Olakunle Oshodi v. Eric H. Holder Jr. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLAKUNLE OSHODI, AKA Bode No. 08-71478
Okeowo, AKA Olakunle Akintola
Oshodi, AKA Olakunle Akintola Agency No.
Akinbayo Oshodi, AKA Isaac Oliver A023-484-662
Alger, AKA Curtis Evans, AKA
Bode Olacune Okeowo, AKA Isaac
Okeowo, OPINION
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc
December 11, 2012—Pasadena, California
Filed August 27, 2013
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
Kim McLane Wardlaw, William A. Fletcher, Ronald M.
Gould, Richard A. Paez, Johnnie B. Rawlinson, Jay S.
Bybee, Milan D. Smith, Jr., Mary H. Murguia, and
Morgan Christen, Circuit Judges.
2 OSHODI V. HOLDER
Opinion by Judge Paez;
Dissent by Chief Judge Kozinski
SUMMARY*
Immigration
The en banc court granted a petition for review of the
denial of withholding of removal and protection under the
Convention Against Torture in a case in which the petitioner
asserted that the immigration judge violated his right to due
process by limiting his testimony at his merits hearing and
then denying relief on adverse credibility grounds.
The en banc court held that applicants for asylum and
withholding of removal have a due process right to testify
fully as to the merits of their application. The en banc court
explained that the IJ’s refusal to hear petitioner’s full
testimony with respect to the abuses he suffered in Nigeria
was particularly troublesome because the denial of relief
rested solely on an adverse credibility finding, and the
limitation of testimony hampered the IJ’s ability to judge the
totality of the circumstances, including petitioner’s demeanor,
candor or responsiveness, and the consistency between
petitioner’s oral testimony with his written declaration.
The en banc court held that the IJ’s actions caused
petitioner prejudice because the outcome turned entirely upon
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OSHODI V. HOLDER 3
petitioner’s credibility. The en banc court remanded for a
new hearing before an immigration judge.
Dissenting, Chief Judge Kozinski, joined by Judges
Rawlinson and Bybee, wrote that the majority’s ruling was
wholly unnecessary because the IJ did not preclude petitioner
from testifying, and even assuming the IJ limited the
testimony, there is no due process right to give live testimony
at every administrative hearing where important property or
liberty interests are at stake. Chief Judge Kozinski also wrote
that petitioner in this case failed to demonstrate that the IJ’s
actions caused him prejudice.
COUNSEL
Marc Van Der Hout (argued) and Lisa Weissman-Ward, Van
Der Hout, Brigagliano & Nightingale, LLP, San Francisco,
California, for Petitioner.
John W. Blakeley (argued), Donald E. Keener, and Stuart F.
Delery, United States Department of Justice, Civil Division,
Washington, D.C., for Respondent.
Gwendolyn M. Ostrosky and Lawrence A. Cox, Arnold &
Porter LLP, Los Angeles, California, for Amici Curiae
Lawyer’s Committee for Civil Rights, and Center for Gender
and Refugee Studies.
Julian L. Andre and Matthew J. Smith, McDermott Will &
Emery LLP, Los Angeles, California, for Amici Curiae
National Immigrant Justice Center and American
Immigration Lawyers Association.
4 OSHODI V. HOLDER
OPINION
PAEZ, Circuit Judge:
Olakunle Oshodi petitions for review of a decision of the
Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) decision finding him not credible
and denying his application for withholding of removal and
protection under the Convention Against Torture (“CAT”).1
Oshodi argues, inter alia, that the IJ violated his due process
rights by denying him the opportunity to testify about the
events of his past persecution in Nigeria while also finding
him not credible and failing to give him notice before relying
on lack of corroboration in the adverse credibility decision.
He also argues that the IJ’s credibility analysis violated the
REAL ID Act and was not supported by substantial evidence.
A three-judge panel of this court rejected Oshodi’s due
process arguments and, reaching the merits of the IJ’s
credibility determination, concluded that it complied with the
REAL ID Act and was supported by substantial evidence.
We granted rehearing en banc.
We hold that the IJ violated Oshodi’s due process rights
at his removal hearing by cutting off his testimony on the
events of his alleged past persecution in Nigeria that are the
foundation of Oshodi’s withholding of removal and CAT
claims. The IJ’s refusal to admit Oshodi’s testimony is
particularly troublesome since Oshodi was denied relief
solely on the basis of the IJ’s adverse credibility finding. It
is well established that live testimony is critical to credibility
1
Oshodi does not challenge the denial of his asylum application as
untimely.
OSHODI V. HOLDER 5
determinations. Thus, the IJ’s restrictions on Oshodi’s
testimony precluded the IJ from conducting a proper “totality
of the circumstances” credibility analysis. Because we
conclude that Oshodi did not receive a full and fair hearing as
guaranteed by the Fifth Amendment, we grant the petition
and remand for a new hearing. We therefore do not reach
Oshodi’s other arguments.
BACKGROUND
Olakunle Oshodi, a Nigerian national, has resided in the
United States since 1981. He is married to a United States
citizen, and has a United States citizen daughter.2 He
originally entered the United States on a student visa in 1978.
In 1981, after his visa expired, Oshodi was removed to
Nigeria. He remained in Nigeria for two months and while
there he claims he was detained, beaten, and tortured by the
Nigerian authorities on at least two occasions on account of
his political activities.
In a declaration attached to his asylum application,
Oshodi stated that he was exposed to Nigerian politics, and
related persecution, at an early age through his politically
active mother. According to his declaration, on one occasion
his mother was badly burned by molotov cocktails thrown at
her by government agents. Soon after, she was killed by
officers of General Gowon, the head of state from 1966 to
2
Oshodi is ineligible for adjustment of status through these relationships
because an adjustment petition was not filed until 2005 and Oshodi
entered the United States without inspection. INA § 245(I), 8 U.S.C.
§ 1255(I).
6 OSHODI V. HOLDER
1975.3 As a teenager, he joined the National Association of
Nigerian Students (“NANS”), a political group initially
formed to oppose General Obasanjo, leader of the military
regime in power at the time and later president of Nigeria
from 1999 to 2007.4
But it was not until his return to Nigeria in 1981 that
Oshodi experienced direct persecution by the government.
As Oshodi recounted in his declaration, he reentered Nigerian
politics upon his return by joining the Unity Party of Nigeria,
a political party affiliated with NANS. At his first rally,
police officers forcefully disbanded the peaceful protest with
tear gas and swagger canes. Although Oshodi escaped, many
of his colleagues were detained and tortured. In the following
weeks, however, Oshodi experienced two incidents of severe
persecution at the hands of Nigerian officials.
On February 8, 1981, Oshodi and his colleague Doyin
Odunuga were stopped at a police checkpoint. When the
police officers saw their political propaganda, the police
immediately ordered them out of the car, at which point
Odunuga sped away. The officers shot at the car, hit
Odunuga, and the car crashed. The officers pulled Oshodi
and Odunuga out of the car and beat them. Odunuga was
eventually sent to the hospital, where he died from his
injuries eight days later. Meanwhile, Oshodi was detained in
jail and interrogated. According to Oshodi’s declaration, the
officers “tortur[ed him] with different techniques,” beat him
3
Oshodi offered his mother’s death certificate as corroborating evidence
of this claim but the IJ refused to admit it as not properly authenticated.
4
At the time of Oshodi’s hearing, General Obasanjo was campaigning
for a third term as President.
OSHODI V. HOLDER 7
unconscious with swagger canes, and deprived him of food
for two days. Ultimately, his uncle paid a bribe of $2,000 to
obtain his release but Oshodi was assigned to weekly
monitoring, the violation of which would trigger an “open
warrant” for his arrest. Because of his continued political
activity, Oshodi violated the monitoring requirement.
The following week, after driving a fellow party member
to the airport, Oshodi was pulled over and detained by five
officers. He was handcuffed, blindfolded, and driven to an
unknown location. The officers shot him in the foot, burnt
him with cigarettes, shocked him with electricity, and beat
him with their pistols. They stripped him naked and doused
him with gasoline, threatening to burn him alive. They
sodomized him with swagger canes and dirty bottles. After
they finished, the officers left him on the side of the road,
where passers-by discovered him and took him to the
hospital. At that point, Oshodi decided he could no longer
safely remain in Nigeria and fled to the United States.5
In light of these events in Nigeria, Oshodi sought asylum,
withholding of removal, and CAT relief; however, at his
removal hearing, Oshodi was precluded from testifying about
these incidents of persecution and torture. After Oshodi
began to discuss the first political rally he attended, a
precursor to the two events of severe persecution and torture
5
In addition to his declaration, Oshodi offered into evidence police
reports regarding both events of persecution and medical records from
Nigeria confirming that he suffered a gunshot wound and other injuries
after the second event. The IJ refused to admit these documents as not
properly authenticated. A forensic medical report prepared in the United
States and a newspaper article directly referring to Oshodi’s persecution
at the airport were entered into evidence but were not addressed by the
BIA in its decision.
