Sylvester Owino v. Eric Holder, Jr. , 771 F.3d 527 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SYLVESTER OTIENO OWINO, No. 12-71321
Petitioner,
Agency No.
v. A097-469-354
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 11, 2014—Pasadena, California
Filed November 4, 2014
Before: Jerome Farris and Andrew D. Hurwitz, Circuit
Judges, and Paul L. Friedman, District Judge.*
Per Curiam Opinion
*
The Honorable Paul L. Friedman, District Judge for the U.S. District
Court for the District of Columbia, sitting by designation.
2 OWINO V. HOLDER
SUMMARY**
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ denial of asylum, withholding of
removal and protection under the Convention Against Torture
to a citizen of Kenya.
The panel held that the IJ abused her discretion in denying
petitioner a continuance to submit into evidence additional
arrest documents to prove past persecution because the
reasoning was based on legal error and was inconsistent with
factors set forth in An Na Peng v. Holder, 673 F.3d 1248,
1253 (9th Cir. 2012). As to the nature of the evidence
excluded, the panel held that the agency erred as a legal
matter in concluding that the arrest warrant was not properly
authenticated, as set forth in 8 C.F.R. § 287.6(b), because
that regulation provides merely one, and not the only,
method for authenticating documents. The panel concluded
that the arrest warrant had been properly authenticated by an
investigator with the Federal Defenders of San Diego
pursuant to Rule 901 of the Federal Rules of Evidence.
Addressing petitioner’s contention that a government
overseas investigation into the authenticity of certain
documents he submitted violated his regulatory right to
confidentiality, the panel held that by delivering petitioner’s
arrest documents directly to Kenyan police officers, the State
Department violated 8 C.F.R. § 208.6 under both the plain
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OWINO V. HOLDER 3
language of the regulation and as interpreted in DHS
guidance.
The panel held that petitioner’s argument that admission
of evidence from the overseas investigation violated his right
to due process was foreclosed by Angov v. Holder, 736 F.3d
1263 (9th Cir. 2013).
The panel held that in denying CAT relief the Board
failed to justify its rejection of certain evidence. The panel
also held that the record did not support the agency’s finding
of discrepancies in the medical evidence.
The panel remanded for the agency to (1) reconsider
whether a continuance should have been granted after
evaluating all of the factors set out in An Na Peng;
(2) determine whether the government’s breach of
petitioner’s right to confidentiality gives rise to a new claim
for CAT relief; and (3) reconsider its findings on petitioner’s
credibility and his original CAT claim in light of all evidence
in the record.
COUNSEL
Shane H. McKenzie (argued), Quinn Emanuel Urquhart &
Sullivan, LLP, Los Angeles, California, for Petitioner.
Sheri R. Glaser (argued), Stuart F. Delery, and Ernesto H.
Molina, Jr., United States Department of Justice, Washington,
D.C., for Respondent.
4 OWINO V. HOLDER
OPINION
PER CURIAM:
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.
I. FACTUAL AND PROCEDURAL BACKGROUND
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.
See 8 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”).
A. Owino’s Initial Testimony
An immigration judge first held a merits hearing on
Owino’s application on March 6, 2006. At the hearing,
Owino testified to the following:
OWINO V. HOLDER 5
In the mid-1990s, 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
6 OWINO V. HOLDER
partner that Officer Kamau, who had since advanced in rank,
had warned that Owino should stay in the United States.
B. The IJ’s Decision and Subsequent Appeals
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.
OWINO V. HOLDER 7
C. Proceedings on Remand
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.
8 OWINO V. HOLDER
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.
