo was gay and persecuted on that basis. The panel wrote that Udo’s adverse credibility determination was not necessarily a death knell to his CAT claim, and that because the evidence he submitted was potentially dispositive of his claim, the agency erred by failing to give “reasoned consideration” to it. In light of its determination that the agency’s denial of CAT relief could not stand, the panel did not reach, and therefore denied the petition as to, whether the agency’s failure to consider the documentary evidence violated Udo’s Fifth Amendment due process rights in addition to immigration regulations. The panel also held that the Board erred in concluding that Udo had filed a frivolous asylum application, because any fabrication concerning the name of the hotel where Udo was discovered did not concern a material element of Udo’s asylum claim. Acknowledging that the location where Udo’s past persecution occurred could have been relevant to 4 UDO V. GARLAND the agency’s credibility determination, the panel wrote that the location of the hotel was at best ancillary to the elements Udo needed to prove to succeed on his asylum claim.
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