8 OSHODI V. HOLDER
in his declaration, the IJ cut off the direct examination by his
attorney. The IJ directed Oshodi to limit his testimony to
events not discussed in his asylum application, apparently on
the notion that the declaration was sufficient for him to judge
the veracity of the events as described therein:
I’ll tell you what. I’ve read the statements of
the respondent, read his application. I’ve
gone over the materials. I’m not looking for
everything to simply be repeated. I mean I
understand that there needs to be testimony
concerning [the] application, but if you have
something to add to what was there, fine;
otherwise, I don’t need it line by line, okay?
Oshodi’s attorney followed the IJ’s directive.6 As a result,
6
We respectfully disagree with the dissent’s characterization of the IJ’s
statement as a “tame exhortation,” “encourag[ing]” Oshodi’s lawyer to
“[m]ove it along, counselor.” Dissent at 31, 32, 33. The dissent argues
that the phrase “I don’t need it line by line, okay?” somehow makes it
clear that the IJ intended to allow some repetitive testimony. Dissent at
33. Indeed, the dissent goes on to state that “[n]othing the IJ said
precluded Oshodi from giving a vivid oral account of the incidents of
persecution he allegedly suffered.” Dissent at 33. We disagree. To the
contrary, it was only when Oshodi began to give a “vivid oral account” of
his persecution that the IJ intervened in the presentation of Oshodi’s
testimony.
The IJ admonished Oshodi and his lawyer that “if you have
something to add to what was there, fine; otherwise I don’t need it line by
line, okay?” We read this statement as instructing Oshodi’s lawyer not to
elicit testimony about matters already covered in the application.
Oshodi’s lawyer clearly understood the directive in this manner as well.
Before the IJ’s directive, Oshodi’s lawyer was asking Oshodi a series of
chronological questions about Oshodi’s persecution in Nigeria. After the
OSHODI V. HOLDER 9
Oshodi did not testify about the key events of persecution and
torture that form the foundation of his claims for withholding
of removal and CAT relief.
The remainder of Oshodi’s direct testimony was devoted
mostly to clarifying a point from the expert’s testimony, that
it was his membership in the Unity Party of Nigeria, not
NANS, that led to his persecution in 1981. At one point,
Oshodi’s attorney again attempted to question him about his
encounters with the Nigerian police. As Oshodi began to
answer, the IJ interjected, “Counsel, do you have a specific
question for the respondent to answer because right now I
don’t know what he’s answering.”7 With that admonishment,
Oshodi’s counsel wrapped up his direct examination by
asking Oshodi only if he felt he would be safe if he returned
to Nigeria or if he could travel within Nigeria to escape the
persecution and torture that he feared. Without asking
Oshodi any direct questions about his encounters with the
Nigerian authorities, Oshodi’s counsel ended his
examination: “Nothing further, Your Honor. We submit on
the basis of the testimony of the respondent, as well as the
IJ intervened, Oshodi’s lawyer stopped this line of questioning and only
asked Oshodi if he had anything to say “in addition to what was already
previously submitted in [his] application and [his] statement.” Oshodi’s
lawyer plainly did not understand the IJ’s directive as merely a request for
Oshodi not to repeat himself “line by line” but rather an instruction to
elicit testimony only about events not included in the application. We
understand it in the same way.
7
The dissent takes issue with our characterization of this exchange. The
full exchange is replicated in the dissent. Dissent at 34–35. We do not
claim that this exchange alone would suggest that the IJ barred any of
Oshodi’s testimony. Rather, we note this exchange to highlight the fact
that Oshodi never actually testified to the events of his persecution.
10 OSHODI V. HOLDER
documents that are presented.” The entirety of Oshodi’s
direct examination covers fewer than ten pages of transcript.
During cross-examination, the government’s attorney
asked Oshodi several yes or no questions about the events
discussed in his declaration, but did not allow him to explain
these events:
Q: And the person who was driving sped
through the checkpoint, is that correct, at one
point?
A: My application said that.
Q: Is that true? Is that what happened?
A: Yeah, but can you ask me what happened
before that?
Q: I’ll ask the questions, please. You went to
the checkpoint, is that correct?
A: Uh-huh, that’s correct.
Q: You stopped for a bit?
A: Yes, counselor.
Q: Your person behind the wheel got scared
and sped off, is that correct?
A: No, that’s wrong.
OSHODI V. HOLDER 11
The government quickly moved on without affording Oshodi
the opportunity to elaborate on what actually happened. The
IJ had already warned Oshodi to answer the government’s
questions directly and not to “expand” on them. The
remainder of his testimony did not address the substance of
his asylum claim, but focused on peripheral issues related to
his credibility, such as the number of his siblings, his failure
to apply for asylum earlier, and his prior criminal record.
The IJ recognized that Oshodi’s application, if taken as
true, established past persecution. The IJ, however, found
Oshodi not credible—without ever hearing Oshodi testify
about the events involving his persecution—on the basis of
his use of aliases, his failure to provide the corroborating
evidence, and various inconsistencies between his testimony,
his initial credible-fear interview, and his asylum application.
On this basis, he denied Oshodi’s withholding of removal and
CAT claims. The BIA affirmed the IJ’s decision and rejected
Oshodi’s due process claim that the IJ denied him an
opportunity to testify fully in support of his application for
relief. The BIA reasoned that there was no due process
violation because, following the IJ’s directive limiting
Oshodi’s testimony, Oshodi’s attorney asked Oshodi if he had
anything to add to his written application and Oshodi briefly
testified further about additional, albeit peripheral, details of
his application.8
8
Pursuant to the parties’ stipulation, Oshodi’s initial petition for review
was remanded to the BIA for consideration of the impact of the REAL ID
Act on the corroboration and credibility issues in this case. On remand,
the BIA reaffirmed its previous decision.
12 OSHODI V. HOLDER
ANALYSIS
A.
Unlike challenges to the merits of an IJ’s decision, which
we review under the deferential substantial evidence standard,
we review de novo due process claims in removal
proceedings. See Colmenar v. INS, 210 F.3d 967, 971 (9th
Cir. 2000). It is well established that the Fifth Amendment
guarantees non-citizens due process in removal proceedings.
Id.; see also Reno v. Flores, 507 U.S. 292, 306 (1993) (citing
The Japanese Immigrant Case, 189 U.S. 86, 100–01 (1903)).
Therefore, every individual in removal proceedings is entitled
to a full and fair hearing. Colmenar, 210 F.3d at 971 (citation
omitted). A vital hallmark of a full and fair hearing is the
opportunity to present evidence and testimony on one’s
behalf. Id.; see also Vargas-Hernandez v. Gonzales, 497 F.3d
919, 926–27 (9th Cir. 2007) (“Where an alien is given a full
and fair opportunity . . . to present testimony and other
evidence in support of the application, he or she has been
provided with due process.”); Shoaira v. Ashcroft, 377 F.3d
837, 842 (8th Cir. 2004) (“For a deportation hearing to be
fair, an IJ must allow a reasonable opportunity to examine the
evidence and present witnesses.”).
Indeed, where an applicant is not represented, the IJ has
an affirmative duty to ensure that the record is fully
developed for the benefit of the applicant. Jacinto v. INS, 208
F.3d 725, 734 (9th Cir. 2000). The statutory and regulatory
regime also protects an alien’s right to present evidence and
testimony on his behalf in removal proceedings, including his
own testimony. 8 U.S.C. § 1229a(b)(4)(B) (“[T]he alien shall
have a reasonable opportunity to examine the evidence
against the alien, to present evidence on the alien’s own
OSHODI V. HOLDER 13
behalf, and to cross-examine witnesses presented by the
Government . . . .”); 8 C.F.R. § 1240.1(c) (“The immigration
judge shall receive and consider material and relevant
evidence . . . .”).
In any contested administrative hearing, admission of a
party’s testimony is particularly essential to a full and fair
hearing where credibility is a determinative factor, as it was
here. Mathews v. Eldridge, 424 U.S. 319, 343–44 (1976)
(noting that where credibility and veracity are critical to the
decision-making process “written submissions are a wholly
unsatisfactory basis for decision” (quoting Goldberg v. Kelly,
397 U.S. 254, 269 (1970))). Contrary to this essential aspect
of a full and fair hearing, Oshodi was not provided a
reasonable opportunity to present evidence on his behalf. In
particular, the IJ precluded him from providing critical
testimony about the events of persecution that are the
foundation of his withholding of removal and CAT claims.
Oshodi’s declaration relates that he was subjected to brutal
torture, including detention without food, severe beatings,
sodomy, and a gun shot to his foot. He claims that he was
stripped naked, doused with gasoline, and threatened with
being burned alive. But he testified to none of those things
because of the IJ’s directive. Instead, the testimony circled
around peripheral issues such as his relationship with his
estranged father and the number of his siblings and half-
siblings. On this record, the IJ determined that Oshodi was
not credible and thus the events related in his declaration
should be deemed not credible as well.