OWINO V. HOLDER 9
II. ANALYSIS
A. Standard of 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).
B. Motion for a Continuance to Admit Additional
Evidence
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. See 8 C.F.R. § 1003.29;
Umezurike v. Holder, 610 F.3d 997, 1004 (7th Cir. 2010);
10 OWINO V. HOLDER
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
In determining whether to exercise discretion to grant or
deny a continuance, “the IJ – and, on appeal, the BIA –
should consider factors including ‘(1) the nature of the
evidence excluded as a result of the denial of the continuance,
(2) the reasonableness of the immigrant’s conduct, (3) the
inconvenience to the court, and (4) the number of
continuances previously granted.’” An Na Peng v. Holder,
673 F.3d 1248, 1253 (9th Cir. 2012) (quoting Ahmed v.
Holder, 569 F.3d 1009, 1012 (9th Cir. 2009)). The BIA
abuses its discretion “when it fails to . . . show proper
consideration of all factors when weighing equities and
denying relief.” Id. (quoting Ahmed, 569 F.3d at 1014). The
agency also abuses its discretion “when it makes an error of
law.” Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.
2008).
In denying Owino’s motion to admit additional evidence,
the IJ did not address each of the An Na Peng factors. She
simply stated that Owino had failed to explain why he had not
provided the documents earlier, and that the warrant did not
appear to be properly authenticated. The BIA affirmed on the
same grounds. After carefully reviewing the record, we
conclude that this denial constitutes an abuse of discretion, as
1
Owino did not formally move for a continuance, but his “Motion to
Admit Additional Evidence” past the deadline was the equivalent of such
a motion, and the BIA analyzed it as a motion for a continuance.
OWINO V. HOLDER 11
the agency’s reasoning is based on legal error and is
inconsistent with the An Na Peng factors.
As to the nature of the evidence excluded, the BIA erred
as a legal matter in concluding that the arrest warrant was not
properly authenticated. In so concluding, the agency relied
on 8 C.F.R. § 287.6(b), which provides that an official record
of a foreign country may be admitted if it is “evidenced by an
official publication thereof, or by a copy attested by an officer
so authorized,” and is then “certified by an officer in the
Foreign Service of the United States, stationed in the foreign
country where the record is kept.” 8 C.F.R. § 287.6(b).
We have held, however, that documents submitted in
immigration proceedings “may be authenticated . . . through
any ‘recognized procedure, such as those required by
[Immigration and Naturalization Service (“INS”)] regulations
or by the Federal Rules of Civil Procedure.’” Khan v. INS,
237 F.3d 1143, 1144 (9th Cir. 2001) (per curiam) (quoting
Espinoza v. INS, 45 F.3d 308, 309–10 (9th Cir. 1995)). “The
procedure specified in ‘8 C.F.R. § 287.6 provides one, but not
the exclusive, method.’” Id. (quoting Iran v. INS, 656 F.2d
469, 472 n.8 (9th Cir. 1981)). Here, the copy of the arrest
warrant had been properly authenticated by an investigator
with the Federal Defenders of San Diego pursuant to Rule
901 of the Federal Rules of Evidence.
We also find that the agency’s statement that Owino
failed to explain why he waited to submit this evidence is
inconsistent with the record. Owino’s counsel informed the
IJ that she provided this information in response to the
government’s contention – made in proceedings between
November 2010 and May 2011 – that the previously
submitted warrant was not authentic. Although the agency
12 OWINO V. HOLDER
possibly might have found Owino’s explanation wanting, or,
in the language of An Na Peng, that his conduct was not
reasonable, its finding that no explanation was given is not
supported by the record.
We also note that other An Na Peng factors weigh in
favor of admission. The warrant evidence is critical to
Owino’s claim: As the Board itself recognized, evidence of
an arrest warrant is “central to the respondent’s claim that he
will be tortured upon return by the Kenyan police.”2 We also
note that although the IJ had initially set the deadline for
submission of evidence for July 9, 2010, she granted several
continuances to the government to present opposing evidence
between July 2010 and May 2011. By contrast, it appears
that Owino neither sought nor received any continuance
during the remand proceedings until he made his request in
September 2011.
We remand to the BIA for reconsideration in light of the
factors outlined in An Na Peng and as discussed above. We
do not reach Owino’s argument that the denial of a
continuance also denied him due process.
