Peter Udo v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER DONATUS UDO, No. 20-70078
Petitioner,
Agency No.
V. A208-309-125
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 18, 2021
San Francisco, California
Filed May 4, 2022
Before: Sidney R. Thomas and M. Margaret McKeown,
Circuit Judges, and Donald W. Molloy,* District Judge.
Opinion by Judge McKeown
* The Honorable Donald W. Molloy, United States District Judge
for the District of Montana, sitting by designation.
2 UDO V. GARLAND
SUMMARY™
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
*“ This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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.
COUNSEL
David C. Casarrubias (argued), Alexandra V. Atencio, and
Breana L. Burgos, Hanson Bridgett LLP, San Francisco,
California, for Petitioner.
Sheri R. Glaser (argued), Trial Attorney; Jonathan Robbins,
Senior Litigation Counsel; Brian Boynton, Acting Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
McKEOWN, Circuit Judge:
Peter Donatus Udo is a citizen of Nigeria who applied
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”) in the United States on
the grounds that he feared violence in Nigeria as a gay man.
Specifically, the Council of Traditional Rulers of Udo’s
community in Nigeria decreed that he was subject to “public
execution” because he was found = “practicing
homosexuality.” Although the immigration judge (“IJ”) and
the Board of Immigration Appeals (the “BIA” or the
“Board”) denied relief on the grounds that Udo was not
credible, the BIA failed to give reasoned consideration to
key evidence that was independent of Udo’s testimony,
namely the Council’s decree and a collection of letters and
UDO V. GARLAND 5
affidavits supplied by Udo’s family members. The BIA also
erred in deeming Udo’s asylum application frivolous
because any fabrication was not of a material element of
Udo’s asylum claim.
I. Background
Before the IJ, Udo testified to the following: Being gay
is a crime in Nigeria punishable by over ten years in prison.
Udo is gay. In 2015, he and his boyfriend had a clandestine
meeting at a Sheraton hotel in Ikot Ekpene, Nigeria. In the
early morning hours, a waiter delivering breakfast opened
the door without knocking to find Udo and his boyfriend
having sex. The waiter screamed and called hotel security,
which detained the couple and called a local “community
security” group to report the incident. The security group
tied Udo and his boyfriend by their hands and legs,
threatened to kill them for committing an “abomination,”
and took them away. For the next six hours, the group beat
the couple with sticks and metal rods, spit on them, threw
sand in their eyes, and yelled anti-gay slurs. The beating
caused Udo to bleed and eventually scar. Udo was taken to
a detention center from which he escaped. He then traveled
to a distant town where he was treated for his injuries at a
hospital with the help of a stranger.
After recovering, Udo contacted his mother, who told
him that the Nigerian police had come looking for him at his
home. She also told him that the leaders of his village had
asked her to turn in Udo because he had committed an
abomination and should be put to death. Udo’s mother met
him at a bus stop the next day, gave him clothes and money,
and told him to flee. Udo traveled to the United States.
Udo submitted documentary evidence to support his
application. Most important for this appeal are (1) the
6 UDO V. GARLAND
“excommunication notice” from the “Council of Traditional
Rulers” of Udo’s Nigerian community stating that he is
subject to execution for being gay, and (2) a collection of
letters and affidavits from Udo’s family members describing
in detail the attacks Udo suffered after his discovery at the
hotel, his escape from Nigeria following the incident, and the
threats Udo and his family members received from Nigerian
police and local security groups after his sexuality was
publicly revealed.
On cross-examination, the government asked Udo the
name of the hotel where he and his boyfriend were found
together. Udo testified that it was the Sheraton Hotel in Ikot
Ekpene, Nigeria. The government presented evidence that
there was no Sheraton Hotel in Ikot Ekpene. Udo explained
that he referred to the “Sheraton Hotel” instead of the
“Sinadee Hotel” because the Sheraton was a more
recognizable landmark. When the government asked Udo
why he had lied about the name of the hotel, Udo testified
that he was afraid.
The IJ found Udo not credible because Udo
“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”
and denied Udo asylum, withholding, and CAT relief. 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. The BIA adopted and affirmed
the IJ’s decision.