The importance of an asylum or withholding applicant’s
testimony cannot be overstated, and the fact that Oshodi
submitted a written declaration outlining the facts of his
persecution is no response to the IJ’s refusal to hear his
14 OSHODI V. HOLDER
testimony. An applicant’s testimony of past persecution
and/or his fear of future persecution stands at the center of his
claim and can, if credible, support an eligibility finding
without further corroboration. 8 U.S.C. § 1158(b)(1)(B)(ii);
8 C.F.R. § 1208.13(a). Every asylum and withholding
applicant is required to be examined under oath as to the
contents of his application. 8 C.F.R. § 1240.11(c)(3)(iii).
The BIA has held that it is reversible error for an IJ to
adjudicate an alien’s application for asylum and withholding
of removal without at least placing the applicant under oath
and questioning him “as to whether the information in the
written application is complete and correct.” Matter of Fefe,
20 I. & N. Dec. 116, 118 (BIA 1989). Moreover, the BIA
explained that in nearly all cases, a more in-depth oral
examination of the asylum applicant is pivotal to a fair
asylum proceeding: “In the ordinary course . . . we consider
the full examination of an applicant to be an essential aspect
of the asylum adjudication process for reasons related to
fairness to the parties and to the integrity of the asylum
process itself.” Id. The BIA stressed the importance of a full
examination in addition to a written application: “It is
difficult for an alien to satisfy [the asylum] standard unless he
presents testimony at his hearing which is consistent with and
corroborates any previous written statements in his
[application].” Id.Thus, by refusing to allow Oshodi to testify to the
contents of his written application, the IJ violated Oshodi’s
due process right to present oral testimony about the events
at the heart of his claim for withholding of removal,
testimonial evidence that the BIA has recognized is central to
the “integrity of the asylum process itself.” Id. The
foregoing was precisely our holding in Colmenar, 210 F.3d
OSHODI V. HOLDER 15
at 971–72. In that case, as in this one, the IJ “refused to let
Colmenar testify about anything that was included in his
written application.” Id. at 971. We held that the “IJ’s
conduct was directly contrary to the BIA’s decision in Matter
of Fefe” and found that the IJ improperly precluded Colmenar
from presenting evidence on his behalf, in violation of due
process. Id. at 971–72.
We similarly found a due process violation in Zolotukhin
v. Gonzales, 417 F.3d 1073, 1075–76 (9th Cir. 2005), where
the IJ “den[ied] Zolotukhin a full and fair opportunity to
present evidence on his behalf” by cutting off Zolotukhin’s
testimony about his family’s past persecution in Russia and
refusing to admit testimony of family members and an expert.
On other occasions, we have found a due process violation
where the IJ did not exclude any of the applicant’s
testimony—which, as established above, has special
significance—but excluded other expert or corroborating
testimony. See Lopez-Umanzor v. Gonzales, 405 F.3d 1049,
1057–58 (9th Cir. 2005) (holding that the IJ’s refusal to hear
petitioner’s experts’ testimony violated due process); Kaur v.
Ashcroft, 388 F.3d 734, 737–38 (9th Cir. 2004) (holding that
the IJ’s exclusion of petitioner’s son’s testimony violated due
process). The critical question is “[w]hether the IJ’s actions
prevented the introduction of significant testimony.” Lopez-
Umanzor, 405 F.3d at 1056. The answer here is clearly yes.9
9
Nothing in our decision curtails the IJ’s ordinary discretion to limit
testimony in order to “focus the proceedings and exclude irrelevant
evidence.” Kerciku v. INS, 314 F.3d 913, 918 (7th Cir. 2003). The IJ
simply cannot do so in a wholesale manner that precludes the applicant
from fully and fairly testifying as to the contents of his application.
16 OSHODI V. HOLDER
The basic premise that applicants for asylum and
withholding of removal have a due process right to testify
fully as to the merits of their application is not unique to our
circuit. In Kerciku v. INS, 314 F.3d 913, 918 (7th Cir. 2003)
(per curiam), the Seventh Circuit made clear that when the IJ
“bar[s] complete chunks of oral testimony that would support
the applicant’s claims,” he violates the applicant’s due
process rights. See also Rodriguez Galicia v. Gonzales, 422
F.3d 529, 539–40 (7th Cir. 2005) (concluding that the
applicant was denied due process when the IJ not only
repeatedly interrupted the applicant during her testimony but
also prevented her from presenting expert testimony); Podio
v. INS, 153 F.3d 506, 510–11 (7th Cir. 1998) (holding that the
IJ violated applicant’s due process rights by refusing to allow
him to testify fully and excluding corroborating testimony).10
In Kerciku, the IJ cut off Kerciku’s direct testimony after he
had testified only to a few peripheral issues. Thus, the IJ
improperly “bar[red] complete chunks of [his] oral
testimony.” 314 F.3d at 918. This was true even though
Kerciku filed a written application outlining his asylum claim
in detail. Id. at 915–16. By barring any testimony repetitive
of Oshodi’s written application, the IJ improperly “bar[red]
complete chunks of [his] oral testimony” that would have
supported his claim. See id. at 918.
The IJ’s refusal to hear Oshodi’s full testimony with
respect to the abuses he suffered in Nigeria is particularly
10
The Third Circuit reached a similar conclusion in a case where the IJ
improperly excluded evidence during a removal proceeding. See Cham
v. Att’y Gen., 445 F.3d 683, 694 (3d. Cir. 2006) (holding that the IJ denied
applicant due process because, inter alia, he refused to consider
corroborating evidence and refused to continue the hearing in order to
allow the testimony of additional witnesses).
OSHODI V. HOLDER 17
unacceptable given that the basis for the IJ’s denial of relief
rested solely on an adverse credibility finding. In making a
credibility determination, the IJ is to consider the “totality of
the circumstances,” including:
[T]he demeanor, candor, or responsiveness of
the applicant or witness, the inherent
plausibility of the applicant’s or witness’s
account, the consistency between the
applicant’s or witness’s 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 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 applicant’s claim, or any other relevant
factor.
8 U.S.C. § 1158(b)(1)(B)(iii). Where, as here, the IJ does not
allow the applicant to testify fully as to the merits of his
application, the IJ’s ability to make a credibility
determination based on the above factors is severely
hampered. The IJ did not have the opportunity to judge
Oshodi’s “demeanor, candor, or responsiveness” while
testifying about the events of persecution and torture that he
experienced, nor did the IJ have the ability to compare for
consistency his oral presentation of those events to the way he
described them in his written declaration. See id.18 OSHODI V. HOLDER
The importance of live testimony to a credibility
determination is well recognized and longstanding. See, e.g.,
United States v. Thoms, 684 F.3d 893, 903 (9th Cir. 2012)
(“The longstanding and repeated invocations in caselaw of
the need of district courts to hear live testimony so as to
further the accuracy and integrity of the factfinding process
are not mere platitudes. Rather, live testimony is the bedrock
of the search for truth in our judicial system.”); United States
v. Mejia, 69 F.3d 309, 315 (9th Cir. 1995) (“There can be no
doubt that seeing a witness testify live assists the finder of
fact in evaluating the witness’s credibility.”); see also United
States v. 1998 BMW “I” Convertible, 235 F.3d 397, 400 (8th
Cir. 2000) (“[J]udges simply cannot decide whether a witness
is telling the truth on the basis of a paper record and must
observe the witnesses’ demeanor to best ascertain their
veracity—or lack thereof.”). Precisely because of the
importance of live testimony to credibility determinations, we
have held, as a matter of constitutional due process, that when
a magistrate judge makes a report and recommendation on a
motion to suppress evidence, the district judge may not reject
the magistrate judge’s credibility findings without conducting
his own evidentiary hearing. United States v. Ridgway, 300
F.3d 1153, 1157 (9th Cir. 2002). We also applied this rule to
magistrate judges’ credibility determinations in habeas
Batson claims. Johnson v. Finn, 665 F.3d 1063, 1075–76
(9th Cir. 2011). In so holding, we explained that this
requirement ensures that any factual determination “will be
the result of first-hand observations of witnesses and
evidence.” Id. at 1072.
Indeed, the rationale behind the substantial deference we
give to agency credibility determinations is that IJs “are in the
best position to assess demeanor and other credibility cues
that we cannot readily access on review.” Shrestha v. Holder,
OSHODI V. HOLDER 19
590 F.3d 1034, 1041 (9th Cir. 2010); see also H.R. Rep. No.
109-72, at 167 (Conf. Rep. on REAL ID Act of 2005) (“An
immigration judge alone is in a position to observe an alien’s
tone and demeanor, to explore inconsistencies in testimony,
and to apply workable and consistent standards in the
evaluation of testimonial evidence. He [or she] is, by virtue
of his [or her] acquired skill, uniquely qualified to decide
whether an alien’s testimony has about it the ring of truth.”
(quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th
Cir. 1985))). We defer to a trial court’s credibility
determinations for the same reason. See Anderson v.