C. Owino’s Right to Confidentiality
We next address Owino’s claim that the agency violated
his right to confidentiality.
The INA does not prohibit the disclosure of information
contained in applicants’ asylum applications. Mindful,
2
Although the IJ found “a consistent pattern of gross, and flagrant
violations of human rights by the Kenyan police,” she denied relief
because Owino failed to show that he would be targeted.
OWINO V. HOLDER 13
however, that the public disclosure of such information could
subject an applicant to retaliatory measures in his country of
origin and endanger his relatives still residing abroad, the
Attorney General has issued regulations providing that
federal officials must, with limited exceptions, maintain in
confidence information relating to applicants’ asylum
applications. See 8 C.F.R. § 208.6; U.S. Citizenship and
Immigration Servs., Fact Sheet: Federal Regulations
Protecting the Confidentiality of Asylum Applicants 2
(June 3, 2005) (“Fact Sheet”), available at
http://www.uscis.gov/sites/default/files/USCIS/Laws/
Memoranda/Static_Files_Memoranda/Archives%201998-
2008/2005/fctsheetconf061505.pdf (last visited July 9, 2014).
Under 8 C.F.R. § 208.6:
Information contained in or pertaining to any
asylum application . . . shall not be disclosed
without the written consent of the applicant,
except as permitted by this section or at the
discretion of the Attorney General.
8 C.F.R. § 208.6(a).
When State Department investigators at the U.S. Embassy
in Nairobi investigated the arrest documents submitted by
Owino, they showed these documents to current officers at
the Bar Ober and Kilimani police stations. Owino did not
consent to this disclosure; none of the exceptions in the
regulation applies, see id. § 208.6(c); and the government
does not argue that the letters were disclosed “at the
14 OWINO V. HOLDER
discretion of the Attorney General.”3 Under the plain text of
the regulation, Owino argues, his right to confidentiality
under 8 C.F.R. § 208.6 was violated.
The government disagrees, asserting that an alien’s right
to confidentiality is violated only when (1) the government
discloses information in violation of 8 C.F.R. § 208.6, and
(2) “the information disclosed by the government was
sufficient to give rise to a reasonable inference that [the alien]
had applied for asylum.” See Lin v. United States Dep’t of
Justice, 459 F.3d 255, 264 (2d Cir. 2006). According to the
government, because the Kenyan police would not have
inferred that Owino had applied for asylum, the disclosure did
not violate Owino’s right to confidentiality. The BIA agreed.
We address the government’s construction of the regulation
before turning to the BIA’s findings.
1. 8 C.F.R. § 208.6We defer to the agency’s interpretation of its own
regulation “if the meaning of the words used is in doubt.”
Daubert v. Sullivan, 905 F.2d 266, 268 (9th Cir. 1990)
(quoting Udall v. Tallman, 380 U.S. 1, 16 (1965)). The INS
first issued guidance on this regulation in a 2001
memorandum addressed to agency personnel. See
Memorandum from Bo Cooper, INS General Counsel, to
Jeffrey Weiss, INS Director of Int’l Affairs, Confidentiality
of Asylum Applications and Overseas Verification of
Documents and Application Information (June 21, 2001)
(“Cooper Memorandum”); see also Lin, 459 F.3d at 263
3
8 C.F.R. § 208.6(c) permits disclosure in limited circumstances to U.S.
government officials and contractors, id. § 208.6(c)(1), and to federal,
state, and local courts in the United States, id. § 208.6(c)(2).