Udo presents us with three issues: (1) whether we should
remand Udo’s CAT claim because the BIA failed to properly
UDO V. GARLAND 7
consider potentially dispositive evidence; (2) whether the
BIA violated Udo’s due process rights in its CAT relief
determination; and (3) whether the BIA erred in determining
that Udo’s asylum claim was frivolous. Where, as here, the
Board adopts the IJ’s decision citing Matter of Burbano,
201. & N. Dec. 872 (B.LA. 1994) and provides its own
review of the evidence and law, we review the decisions of
both the BIA and the J. Aguilar Fermin vy. Barr, 958 F.3d
887, 891 (9th Cir. 2020), cert. denied, 141 S. Ct. 664 (2020).
We review the Board’s “legal conclusions de novo and its
factual findings for substantial evidence.” Bringas-
Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)
(en banc) (citations omitted).
If. The BIA erred when it failed to give reasoned
consideration to potentially dispositive evidence
related to Udo’s CAT claim.
We grant Udo’s petition for review of his CAT claim and
remand that claim to the BIA. The Board failed to give
reasoned consideration to the potentially dispositive
evidence that Udo — submitted, including the
excommunication notice and letters and affidavits from
Udo’s family members.
To be eligible for CAT relief, Udo must establish that if
removed to Nigeria, he would “more likely than not” be
tortured. Akosung v. Barr, 970 F.3d 1095, 1104 (9th Cir.
2020) (quoting 8 C.F.R. § 1208.16(c)(2)). “Torture is an
extreme form of cruel and inhuman treatment that either
(1)is not lawfully sanctioned by that country or (2) is
lawfully sanctioned by that country, but defeats the object
and purpose of CAT.” Mairena v. Barr, 917 F.3d 1119,
1125 (9th Cir. 2019) (quoting Konou v. Holder, 750 F.3d
1120, 1124 (9th Cir. 2014)). It is important to keep in mind
that the CAT standard is “distinct” from that of asylum and
8 UDO V. GARLAND
the two bases for relief “should not be conflated.”! Farah v.
Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003). Udo’s
adverse credibility determination “is not necessarily a death
knell to CAT protection” if other evidence in the record
alone establishes that he is eligible for CAT relief. Shrestha
v. Holder, 590 F.3d 1034, 1048-49 (9th Cir. 2010). In
making its CAT determination, the agency must consider
“all evidence relevant to the possibility of future torture.”
8 CFR. § 1208.16(c)(3). “In particular, where potentially
dispositive testimony and documentary evidence is
submitted, the BIA must give reasoned consideration to that
evidence.” Cole v. Holder, 659 F.3d 762, 772 (9th Cir.
2011) (emphasis added).
A. The documentary evidence was _ potentially
dispositive.
The agency predicated denial of Udo’s CAT claim on the
adverse credibility determination: Because Udo’s testimony
was not credible, the agency found that he “failed to
establish that he is gay or that he was ever harmed in Nigeria
for being a gay person.” But this finding is not supported by
substantial evidence. Instead, the “excommunication
notice” combined with his family’s letters and affidavits
leave no doubt that Udo is gay and was subjected to violent
attacks in Nigeria on the basis of his sexuality. This
documentary evidence is “potentially dispositive” to his
CAT claim. Cole, 659 F.3d at 772.
The “excommunication notice” clearly states that Udo
was “caught practicing” prohibited sexual acts including
“homosexuality, bisexual, trans-gender or any other related
' On appeal, Udo does not challenge the adverse credibility finding
or the denial of asylum relief.
UDO V. GARLAND 9
[] act”; he was “apprehended, detained for execution and he
escaped”; and he is now subject to “public execution” as a
result. The notice was issued by the “Disciplinary
Committee” of the “Council of Traditional Rulers” of the
Ukana Community to Udo’s family and signed by the
Chairman of the Disciplinary Committee, the Secretary, and
the Village Head of Ukana Ikot Otu. A copy of the notice is
included here.
10 UDO V. GARLAND
BS
COUNCIL OF TRADITIONAL RULERS UKANA
COMMUNITY.
DISCIPLINARY COMMITTEE.
Traditional rujere aecreterial,Nio 23 Ewot houslng estate icin Alnwa tbo
State Nigeria
EXCOMMUNICATION NOTICE TO LATE MR DONATUS PETER UDO
. FAMILY
In accordance to our traditional code of conduct, Your son Peter Donatus Udo has
commited an offense und section 2 paragraph ¢ which states: Thal any cliren
of the community found practicing homesexuniity, biseoual,trans-gender or any
other reloted eexval act ta subjected to public execution,
On 18 Apri 2015, Your son was cough! practicing this act and
spprohended detained for execution and he escaped.