Bessemer City, 470 U.S. 564, 575 (1985) (“When findings are
based on determinations regarding the credibility of
witnesses, Rule 52(a) demands even greater deference to the
trial court’s findings; for only the trial judge can be aware of
the variations in demeanor and tone of voice that bear so
heavily on the listener’s understanding of and belief in what
is said.”).11
In light of the foregoing, it makes sense that the only
exception the BIA has recognized to its general rule that an
applicant for asylum or withholding of removal should be
11
The dissent faults our reliance on Anderson, claiming that it does not
stand “for the proposition that special deference is owed a trial court’s
credibility determination because it is best able to evaluate demeanor
during live testimony” but rather stands for the “contrary position.”
Dissent at 44. We recognize that the Court stated that “the rationale for
deference to the original finder of fact is not limited to the superiority of
the trial judge’s position to make determinations of credibility.” Anderson,
470 U.S. at 574 (emphasis added). True enough. But it then said that
appellate courts owe “even greater deference” when findings are based on
credibility determinations. Id. at 575. Try as it might, the dissent simply
cannot refute the clear and repeated holdings of the Court that live
testimony is critical to credibility matters. Anderson’s indication that we
owe deference to trial courts for other reasons is of no consequence.
20 OSHODI V. HOLDER
fully examined on his application is when both parties
stipulate that the testimony would be both consistent with the
written statement and believable. Matter of Fefe, 20 I. & N.
Dec. at 118. There was no such stipulation in this case, and
the IJ did not find Oshodi’s declaration believable.
By precluding Oshodi from testifying about the critical
events in his application, the IJ short-circuited his ability to
judge accurately Oshodi’s credibility. To do so properly, he
must consider the “totality of the circumstances,” yet here,
the IJ restricted the evidence, especially the evidence most
relevant to credibility, such as demeanor and the consistency
of testimony. Without hearing Oshodi’s testimony about the
persecution he suffered in Nigeria, and judging his demeanor
and consistency during that testimony, the IJ determined that
Oshodi was not credible and therefore that the contents of
Oshodi’s written declaration should not be credited. In doing
so, the IJ improperly “prejudg[ed] . . . the [] ‘credibility or the
probative value’” of that testimony. Lopez-Umanzor, 405
F.3d at 1056 (quoting Kaur, 388 F.3d at 737).
In Shrestha, we held that “an IJ [must] not cherry pick
solely facts favoring an adverse credibility determination
while ignoring facts that undermine that result.” 590 F.3d at
1040. Here, however, the IJ paid little heed to the principle
recognized in Shrestha. Although the IJ had the benefit of the
government’s cross-examination of Oshodi regarding the
alleged inconsistencies in his application and other factors
weighing against his credibility, the IJ did not have the
benefit of Oshodi’s testimony regarding the central events
underlying his application. The IJ was unable to judge
Oshodi’s demeanor and the nature of his testimony while he
testified about the events of his persecution, the veracity of
which were critical to the merits of his application. The IJ
OSHODI V. HOLDER 21
cannot avoid considering all relevant factors and evidence in
making a credibility determination by refusing to hear
significant evidence in the first place. See id. (“[An] IJ
cannot selectively examine evidence in determining
credibility, but must present a reasoned analysis of the
evidence as a whole.” (quoting Hanaj v. Gonzales, 446 F.3d
694, 700 (7th Cir. 2006))).
Despite the forgoing, the BIA rejected Oshodi’s due
process claim because, after the IJ’s directive not to testify to
the contents of his declaration, Oshodi’s attorney asked him
if he had anything further to add, and Oshodi testified to a
few additional details. Oshodi’s attorney, however, phrased
his questions to Oshodi to comply with the IJ’s directive and
avoided eliciting testimony regarding the events discussed in
his application: “Is there anything that you would like to add
in addition to what was already previously submitted in your
asylum application and your statement that you submitted to
the Court?” In response, Oshodi reasonably avoided
testifying about the events described in his application and
used that opportunity only to clarify a detail discussed in his
expert witness’s testimony. At no point did the IJ modify or
reconsider his earlier directive and affirmatively allow
Oshodi to testify about the contents of his application.
Thus, although Oshodi’s attorney elicited some additional
testimony outside the scope of the restrictions imposed by the
IJ, Oshodi was still precluded from testifying about the events
described in his application. The end result of the IJ’s
restriction on Oshodi’s testimony was that it “prevented the
introduction of significant testimony,” Lopez-Umanzor, 405
F.3d at 1056, that was critical to the merits of his application.
In Colmenar, which presented a very similar factual scenario,
we rejected the BIA’s reasoning in this case. 210 F.3d at 972.
22 OSHODI V. HOLDER
The IJ cut off Colmenar’s direct testimony but, at the close of
his testimony, the government attorney and IJ asked him if he
had anything to add. Id. We found those cursory questions
insufficient to cure the IJ’s previous refusal to allow
Colmenar to testify to the contents of his written application.
Id. That Oshodi testified to some facts regarding his
application after the IJ’s instruction does not cure the IJ’s
refusal to admit testimony on the most significant events
underlying Oshodi’s withholding of removal and CAT
claims—testimony which was critical to the IJ’s credibility
analysis.
B.
The dissent faults our due process analysis for failing to
begin by conducting the balancing test outlined in Mathews
v. Eldridge. The dissent, however, skips over the fact that our
circuit, as well as other circuits, has already determined that
a due process right to present oral testimony in asylum cases
exists, especially in cases that hinge on credibility. See, e.g.,
Colmenar, 210 F.3d at 971–72; Kerciku v. INS, 314 F.3d at
918. Nonetheless, a Mathews analysis only supports our
conclusion. Under Mathews, we determine what process is
due by balancing (1) the private interest at stake, (2) “the risk
of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of
additional . . . safeguards,” and (3) the government’s interest,
including the burdens of any additional process. 424 U.S. at
335.
The first factor weighs heavily in Oshodi’s favor. We
have consistently recognized that deportation is a
“particularly severe penalty.” Padilla v. Kentucky, 130 S. Ct.
1473, 1481 (2010) (internal quotation marks omitted); see
OSHODI V. HOLDER 23
also Landon v. Plascencia, 459 U.S. 21, 34 (1982)
(“Plasencia’s interest here is, without question, a weighty
one. She stands to lose the right to stay and live and work in
this land of freedom. Further, she may lose the right to rejoin
her immediate family, a right that ranks high among the
interests of the individual.”) (internal quotation marks and
citation omitted). In the case of an asylum and withholding
of removal applicant, the private interest could hardly be
greater. If the court errs, the consequences for the applicant
could be severe persecution, torture, or even death. INS v.
Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (“Deportation is
always a harsh measure; it is all the more replete with danger
when the alien makes a claim that he or she will be subject to
death or persecution if forced to return to his or her home
country.”).
The second factor in the Mathews balancing test is the
adequacy of the challenged procedure: in this case, the denial
of an asylum applicant’s ability to testify about the contents
of his asylum and withholding application when the merits of
his case hinges on his credibility. This factor also weighs in
Oshodi’s favor. The dissent relies heavily upon FDIC v.
Mallen, 486 U.S. 230 (1988), to support its argument that oral
testimony was not required in this case. Dissent at 37–39.
Mallen, however, is entirely consistent with our holding that
due process entails a right to present oral testimony in asylum
and withholding cases that turn on credibility determinations.
In Mallen, the plaintiff brought a due process challenge to a
statute that did not provide for an unfettered right to oral
testimony in a different setting altogether, a post-suspension
hearing on an FDIC decision to suspend from office an
indicted official of a federally insured bank. Id. at 232. In
rejecting the challenge, the Court explicitly assumed that due
process would sometimes require oral testimony:
24 OSHODI V. HOLDER
[W]e may assume that there are
post-suspension proceedings under § 1818(g)
in which oral testimony is essential to enable
the hearing officer to make a fair appraisal of
the impact of a suspended officer’s continued
service on the bank’s security and reputation.
Id. at 247. The Court rejected the facial challenge to the
statute on the narrow ground that the hearing officer should
have been given the opportunity to decide whether to hear
oral testimony in that case. Id. The Court concluded that the
officer may have decided to hear the testimony, or may have
properly rejected it as unnecessary under the circumstances
of that case. Id.
We agree that Mallen stands for the proposition that oral
testimony is not always required in administrative
proceedings. Id. at 247–48; Dissent at 39. But such an
unsurprising holding is of little consequence here. Indeed,
this proposition is established by Mathews. 424 U.S. at 349.
Mallen also unremarkably suggests that, in some
administrative proceedings and under certain circumstances,
the fact that the material was “adequately covered by the
written submissions” might be a valid reason for denying oral
testimony. 486 U.S. at 247. But Mallen also stands for the
proposition that, in some cases, due process likely requires
the admission of oral testimony. Id. It is our task, under
Mathews, to determine what process is due in an asylum and
withholding hearing, where credibility is a paramount
consideration. The Court’s holding that oral testimony may
not be required in every post-suspension hearing of a bank
official is not at all inconsistent with our holding today that
due process requires the admission of oral testimony in an
OSHODI V. HOLDER 25
asylum and withholding hearing wherein the applicant’s
eligibility for relief turns on his credibility.
In determining whether oral testimony should be required
in any particular case, we must consider “the risk of an
erroneous deprivation of [the private interest] through the
procedures used, and the probable value, if any, of
additional . . . safeguards.” Mathews, 424 U.S. at 335.