OWINO V. HOLDER 15
(noting that the Cooper Memorandum has been treated “as
the general standard for confidentiality”); Fact Sheet
(reiterating standards set forth in the Cooper Memorandum).4
The Cooper Memorandum specifies that a disclosure will
violate the regulation in the following circumstances:
[C]onfidentiality of an asylum application
is breached when information contained
therein or pertaining thereto is disclosed to a
third party, and the disclosure is of a nature
that allows the third party to link the identity
of the applicant to: (1) the fact that the
applicant has applied for asylum; (2) specific
facts or allegations pertaining to the
individual asylum claim contained in an
4
Owino has moved for judicial notice of four documents. The first three
documents – the Cooper Memorandum and the Fact Sheet referred to in
the text above, as well as a letter dated June 15, 2005 from J. Langlois,
Director of the Asylum Division, U.S. Citizenship and Immigration
Services, to all Asylum Office Directors and Deputy Directors – are
official U.S. Citizenship and Immigration Services and INS documents
setting out those agencies’ interpretation of 8 C.F.R. § 208.6. The
government does not question the documents’ authenticity, and they are
legislative facts: they do not involve the facts of this case, but rather
“have relevance to legal reasoning,” namely the proposed interpretation
of section 208.6. Fed. R. Evid. 201, 1972 advisory committee notes;
Sachs v. Republic of Austria, 737 F.3d 584, 596 n.10 (9th Cir. 2013).
Thus, we may consider them without regard to Rule 201. See Fed. R.
Evid. 201(a); Von Saher v. Norton Simon Museum of Art, 592 F.3d 954,
960 (9th Cir. 2010). The fourth document is an Amnesty International
article about conditions in Kenya. This article was published in January
2013, after the BIA’s decision in April 2012. The government does not
concede that the facts in this article are beyond dispute, and Owino has not
so demonstrated. The motion for judicial notice of this document is
denied.
16 OWINO V. HOLDER
asylum application; or (3) facts or allegations
that are sufficient to give rise to a reasonable
inference that the applicant has applied for
asylum.
Cooper Memorandum at 3–4 (emphasis added); see also Lin,
459 F.3d at 263; Fact Sheet at 3. Under this standard,
confidentiality may be breached even if a disclosure does not
give rise to a reasonable inference that the applicant has
sought asylum, so long as “the unauthorized disclosure is of
a nature that allows the third party to link the identity of the
applicant to . . . specific facts or allegations pertaining to the
individual asylum claim contained in an asylum application.”
Fact Sheet at 3.
In discussing this standard, the INS General Counsel
noted that overseas investigations of applicants’ documents
“may present unique difficulties.” Cooper Memorandum at
4. By way of example, he considered a scenario in which the
government wishes to authenticate information contained in
an applicant’s birth certificate. In this hypothetical, “the birth
certificate could be verified in a number of ways, some of
which would breach the confidentiality of the application,
while others would not.” Id. Specifically, if investigators
“provide[] the birth certificate directly to foreign government
officials for verification of its contents, this would be a
breach because the birth certificate discloses both the
applicant’s identity and information – indeed, an actual
document – contained in the asylum application.” Id.(emphasis added).5
5
As an alternative, the General Counsel suggested, investigators could
send the applicant’s name to foreign government authorities with a request
for birth record information, “if such an inquiry is routinely conducted for
OWINO V. HOLDER 17
This hypothetical is directly on point here. By delivering
Owino’s arrest documents directly to Kenyan police officers,
the State Department violated 8 C.F.R. § 208.6 under both the
plain language of the regulation and as interpreted in DHS
guidance.
A violation of the regulation does not necessarily lead to
asylum relief, however. Because 8 C.F.R. § 208.6 does not
specify any remedy for a breach, we look to the agency’s
interpretation of the regulation in discerning the proper
remedy. See Averianova v. Mukasey, 509 F.3d 890, 898 (8th
Cir. 2007) (citing Auer v. Robbins, 519 U.S. 452, 461 (1997)).
In its guidance, DHS indicates that disclosure of confidential
information may “give rise to a plausible protection claim . . .
by bringing an otherwise ineligible claimant to the attention
of the government authority or nonstate actor against which
the claimant has made allegations of mistreatment.” Fact
Sheet at 2. In such cases, a breach may give rise to “a new
and independent claim for asylum” or related relief.