This acl vielaiod our code of conduct bond avery cilzens of this community.
The disciplinary committed have retelved to expel and excommunicate your famay
morriners os followed: .
You ehall cease to be recognize as the citizen of this community effecthe from
today being 24th day of April 2075 pending your son PETER DONATUS UDO
exrtral for pubic: execution in sccomance bo our ler,
Signed
‘Ohuku(Obong) Eifiong Ebm Obong Gathort Limenen
a ‘ =.
`` c Edidam John 0. Asanga
Vilage Head Ukana feo! Cte.
He
UDO V. GARLAND 11
Corroborating this decree, Udo’s family members
submitted multiple letters and affidavits that detail the
violence that Udo experienced in Nigeria after he was
discovered with his boyfriend and support Udo’s claim that
he will more likely than not be tortured if he is returned. For
example, Udo’s mother submitted an affidavit stating that on
April 16, 2015, Udo “was caught by the Ikot Ekpene Police
Area command Headquarters, Nigeria for Homosexuality at
SINADEE Hotel at No: 53 Aba Road, Ikot Ekpene, Akwa
Ibom State, Nigeria,” that “local police in Nigeria are on
[his] trails,” and that the police “have been raiding [her]
house periodically thereby making life unpleasant, unsafe
and unsecured.” According to her affidavit, Udo’s mother
“was left with no other alternative than to use [her] entire
resources to mobilize him to flee Nigeria for safety and
protection.”
Similarly, Udo’s brother, Anthony Donatus Peter, wrote
that Udo “was harmed, mistreated, tortured” by “a local
security outfit for his perceived sexual orientation which is
against culture and tradition and Nigerian law which
prescribed death sentence and 14 years imprisonment” for
the offense. Compounding the family’s suffering, their
home became “a surveillance point for this Vigilante group
who want to kill [his] brother by all means.” Anthony added
that Udo’s mother had “spent her last saving [sic] to sponsor
[Udo’s] trip to United States of America” because his family
“never want him to return to Nigeria for his safety.” Udo’s
sister, Agnes Donatus Peter, wrote that on April 23, 2015,
“the police came to arrest [Udo] and fortunately he ran
away” and “he doesn’t commit any crime except
homosexuality.”
Had the agency accorded any weight to this evidence, it
could have concluded at the very least that Udo is “gay [and]
12 UDO V. GARLAND
that he was [] harmed in Nigeria for being a gay person” —
the missing factual finding upon which the agency
predicated its denial of CAT relief. Thus, the
excommunication letter and the letters and affidavits from
his family members are “potentially dispositive.” Cole,
659 F.3d at 764.
B. The agency failed to give reasoned consideration
to potentially dispositive evidence.
Confronted with this potentially dispositive evidence,
the agency failed to give it reasoned consideration. Cole,
659 F.3d at 773. Remarkably, the BIA did not reference the
excommunication notice at all in its five-page order. The
BIA mentioned Udo’s mother’s affidavit only once in its
asylum frivolousness determination, and did not otherwise
mention Udo’s family’s letters and affidavits. The IJ
acknowledged the documentary evidence in passing in her
decision, but failed to mention it at all in her discussion of
Udo’s CAT claim.
In the face of persuasive evidence, the agency’s
dismissive, fleeting reference to that evidence is insufficient
and falls far short of the agency’s obligation to give
“reasoned consideration” to the evidence. This deficiency is
underscored where, as here, “there is any indication that the
BIA did not consider all of the evidence before it.” Cole,
659 F.3d at 771-72. The key factual issues, according to the
BIA, related to whether Udo was gay and whether he was
detained, threatened with death, and beaten for his perceived
sexuality. Udo’s documentary evidence is highly probative
of both issues and contradicts the agency’s ultimate
conclusion—a strong indication that the agency “did not
consider all of the evidence before it.” /d. This is especially
true here because there is a “significant and material
disconnect” between what the evidence says and the
UDO V. GARLAND 13
agency’s “conclusions regarding [Udo’s] CAT claim.”
Parada v. Sessions, 902 F.3d 901, 915-16 (9th Cir. 2018)
(citing Cole, 659 F.3d at 771-72); see also Etemadi v.
Garland, 12 F 4th 1013, 1025 (9th Cir. 2021).