Mathews provides guidance for when oral testimony is
valuable under this prong: the touchstone is, unsurprisingly,
the importance of credibility determinations to the type of
case presented. In Matthews, the Court explained that an
evidentiary hearing complete with oral testimony was not
required before the termination of disability benefits because
such cases primarily turn on “routine, standard, and unbiased
medical reports by physician specialists” and, therefore,
ordinarily “the specter of questionable credibility and veracity
is not present.” Id. at 344 (internal quotation marks
omitted).12 Credibility was the key distinction between
Mathews and Goldberg, a case where the Court found that
due process required an evidentiary hearing and the
admission of oral testimony before welfare benefits could be
terminated. Mathews explained:
12
The administrative procedure in Mathews granted disability candidates
the right to a full evidentiary hearing post-termination of disability
benefits. 424 U.S. at 339. Eldridge’s claim was that due process required
an evidentiary hearing before the government terminated benefits even
where there was a right to a post-deprivation evidentiary hearing. The
framework also allowed for retroactive benefits in cases where the
disability recipient proved continuing eligibility for benefits at the
evidentiary hearing or at any later stage in the review proceedings. Id. If
Oshodi is removed, he will have no further opportunity to challenge the
IJ’s determination.
26 OSHODI V. HOLDER
Central to the evaluation of any administrative
process is the nature of the relevant
inquiry. . . . In the [welfare cases], a wide
variety of information may be deemed
relevant, and issues of witness credibility and
veracity often are critical to the
decisionmaking process. Goldberg noted that
in such circumstances “written submissions
are a wholly unsatisfactory basis for
decision.”
Mathews, 424 U.S. at 343–44 (quoting Goldberg, 397 U.S. at
269). Therefore, Mathews teaches us that cases that hinge on
credibility are precisely the types of cases where the probable
value of oral testimony is high and the lack of oral testimony
significantly raises the risk of an erroneous decision.13
Therefore, the second Mathews factor weighs in favor of
requiring oral testimony in asylum cases, which often turn
solely on credibility determinations.14
13
The dissent cites to Mackey v. Montrym, 443 U.S. 1 (1979) to suggest
that this is “a lesson the Supreme Court has not yet learned.” Dissent at
43. But Mackey was a case about whether a state was required to provide
for a pre-deprivation hearing before suspending an individual’s driver’s
license. The statutory scheme gave the individual the right to a full
evidentiary hearing post-deprivation. Thus, it does not at all address
whether an individual has a right to live testimony in cases involving
credibility determinations. Indeed, the Court recognized that an
evidentiary hearing, although post-deprivation, would be the “necessary”
place to “resolve questions of credibility or conflicts in the evidence.” Id.
at 15.
14
The dissent argues that, in determining credibility, “the ability to
present live direct testimony during a removal proceeding strikes [the
dissent] as relatively unimportant,” and bases the second factor analysis
on that proposition. Dissent at 45. Although it may strike the dissent as
OSHODI V. HOLDER 27
The final Mathews factor requires us to consider the
burdens our holding may place on the administrative process.
The burden here is minimal since we only require that IJs
follow the governing rules and regulations. As discussed
above, Matter of Fefe requires testimony by an asylum
applicant in each case and requires “the full examination of
an applicant” except in the exceptional case where the parties
stipulate that “the applicant’s testimony would be entirely
consistent with the written materials and that the oral
statement would be believably presented.” 20 I. & N. Dec. at
118. In short, we require no process that the government has
not already imposed on itself.
In sum, we conclude that a Mathews analysis clearly
supports our conclusion that due process entails the right to
present oral testimony in asylum and withholding cases that
turn upon an applicant’s credibility.
relatively unimportant, the importance of live testimony is well-
established in Supreme Court and Ninth Circuit jurisprudence, supra
18–20, 26–27. Indeed, we accord IJs significant deference based, at least
in part, upon the assumption that the ability to observe live testimony
matters a great deal, supra 18–19.
The dissent also cites Apouviepseakoda v. Gonzales, 475 F.3d 881,
897 (7th Cir. 2007) (Posner, J., dissenting), wherein Judge Posner, in
dissent, questioned the value of live testimony to credibility
determinations where such testimony is presented through an interpreter.
Dissent at 46. Judge Posner’s views, regardless of their merit, are not
relevant here where there was no interpreter. We doubt that Judge
Posner’s critique applies not only to those who testify through interpreters
but also to those who “simply grew up in a different culture.” Dissent at
46–47. The possible cultural obstacles the dissent cites are not an excuse
for depriving petitioners the right to present their own story in their own
words. Because Oshodi testified in English, and not through an
interpreter, the views of Judge Posner, as echoed by the dissent, are of no
import here.
28 OSHODI V. HOLDER
C.
To prevail on his due process claim, Oshodi must also
show prejudice. Colmenar, 210 F.3d at 971. To show
prejudice Oshodi need only demonstrate “that the outcome of
the proceeding may have been affected by the alleged
violation.” Zolotukhin, 417 F.3d at 1076 (emphasis in
original) (quoting Lopez-Umanzor, 405 F.3d at 1058). Here,
the outcome turned entirely on Oshodi’s credibility. The IJ
recognized that Oshodi’s application, if believed,
demonstrated past persecution. Given the importance of an
applicant’s live testimony to an IJ’s credibility determination,
supra, it follows that the IJ’s failure to allow Oshodi to testify
about the persecution he described in his application may
have influenced his adverse credibility decision. Oshodi’s
“testimony could have been so compelling and consistent that
it would have altered the judge’s initial credibility
determination.” Kerciku, 314 F.3d at 919.
A finding of prejudice is further supported by a close
examination of the IJ’s decision in this case. The IJ’s
decision relied heavily on Oshodi’s testimony and gave little
to no credence to the contents of his declaration. He
dedicates three full pages to outlining all of Oshodi’s
testimony, which primarily consisted of the government’s
cross-examination. With respect to the two primary events of
past persecution at the foundation of Oshodi’s claim, the IJ
devoted one paragraph. Moreover, the IJ appears to have
minimized the importance of these events to Oshodi’s claim
because he testified to them only briefly: “The respondent
testified briefly about two other incidents that involved
persecution by Nigerian officials.” Of course, the reason
Oshodi only testified briefly about these events was that the
IJ instructed him not to testify about them at all. The IJ also
OSHODI V. HOLDER 29
incorrectly discredited these events because “[t]he respondent
failed to include these incidents on his application for asylum,
but submitted into evidence a separate affidavit describing
each in some detail.” In fact, Oshodi did mention both of
these events with some specificity in his application and then
refers the reader to an attached declaration discussing the
events in even greater detail. Because the IJ cut off Oshodi’s
testimony early in the hearing, the only evidence of the
significant events of past persecution was in his application
and attached declaration. The IJ, however, gave that evidence
little weight, focusing instead on the content of Oshodi’s
limited testimony. On this record, Oshodi has clearly met his
burden to demonstrate that his inability to fully testify may
have affected the outcome of his case. See Zolotukhin, 417
F.3d at 1076.15
15
The dissent merely repeats the IJ’s credibility determination and then
concludes that Oshodi cannot prevail under the prejudice prong because
the IJ’s credibility determination was, the dissent believes, well-supported.
Because the IJ will have to conduct a new hearing, we do not reach the
merits of the credibility finding. We note, however, that the credibility
determination is not as ironclad as the dissent suggests. We observe that
the credibility finding was based exclusively on the purported
inconsistencies in Oshodi’s testimony and gave no weight to significant
corroborating evidence that went to the heart of his claim, in particular a
newspaper article discussing Oshodi and a medical report describing
fourteen separate scars or chronic conditions he suffers from that are
consistent with his story. Instead, the IJ found a lack of credibility without
considering that evidence and then discounted the evidence because of the
credibility finding. On remand, the IJ must consider the totality of the
circumstances, including the “consistency of [Oshodi’s] statements with
other evidence of record” when determining credibility. 8 U.S.C.
§ 1158(b)(1)(B)(iii). As we have explained, “an IJ cannot selectively
examine evidence in determining credibility, but must present a reasoned
analysis of the evidence as a whole.” Shrestha v. Holder, 590 F.3d 1034,
1040 (9th Cir. 2009).
30 OSHODI V. HOLDER
CONCLUSION
As we stated in Colmenar, “[w]e do not enjoy second-
guessing the way Immigration Judges run their courtrooms,”
but it is imperative that asylum and withholding claims are
heard “fully and fairly” before we make a judgment on the
merits. 210 F.3d at 973. “This is consistent with our role as
judges, and the values of our Constitution demand no less.”
Id. We reaffirm our holding, and the BIA’s own rule, that an
applicant’s oral testimony is “an essential aspect of the
asylum adjudication process” and the refusal to hear that
testimony is a violation of due process. Matter of Fefe, 20 I.
& N. Dec. at 118; see also Colmenar, 210 F.3d at 972. The
petition for review is granted and the case is remanded for a
new hearing before an IJ.
PETITION GRANTED in part and REMANDED.