Averianova, 509 F.3d at 900; see also Dayo v. Holder,
687 F.3d 653, 656–57 (5th Cir. 2012) (A violation of section
208.6 is “not a mere procedural flaw but could subject the
asylum-seeker and his family to additional risks . . . . [that
could] serve as the basis for an independent claim of asylum
or withholding of removal.”); Anim v. Mukasey, 535 F.3d
243, 256 (4th Cir. 2008) (same). We therefore remand to the
agency for consideration of whether the disclosure of
reasons unrelated to an asylum application, such as for an employment
application or a visa application.” Cooper Memorandum at 5. He
reasoned: “Such an inquiry, although it divulges the applicant’s identity,
does not disclose specific facts or allegations contained in the asylum
application, nor does it disclose facts sufficient to give rise to a reasonable
inference that the applicant has applied for asylum.” Id.18 OWINO V. HOLDER
Owino’s allegations of arrest and detention by the Kenyan
police gives rise to a new claim under CAT.6
2. The BIA’s Factual Findings
We next turn to the BIA’s determination that the
disclosure did not give rise to a reasonable inference that
Owino was seeking asylum-related relief in the United States.
Owino asserts that this conclusion was not supported by
substantial evidence, and we agree.
Prior to the disclosure in 2010, Owino’s asylum case had
been discussed in a 2009 Daily Journal article, and the
testimony of Eric Owino and the letter from Michael Nasubo
indicated that people in Kenya were aware of the article. In
light of this, Kenyan police could have interpreted inquiries
by U.S. government investigators about Owino’s arrests and
warrants as confirmation of the information in the article and
reasonably inferred that Owino had applied for asylum on the
basis of police abuse.
6
It is possible that the agency conflated the concepts of breach and
remedy when it focused on whether the disclosure would indicate that
Owino had sought asylum, as a new claim for relief is most likely to arise
in the context of retaliation against asylum seekers. See Lin, 459 F.3d at263–64 (focusing on risk that foreign government will retaliate against
asylum seekers based on their failed attempts to emigrate); Averianova,
509 F.3d at 899–900 (same). Under this theory for relief, a new claim
arises only if the disclosure indicates that the applicant was seeking
asylum-related relief in the United States. There nevertheless may be
situations when the applicant risks persecution based simply on the facts
or allegations disclosed, regardless of whether the foreign officials infer
that the applicant asserted these facts or allegations in the context of an
asylum petition.
OWINO V. HOLDER 19
The BIA instead concluded, however, that the police
would have assumed that the investigators’ inquiries related
to Owino’s employment in the United States, reasoning that
“[Owino’s] cousin went to the Kenyan police herself to
obtain information regarding his arrest record.” But in
determining that the documents were fraudulent, the agency
disbelieved the cousin’s account of how she obtained the
documents. The agency cannot assume a witness’s testimony
is false for the purpose of denying relief on one ground, then
assume that the same testimony is true for the purpose of
denying relief on another.
We find that the BIA erred in concluding that the
disclosure did not give rise to a reasonable inference that
Owino was seeking asylum in the United States.
Accordingly, we direct the agency on remand to determine
whether this indication that Owino was seeking asylum-
related relief gives rise to a new claim under CAT. See Dayo,
687 F.3d at 657; Anim, 535 F.3d at 253; Lin, 459 F.3d at267–68.
D. Admission of the Overseas Investigation Evidence
Although the rule against hearsay does not apply in
removal proceedings, both the INA and the Fifth
Amendment’s Due Process Clause require that “aliens be
given a reasonable opportunity to confront and cross-examine
witnesses.” Hernandez–Guadarrama v. Ashcroft, 394 F.3d
674, 681 (9th Cir. 2005)). The Fifth Amendment also
requires that evidence be “probative and its admission [be]
fundamentally fair.” Haile v. Holder, 658 F.3d 1122, 1128
(9th Cir. 2011) (quoting Espinoza, 45 F.3d at 310).