The cases cited by the Government are not to the
contrary. In Manes v. Sessions, unlike here, there was no
indication that the BIA had failed to consider all the
evidence, not in the least because the objective evidence
Manes presented—country conditions reports—had little
probative value for his particular CAT claim. 875 F.3d
1261, 1265 (9th Cir. 2017). And in contrast to Udo’s case,
in Najmabadi v. Holder, there was “no indication that the
Board failed to credit” the truth of an affidavit’s factual
allegations. 597 F.3d 983, 990 (9th Cir. 2010). The
Government’s references do not undermine our conclusion
in any way.
Because there is a strong “indication that the BIA did not
consider all of the evidence before it .. . the decision cannot
stand.” Etemadi, 12 F.4th at 1026 (quoting Cole, 659 F.3d
at 771-72).?
If. Udo’s Asylum Claim was not Frivolous.
The consequences of filing a frivolous asylum
application are severe. Noncitizens found to have
knowingly filed such applications are “permanently
2 We do not reach whether the agency’s failure to consider the
documentary evidence violated Udo’s Fifth Amendment due process
rights in addition to immigration regulations. See Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 347 (1936) (“[Courts] will not pass upon a
constitutional question although properly presented by the record, if
there is also present some other ground upon which the case may be
disposed of.”).
14 UDO V. GARLAND
ineligible for any benefits under [the Immigration and
Nationality Act]” including asylum. 8 U.S.C. § 1158(d)(6).
To find an asylum application frivolous, the agency must
make a specific finding that an alien “deliberately
fabricated” a “material element” of the application. 8 C.F.R.
§ 208.20; see also Inre Y-L-, 241. & N. Dec. 151, 162 n.1
(B.L.A. 2007). Whether a fabrication encompassed material
elements of a claim is a mixed question of fact and law that
we review de novo. See Khadka v. Holder, 618 F.3d 996,
1002 (9th Cir. 2010).
The BIA determined that Udo had deliberately fabricated
a “material element” of his asylum application, “namely, the
location of where his alleged past persecution occurred.” On
this basis, the BIA found Udo’s asylum application to be
frivolous. We disagree.
The name of the hotel where Udo and his boyfriend were
allegedly caught having sex is not a “material element” of
Udo’s asylum application. We evaluate whether a given
aspect of a petitioner’s asylum application was a “material
element” of that application by reference to the meaning of
“element,” 1.e.,“[a] constituent part of a claim that must be
proved for the claim to succeed.” Jd. at 1004 (quoting
Element, Black’s Law Dictionary (9th ed. 2009)). For Udo’s
asylum claim to succeed, he must prove that he “is unable or
unwilling to return to his home country because of a well-
founded fear of future persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion.” Bringas-Rodriguez, 850 F.3d at
1062 (quoting Navas v. INS, 217 F.3d 646, 654 (9th Cir.
2000)). Because he predicates his fear of future persecution
on allegations of past persecution, Udo “has the burden of
establishing that (1) his treatment rises to the level of
persecution; (2) the persecution was on account of one or
UDO V. GARLAND 15
more protected grounds; and (3) the persecution was
committed by the government, or by forces that the
government was unable or unwilling to control.” Guo v.
Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018) (quoting
Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir.
2010)).
We acknowledge that the location where Udo’s past
persecution occurred, be it the Sheraton Hotel or the Sinadee
Hotel, could be relevant to the agency’s credibility
determination. However, the location is at best ancillary to
these “constituent part[s] . . . that must be proved for [Udo’s
asylum application] to succeed,” and is certainly not a
“material element” of his asylum claim. Khadka, 618 F.3d
at 1004. We reverse the agency’s determination that Udo’s
asylum application was frivolous.
In doing so, we decline the Government’s invitation to
import the Supreme Court’s framework for assessing
materiality from judicial denaturalization proceedings
brought under 8 U.S.C. § 1451(a), instead of following the
Ninth Circuit’s framework in Khadka, which directly
addressed a frivolousness finding in the asylum context.
Because the Government’s proposed approach stems from a
different form of proceeding under a different statutory
framework, we follow the Ninth Circuit standard.
IV. Conclusion
We GRANT Udo’s petition for review as to his CAT
claim and as to the agency’s frivolousness determination.
We DENY Udo’s petition for review as to his due process
claim. We REMAND this case to the BIA. Udo is awarded
his costs on appeal.