Chief Judge KOZINSKI, with whom Judges RAWLINSON
and BYBEE join, dissenting:
The majority today holds that aliens seeking asylum have
a constitutional right “to testify fully as to the merits of their
application.” Maj. op. 16. But constitutional rights, once
created, are not easily cabined: If would-be immigrants have
a right to testify without limitation in support of their claims,
Unlike the dissent, we do not presume to decide that an IJ, once
noting some inconsistencies in the record, could not still find an applicant
credible based on persuasive testimony. It is not inconceivable that a man
with a criminal background could also face severe persecution in his home
country.
OSHODI V. HOLDER 31
so do untold millions of citizens whose vital interests are at
stake in administrative proceedings. Which is doubtless why
the Supreme Court has rejected the existence of any such
right. Today’s ruling is, in any event, wholly unnecessary
because the IJ in this case didn’t preclude petitioner from
testifying. The majority manufactures this constitutional
melodrama out of whole cloth.
Oshodi submitted copious written materials in support of
his asylum application, including medical reports, letters from
family and a declaration describing brutal encounters with
Nigerian police. At an oral hearing, he called an expert
witness, testified under the direction of his lawyer and had a
chance to explain adverse evidence offered by the
government. The IJ didn’t believe him and explained why:
Oshodi’s long history of lying about his identity and the
numerous inconsistencies in his testimony. See Appendix.
This careful and detailed credibility finding is solid as a rock;
we have absolutely no business reversing it.
1. First things first: The IJ didn’t preclude Oshodi from
testifying. The majority focuses on a fleeting exchange that
took place shortly after Oshodi began his direct examination.
Oshodi opened with biographical details, such as his
education in Nigeria and his involvement in politics as a
student. Impatient that Oshodi’s lawyer was lingering over
background material, the IJ encouraged him to cut to the
chase:
I’ve read the statements of the respondent,
read his application. I’ve gone over the
materials. I’m not looking for everything to
simply be repeated. I mean I understand that
there needs to be testimony concerning [the]
32 OSHODI V. HOLDER
application, but if you have something to add
to what was there, fine; otherwise, I don’t
need it line by line, okay?
Based on this and nothing more, the majority claims that
the judge “cut off the direct examination” and “refus[ed] to
hear Oshodi’s full testimony with respect to the abuses he
suffered in Nigeria.” Maj. op. 8, 16. The majority intones
this mantra at least twenty-five times, as if repeating the
accusation will make it stick. Maj. op. 4, 5, 7, 8, 9, 11, 13,
14, 15, 16, 17, 20, 21, 22, 28, 29. But if immigration judges
(and other judges too, presumably) are constitutionally
prohibited from uttering even such tame exhortations, then
trials and hearings will become Wagnerian operas where
every litigant can hold center stage until the cows come
home.
Judicial time and attention are limited, and feedback
about what’s going on in the judicial mind is helpful. The
IJ’s statement was no different from what we say to counsel
hundreds of times every year: “We’ve read the briefs, so
there’s no need to recite the facts,” or “We understand your
position on the suppression argument, and we’d like you to
focus on the jury instructions instead.” Judges are not potted
plants. Giving litigants the kind of guidance that the IJ gave
here is an important part of the job, not a denial of due
process.
The majority insists that the IJ “barred complete chunks
of . . . oral testimony,” maj. op. 16 (brackets omitted), but it
can’t cite any prohibitory words. The judge didn’t say, “Mr.
Oshodi, you may not testify as to anything already addressed
in your papers.” He didn’t say, “Testimony will be limited to
new material.” Nor did he use the majority’s word, “barred,”
OSHODI V. HOLDER 33
or any of its cognates, synonyms or equivalents. Rather, the
IJ (1) recognized “that there needs to be testimony concerning
[the] application,” but advised Oshodi that (2) he was not
“looking for everything to simply be repeated” and that (3)
Oshodi was free to add new material. Then he added, (4)
“[O]therwise, I don’t need it line by line, okay?” If the judge
meant to prohibit repetition of anything in the written
application, he would have said so outright or stopped at
statement (3). The last phrase makes sense only if the judge
expected Oshodi to testify as to material that was already
covered in his asylum application.
The IJ’s mild intervention echoed exhortations heard in
courtrooms across the country every day: “Move it along,
counselor.” If admonitions this mild and innocuous are due
process violations, then what can a judge say to a meandering
litigant to keep the hearing on track? According to the
majority, judges violate the Constitution if they issue any
instruction that a litigant or his lawyer might interpret as a
refusal to hear testimony. But in a system with a backlog of
nearly 30,000 unresolved cases from last year alone, see U.S.
Dep’t of Justice, Exec. Office for Immigration Review, FY
2012 Statistical Year Book B2 (2013), we can’t afford to turn
every sign of impatience into a constitutional violation, see
Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir. 1999).
IJs commonly rush aliens through their testimony far
more forcefully than the judge did here, see, e.g., Boci v.
Gonzales, 473 F.3d 762, 765 (7th Cir. 2007), and lawyers
have a professional duty to push back if they believe their
clients’ rights are being compromised, see Nat’l Immigration
Project, Nat’l Lawyers Guild, Immigration Law and Defense
§ 13.72, at 974 (2012). Nothing the IJ said precluded Oshodi
from giving a vivid oral account of the incidents of
34 OSHODI V. HOLDER
persecution he allegedly suffered. If his lawyer had any
doubts on that score, he could have asked for clarification or
made a proffer as to what his client would say. At the very
least, he should have objected.
Oshodi’s lawyer chose not to pursue the matter. For all
we know, he made a tactical decision, fearing that Oshodi
would confuse facts or testify inconsistently with his written
statement. See Grava v. INS, 205 F.3d 1177, 1180 (9th Cir.
2000) (“Given the difficulties many applicants face at their
hearings . . . the asylum application sometimes represents an
alien’s best case.”). Clients do stumble on occasion,
particularly when they’re spinning tales, and Oshodi has a
long history of prevarication. His lawyer may have been just
as happy to rest on the written submissions.
The majority points to a second instance where the IJ
allegedly kept Oshodi from testifying, maj. op. 9–10, but this
is pure fantasy. Oshodi’s lawyer asked him to recount an
incident where he was beaten by police at a political rally.
Rather than answer the question, Oshodi spoke at length
about his door-to-door campaign to raise awareness about a
tainted election. Understandably confused, the IJ tried to get
Oshodi back on track. The majority claims that the IJ
precluded Oshodi from responding, but this just isn’t true.
Here is the full exchange:
Q: Briefly describe what happened in this
encounter with the police.
A: Like I said earlier, we were in the
neighborhood called Oshodi, if you can
remember, is my last name and is the
(indiscernible) of Nigeria. And we were
OSHODI V. HOLDER 35
talking to people in the neighborhood sharing
political awareness to the people through
political material such as posters, flyers, and
pamphlets, and we talked to you know,
advised people of what was going wrong in
Nigeria. Specifically, in 1979 when Shagari
won the election,
IJ: Spelling please?
A: S H A G A R I. There was, there was an
electoral committee that was elected to
oversee and write a little portion of the
constitution, and there was a decree which
specifies that any president from any party
must win two-thirds of the votes or could not
be elected as a president and the election has
to be done over. Unfortunately, this present
president, Alhaji Shehu Shagari, only won 12
states and 25% and the 13 states, he only won
like 10% of that, which was an illegal
election. So my main strategy was to alert the
people of Nigeria, especially my community
and the chapter to oppose the election. Also
in Nigeria, the people—
IJ: Excuse me. Counsel, do you have a
specific question for the respondent to answer
because right now I don’t know what he’s
answering. I don’t think that it was the last
question?
Oshodi spent a page of transcript (six fairly convoluted
sentences) not answering the question put to him. The IJ
36 OSHODI V. HOLDER
pointed this out and asked his lawyer whether he had a
“specific question for [Oshodi] to answer.” Rather than
restating his question as the IJ suggested, the lawyer passed
on to another matter and then abruptly ended his examination.
The majority is being unjust in calling what the IJ did an
“admonishment” and blaming him for the lawyer’s decision
to end the examination. Maj. op. 9–10.
We have long held that judges act well within their
discretion when they “participate in the examination of
witnesses for the purpose of clarifying the evidence.” United
States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986). IJs
have not merely the inherent authority of trial judges, but an
affirmative duty, imposed by statute, to develop a clear record
for appeal. See 8 U.S.C. § 1229a(b)(1); Kaur v. Ashcroft, 388
F.3d 734, 737 (9th Cir. 2004); 8 C.F.R. § 1240.11(c)(3)(ii).
Oshodi had strayed far from his lawyer’s question, and the IJ
tried to bring clarity and coherence to a potentially confusing
portion of the transcript. That Oshodi’s lawyer then suddenly
ceased questioning Oshodi cannot fairly be attributed to
anything the IJ said or did.