20 OWINO V. HOLDER
Owino asserts that his Fifth Amendment rights were
violated by the use of certain investigation evidence that falls
short of the standards articulated by our sister circuits. See
Anim, 535 F.3d at 256–59; Alexandrov v.Gonzales, 442 F.3d
395, 404–08 (6th Cir. 2006); Lin, 459 F.3d at 268–72. Owino
correctly notes that the investigation materials submitted by
the government – specifically, the Bar Ober letters and related
testimony and the letter from the Nairobi police officer – do
not satisfy the standards adopted by these circuits.
Subsequent to the briefing in this case, however, a divided
panel of this Court issued its decision in Angov v. Holder,
736 F.3d 1263 (9th Cir. 2013), expressly declining to follow
these other circuits. Owino’s due process claim is foreclosed
by Angov.7
In addition, Owino argues that the IJ deprived him of due
process by admitting his former attorney’s declaration, in
which she denied that she had advised him not to disclose his
first arrest, without affording him an opportunity to cross-
examine her. Owino failed to raise this claim to the BIA. We
therefore lack jurisdiction to consider it. Arsdi v. Holder,
659 F.3d 925, 928-29 (9th Cir. 2011); Abebe v. Mukasey,
554 F.3d 1203, 1208 (9th Cir. 2009) (en banc).
7
We recognize that a petition for rehearing en banc in Angov is
currently pending, and the mandate in that appeal has not yet issued.
Because Owino is currently detained and because he may prevail on
remand on issues wholly apart from this due process question, we decline
to wait for en banc activity to conclude in Angov to issue this decision. If
rehearing is granted, and the Angov panel opinion is vacated, the agency
should reconsider Owino’s due process claim in light of any en banc
decision that follows.
OWINO V. HOLDER 21
E. The Agency’s Inadequate Consideration of the
Evidence
An alien seeking CAT relief must show that “it is ‘more
likely than not’ that he or she would be tortured if removed.”
Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010)
(quoting 8 C.F.R. § 1208.16(c)(2)). In evaluating an
applicant’s CAT claim, the BIA must consider “all evidence
relevant to the possibility of future torture.” 8 C.F.R.
§ 208.16(c)(3); see Pirir-Boc v. Holder, 750 F.3d 1077, 1086
(9th Cir. 2014). Although the BIA “is not required ‘to
discuss each piece of evidence submitted,’” Pirir-Boc,
750 F.3d at 1086 (citation omitted), we have remanded cases
where the agency has failed to give reasoned consideration to
highly probative or potentially dispositive evidence. Id. at
1085–86. See also Cole v. Holder, 659 F.3d 762, 771–73 (9th
Cir. 2011) (remanding for consideration of expert testimony,
where agency failed to acknowledge one expert witness and
its rationale for rejecting another expert’s opinion was
“entirely unsupported by the record”); Eneh v. Holder,
601 F.3d 943, 948 (9th Cir. 2010) (remanding where there
was no indication that agency considered documentary and
testimonial evidence that prison officials would single out
petitioner for mistreatment). Owino contends that the agency
failed to adequately consider several important pieces of
evidence in support of Owino’s CAT claim, and we agree.
First, Owino submitted two documents from Dr. Oketch:
his notes from July 1997 and a letter the doctor wrote to
Owino’s cousin, Eunice Akinyi. These documents indicate
not only that Owino was injured in July 1997, but also that he
reported having been abused by the police and that this
explanation was consistent with his injuries. Although the
doctor’s letter describes a dislocated wrist, whereas his notes
22 OWINO V. HOLDER
do not, this difference is not a contradiction, and in fact the
documents are generally consistent. Further, although the IJ
was suspicious of the July 1997 date of the doctor’s notes, it
appears that she was confused about the dates of Owino’s
arrests. The medical documentation evidences Owino’s July
1997 arrest and abuse by police, and the agency inadequately
explained its decision to discount it.