The majority’s reading of the record “is yet another
tiresome example of the nitpicking we engage in as part of a
systematic effort to dismantle the reasons immigration judges
give for their decisions.” Kumar v. Gonzales, 444 F.3d 1043,
1056 (9th Cir. 2006) (Kozinski, J., dissenting in part)
(internal quotation marks omitted). Here the IJ was
thoroughly familiar with Oshodi’s written submissions, and
wished to focus the hearing on new, important or disputed
material. See 8 C.F.R. § 1240.11(c)(3). Instead of praising
the IJ’s diligent preparation and careful management of the
hearing, the majority chastises him for violating the
Constitution. But “an IJ who plays an active role in keeping
OSHODI V. HOLDER 37
the focus of the evidentiary hearing sharp is to be
commended, not condemned.” Jorgji v. Mukasey, 514 F.3d
53, 59 (1st Cir. 2008) (internal quotation marks omitted).
2. But let’s assume that the IJ did what the majority
unfairly claims he did. Let’s pretend he told petitioner: “You
may not testify as to anything contained in your sworn
asylum statement. You may testify as to any new material,
and you may then be cross-examined as to your written and
oral statements.” Had the IJ done this, which plainly he did
not, this would present an interesting constitutional question:
Does due process guarantee an illegal alien seeking to remain
in the United States the right to present live testimony in
support of his petition, or may he be limited to a sworn
written statement followed by live cross-examination?
The Supreme Court has spoken directly to this issue:
“There is no inexorable requirement that oral testimony must
be heard in every administrative proceeding in which it is
tendered.” FDIC v. Mallen, 486 U.S. 230, 247–48 (1988).
Mallen was the president and a director of a federally insured
bank who was indicted, but not yet tried, on various false
statement charges. Id. at 236–37. The FDIC issued an ex
parte order suspending Mallen from further participation in
the bank’s affairs. Id. at 238. Mallen requested an
administrative hearing where he proposed to present “both
oral testimony and written evidence” showing that his
“continued service was not likely to pose a threat to the
interests of the bank’s depositors or to threaten public
confidence in the bank.” Id. The FDIC agreed to a hearing,
but “took the position that oral testimony would not be
necessary.” Id. at 239. The FDIC relied on 12 U.S.C.
§ 1818(g)(3), which provided that the bank officer could
“submit written materials (or, at the discretion of the agency,
38 OSHODI V. HOLDER
oral testimony) and oral argument.” Mallen, 486 U.S. at235–36 n.6.
Mallen filed suit in district court, claiming that he was
denied due process because the administrative hearing did not
guarantee him the right to present live testimony. Id. at 239.
The district court rejected the first claim but sustained the
second, holding the statutory procedure “‘constitutionally
inadequate . . . because it fails to provide for a hearing at
which oral evidence can be presented.’” Id. (quoting
667 F. Supp. 652, 659–60 (N.D. Iowa 1987)). On that basis,
it nullified Mallen’s suspension. Id. The government took a
direct appeal to the Supreme Court under then-prevailing
procedures.
The Supreme Court unanimously reversed. Id. at 248. It
recognized that Mallen’s “interest in the right to continue to
serve as president of the bank and to participate in the
conduct of its affairs is a property right protected by the Fifth
Amendment Due Process Clause,” and Mallen was therefore
“entitled to the protection of due process of law.” Id. at 240.
The Court rejected his contention that the statutory procedure
“violates due process because it does not guarantee an
opportunity to present oral testimony.” Id. at 247. The Court
recognized that there may be “post-suspension proceedings
under § 1818(g) in which oral testimony is essential to enable
the hearing officer to make a fair appraisal of the impact of a
suspended officer’s continued service on the bank’s security
and reputation.” Id. Mallen, however, had not proffered any
such evidence to the hearing officer and given him an
opportunity to accept or reject it. “For all we know,” the
Court explained, “the hearing officer might have accepted
such evidence; or if he rejected it, he might have been entirely
correct in deciding that it was merely cumulative to material
OSHODI V. HOLDER 39
that was adequately covered by written submissions or that
it was otherwise unnecessary or improper.” Id. (emphasis
added). In reaching its conclusion, the Court cited with
approval the three-judge district court’s ruling in Feinberg v.
FDIC, 420 F. Supp. 109, 120 (D.D.C. 1976), which held that
such a hearing “does not seem to require any more than
written submission.” Mallen, 486 U.S. at 248 n.13.
Mallen stands for two propositions that bear directly on
our case. First, it holds squarely that due process does not
require an opportunity to present live testimony in every case
where important property or liberty interests are at stake. At
times, all oral testimony can be excluded, not merely direct
testimony, as the majority (wrongly) posits happened in
Oshodi’s case. Second, the Court states quite clearly that one
legitimate basis for precluding the presentation of oral
testimony is that the “material . . . was adequately covered by
[the] written submissions.” Id. at 247. If the IJ prohibited
anything at all here, it was precisely what the Supreme Court
in Mallen said it was OK to prohibit.
Mallen is not the only case where the Supreme Court has
shown itself reluctant to impose constitutional constraints on
administrative proceedings. In Richardson v. Perales, 402
U.S. 389 (1971), the Court considered whether a hearing
officer violated due process by basing the denial of disability
benefits on the hearsay reports of nonattending physicians,
when those reports were contradicted by the live testimony of
a treating physician. Id. at 401–02. The district court had
been “reluctant to accept as substantial evidence the opinions
of medical experts submitted in the form of unsworn written
reports, the admission of which would have the effect of
denying the opposition an opportunity for cross-
examination,” and the Fifth Circuit affirmed. Id. at 397–98.
40 OSHODI V. HOLDER
The Supreme Court reversed, emphasizing the informality of
Social Security claims procedures and the burden and
expense of conducting 20,000 hearings a year. Id. at 400–06.
The majority purports to read Mallen as “also stan[ding]
for the proposition that, in some cases, due process likely
requires the admission of oral testimony.” Maj. op. at 24
(citing Mallen, 486 U.S. at 247). Mallen presents this as an
assumption, not a holding, but dismisses it as inapplicable
when the oral testimony is “merely cumulative to material
that was adequately covered by written submissions,” 486
U.S. at 247—precisely Oshodi’s situation. Even under the
majority’s own reading of Mallen, there is no due process
violation here.
But the majority far outstrips even its own optimistic
interpretation of Mallen by holding that IJs must allow oral
testimony not just in some asylum cases, but in all of them:
“[O]ur holding today [is] that due process requires the
admission of oral testimony in an asylum and withholding
hearing wherein the applicant’s eligibility for relief turns on
his credibility.” Maj. op. at 24–25. Asylum and withholding
cases inherently turn on credibility because the petitioner
must persuade the IJ that he will be subject to persecution if
he returns to his home country. Oshodi’s case is, in fact,
typical: He alleges incidents of persecution and violence
directed against him and his family in a distant land, maj. op.
5–7, and seeks to avoid deportation to a country riven by
strife, id. at 6, 7. My colleagues and I have seen similar
claims in countless cases that litter the pages of the Federal
Reporter and, even more, the Federal Appendix. See, e.g.,
Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314–15 (9th Cir.
2012); Li v. Holder, 559 F.3d 1096, 1110–12 (9th Cir. 2009);
Akinshina v. Gonzales, 161 Fed. App’x 694 (9th Cir. 2006);
OSHODI V. HOLDER 41
David v. Gonzales, 159 Fed. App’x 754 (9th Cir. 2005);
Mashiri v. Ashcroft, 383 F.3d 1112, 1119–21 (9th Cir. 2004).
The majority opinion here directly contravenes the Supreme
Court's holdings in Mallen and Perales.
Nor can this holding be confined to the immigration
context. The majority holds that the Constitution gives
would-be immigrants a right to unfettered oral testimony.
There’s no credible way we can deny that right to American
citizens in the multitude of other administrative contexts that
involve credibility. Starting today, anyone in the Ninth
Circuit involved in “any contested administrative hearing”—
from the Social Security disability claimant to the
unemployment benefits seeker to the zoning applicant—has
a right to present full oral testimony without impediment so
long as “credibility is a determinative factor.” Maj. op. 13.
By injecting due process where the Supreme Court has
said it doesn’t belong, the majority provides a blueprint for
the imposition of trial-like procedures on a wide swath of
administrative proceedings. All of this disregards the
Supreme Court’s steadfast refusal to hold that the procedural
protections that attend a trial are necessary to ensure
fundamental fairness in administrative hearings. See, e.g.,
Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1,
18–19 (1978); Bd. of Curators of the Univ. of Mo. v.
Horowitz, 435 U.S. 78, 84–86 (1978).
The Supreme Court first announced that an alien facing
removal is entitled to an “opportunity to be heard upon the
questions involving his right to be and remain in the United
States” in The Japanese Immigrant Case, 189 U.S. 86, 101
(1903). What kind of hearing did the Supreme Court have in
mind? “[N]ot necessarily an opportunity upon a regular, set
42 OSHODI V. HOLDER
occasion, and according to the forms of judicial procedure,
but one that will secure the prompt, vigorous action
contemplated by Congress, and at the same time be
appropriate to the nature of the case upon which such officers
are required to act.” Id. As far back as 1903, then, the Court
made clear that due process in this context can be satisfied
with something far less formal than a hearing that conforms
“to the forms of judicial procedure.”