The agency also inadequately explained its decision to
discount the testimony of Eric Owino, Owino’s half-brother,
who testified to Owino’s two arrests in 1997 and the fact that
police were still looking for him. The IJ stated that this
testimony “deserves little if any weight . . . in light of [Eric’s]
relationship to Respondent and [his] desire to assist him in his
efforts to avoid his removal to Kenya,” and that Eric
“exaggerated [Owino]’s political activity, asserting events
and circumstances that were never testified to by [Owino]
himself.” An IJ may not refuse to credit testimony merely
because of the witness’s relationship with the alien and
consequent interest in helping him. Cf. Ladha v. INS,
215 F.3d 889, 905 n.17 (9th Cir. 2000) (noting that
“excluding documents for being ‘self-serving’ is not a sound
practice”), overruled on other grounds by Abebe v. Mukasey,
554 F.3d 1203 (9th Cir. 2009) (en banc); Zolotukhin v.
Gonzales, 417 F.3d 1073, 1075 (9th Cir. 2005) (“Due process
principles prohibit an IJ from declining to hear relevant
testimony because of a prejudgment about the witness’s
credibility or the probative value of [the] testimony.”)
(internal quotation marks omitted). Further, Eric’s inclusion
of details not set out in Owino’s testimony is not an
inconsistency; slight differences in the recollection or
perception of different witnesses are a common occurrence.
The agency also failed to explain its decision to discount the
letter from Michael Nasubo.
OWINO V. HOLDER 23
In denying CAT relief, the agency failed to justify its
rejection of evidence indicating that Owino had been arrested
previously and is at risk of being arrested again. We remand
to the agency to consider all evidence in support of Owino’s
claim or to explain its reasons for discounting it.
F. Owino’s Credibility
Finally, Owino challenges the agency’s adverse
credibility finding. Under the REAL ID Act, credibility
determinations must be made “[c]onsidering the totality of
the circumstances[] and all relevant factors.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). The agency “may consider any
inconsistency,” though “trivial inconsistencies that under the
total circumstances have no bearing on a petitioner’s veracity
should not form the basis of an adverse credibility
determination.” Shrestha, 590 F.3d at 1043–44. The agency
must support its finding with “specific and cogent reasons.”
Id. at 1044 (quoting Malkandi v. Holder, 576 F.3d 906, 917
(9th Cir. 2009)).
In affirming the IJ’s adverse credibility determination, the
BIA relied on Owino’s submission of purportedly fraudulent
arrest documents and inconsistencies in his arrest dates and
medical records. As discussed above, we do not find that
there are any meaningful discrepancies in the medical
evidence offered in evidence. We also note that evidence
rejected by the agency may shed light on whether the arrest
documents originally submitted were genuine and whether
Owino reasonably believed them to be genuine. See
Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911–12 (9th Cir.
2004) (reversing adverse credibility determination based on
the use of one allegedly fraudulent document where nothing
in the record suggested that applicant knew that document
24 OWINO V. HOLDER
was fraudulent). On remand, the agency should reexamine its
credibility analysis in light of all the record evidence.
We also have considered Owino’s argument that the
evidence compels a positive credibility determination, and
find this argument unavailing. On remand, the agency must
revisit the question of Owino’s credibility on the basis of the
complete and accurate record, but the credibility
determination is for the IJ to make in the first instance. See
Soto-Olarte v. Holder, 555 F.3d 1089, 1093–96 (9th Cir.
2009).
III.
We grant the petition for review and remand to the BIA
to (1) reconsider whether a continuance should have been
granted after evaluating all of the factors set out in An Na
Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012);
(2) determine whether the government’s breach of Owino’s
right to confidentiality gives rise to a new claim for CAT
relief; and (3) reconsider its findings on Owino’s credibility
and his original CAT claim in light of all evidence in the
record.
PETITION GRANTED; REMANDED.