To determine whether a particular procedure is
constitutionally required in removal proceedings, we must
balance the various interests at stake. Mathews v. Eldridge,
424 U.S. 319, 335 (1976); see also Landon v. Plasencia, 459
U.S. 21, 34–35 (1982). The majority begins its balancing in
a curious way: by telling us that it’s meaningless because
we’ve already found there’s a constitutional right to present
oral testimony in removal proceedings. The case that
supposedly established this right, Colmenar v. INS, 210 F.3d
967 (9th Cir. 2000), found a denial of due process when the
IJ announced that he’d made up his mind before the hearing
began, “behaved . . . as a partisan adjudicator seeking to
intimidate,” and refused to allow the petitioner to testify to
clearly relevant matters not covered in his written application.
Id. at 971. So Colmenar has little in common with our case
and, in any event, didn’t engage in a Mathews balancing. It
rested instead on a single BIA case that had nothing to do
with due process. Id. at 971–72 (discussing Matter of Fefe,
20 I. & N. Dec. 116, 118 (BIA 1989)).
Having already figured out the right answer, my
colleagues grudgingly go about showing their work. Under
Mathews, we must balance (1) the private interest at stake; (2)
“the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of
OSHODI V. HOLDER 43
additional . . . safeguards”; and (3) the government’s interest,
which includes the burdens imposed by more process.
Mathews, 424 U.S. at 335. I’m willing to indulge the
majority’s assumption that the first factor weighs in favor of
the immigrant, although I rather suspect that many asylum
applicants and their lawyers would dearly love to have an
excuse to avoid testifying without creating an adverse
inference. But the majority’s perfunctory examination of the
benefit of additional procedural safeguards and the burden
those procedures will impose falls far short of the rigorous
analysis we must conduct when determining constitutional
rights.
Sufficiency of existing procedures. The existing
procedures give the alien substantial protections. The alien
first submits a written application for withholding of removal,
and then gets a hearing at which he has the right to present
evidence; call his own witnesses; and cross-examine adverse
witnesses. See 8 U.S.C. § 1229a(b)(4)(B); 8 C.F.R.
§§ 1240.10(a)(4), 1240.11(c)(3)(iii). Should he require
documents not readily available to him, he may apply to the
immigration judge for a subpoena. See 8 C.F.R.
§ 1003.35(b)(1). He has the privilege of being represented by
counsel. See 8 U.S.C. § 1229a(b)(4)(A). After the hearing,
the alien may be permitted to submit additional briefing to
supplement his file. See Somakoko v. Gonzales, 399 F.3d
882, 883 (8th Cir. 2005).
The majority argues that full oral testimony is necessary
because “Mathews teaches us” it’s required in “cases that
hinge on credibility.” Maj. op. 26. If so, it’s a lesson the
Supreme Court has not yet learned. See, e.g., Mackey v.
Montrym, 443 U.S. 1, 24 (1979) (Stewart, J., dissenting)
(decrying majority’s decision not to require a hearing where
44 OSHODI V. HOLDER
issues “plainly involve[d] . . . credibility and veracity”). Live
testimony simply isn’t a constitutional prerequisite to making
a credibility determination in an administrative proceeding.
In an effort to prove otherwise, the majority cherry-picks
language from a handful of criminal cases. Maj. op. 18. But
the cases themselves merely recognize the value of oral
testimony in certain narrow contexts. See, e.g., United
States v. Thoms, 684 F.3d 893, 903 (9th Cir. 2012) (“[A]
district court abuses its discretion when it reverses a
magistrate judge’s credibility determinations, made after
receiving live testimony and favorable to the government,
without viewing key demeanor evidence, with one exception
. . . .”). Equally unpersuasive is the majority’s assertion that
Anderson v. Bessemer City, 470 U.S. 564 (1985) stands for
the proposition that special deference is owed a trial court’s
credibility determinations because it is best able to evaluate
demeanor during live testimony. Maj. op. 19. Anderson, in
fact, stands for the contrary proposition: We apply the same
deferential standard “even when the district court’s findings
do not rest on credibility determinations” because the
“rationale for deference to the original finder of fact is not
limited to the superiority of the trial judge’s position to make
determinations of credibility.” Anderson, 470 U.S. at 574.
My colleagues are so busy stringing together out-of-
context quotes that they overlook that the IJ has other reliable
means of assessing credibility. For one, the alien may
introduce written evidence to corroborate his declaration,
including news accounts, reports from doctors and letters
from family and friends. See 8 U.S.C. § 1229a(b)(4)(B). The
regulations also require the IJ to place the alien under oath
and question him about the truth of his application. 8 C.F.R.
§ 1240.11(c)(3)(iii). We have long recognized that cross-
OSHODI V. HOLDER 45
examination, by both the immigration judge and the
government’s lawyer, is a powerful engine for detecting the
truth of an alien’s testimony. Indeed, cross-examination is far
more important than direct examination. Most people can tell
a convincing tale under friendly questioning by their own
lawyers, but surviving a stringent cross-examination is what
really matters in establishing credibility. See Singh-Kaur v.
INS, 183 F.3d 1147, 1151 (9th Cir. 1999); see also Abovian
v. INS, 257 F.3d 971, 977 (9th Cir. 2001) (Kozinski, J.,
dissental). The statutory right to submit records, coupled
with some oral colloquy between the alien and the IJ,
guarantees the alien a reasonable opportunity to present
evidence bearing on his credibility.
Given the multitude of tools available for the petitioner to
establish his credibility and prove up his story, the ability to
present live direct testimony during a removal proceeding
strikes me as relatively unimportant. Judge Friendly, in his
seminal article cited approvingly by the Supreme Court in
Mathews, spoke directly to this issue:
I would object to requiring oral presentation
as a universal rule. Determination whether or
not an oral hearing is required should depend
on the susceptibility of the particular subject
matter to written presentation, on the ability
of the complainant to understand the case
against him and to present his arguments
effectively in written form, and on the
administrative costs.
Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev.
1267, 1281 (1975).
46 OSHODI V. HOLDER
Judge Posner, who is no fan of immigration judges, has
noted the insignificance of oral testimony in immigration
cases:
The fact that [petitioner] was testifying
through an interpreter has a significance that
my colleagues do not appreciate when they
say that “The IJ spent 6 hours in a hearing
room, face to face, with [petitioner]. We have
never met her.” I take this to be an allusion to
the common though not necessarily correct
belief that being present when a witness
testifies greatly assists a judge or juror in
determining whether the witness is telling the
truth. Even if so in general, it cannot be so
when the witness is a foreigner testifying
through an interpreter, especially if the judge
cannot even hear the foreigner, but only the
interpreter. Reading the facial expressions or
body language of a foreigner for signs of lying
is not a skill that either we or [the IJ] possess.
Apouviepseakoda v. Gonzales, 475 F.3d 881, 897 (7th Cir.
2007) (Posner, J., dissenting).
Whether seeing a witness testify live is critical to judging
his credibility is, as Judge Posner says, debatable. The pre-
eminent civil procedure treatise suggests that “[p]erhaps . . .
the entire American reliance on demeanor is misplaced.”
12 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 3070.2 (2d ed. 1997); see also Morales v.
Artuz, 281 F.3d 55, 61 & nn.3–4 (2d Cir. 2002) (noting
empirical studies have refuted belief that “demeanor is a
useful basis for assessing credibility”). Observing a witness
OSHODI V. HOLDER 47
who communicates through the cumbersome intermediation
of an interpreter, or even simply grew up in a different
culture, can be downright misleading. See Li, 559 F.3d at1100 n.4 (9th Cir. 2009) (attributing seeming inconsistencies
in an alien’s testimony to “numerous translation difficulties”);
Kadia v. Gonzales, 501 F.3d 817, 819 (7th Cir. 2007)
(Posner, J.) (noting that “immigration judges often lack the
‘cultural competence’ to base credibility determinations on an
immigrant’s demeanor”); Dia v. Ashcroft, 353 F.3d 228, 276
(3d Cir. 2003) (en banc) (McKee, J., dissenting in part)
(“[W]hile the failure to look someone in the eye while
speaking is usually interpreted as an indication of deception
by people in Western cultures, avoiding eye contact has a
very different meaning in some other cultures.”); Chouchkov
v. INS, 220 F.3d 1077, 1083 n.15 (9th Cir. 2000) (“[W]hat
sounds peculiar in one country may be the norm in another.”);
Barapind v. Rogers, No. 96-55541, 1997 WL 267881, at *2
(9th Cir. Feb. 6, 1997) (holding IJ’s belief that petitioner’s
“stoic” demeanor indicated dishonesty was the result of
cultural bias). In light of the other mechanisms available to
the IJ for detecting whether the petitioner is telling the truth
or lying, I can’t say that allowing a petitioner to drone on
endlessly, restating every word and every line of his asylum
application, is particularly significant to affording him a fair
opportunity to present his case.
Burdens imposed by additional procedures. Here
again my colleagues disregard what Mathews requires: a full
balancing of all of the interests at stake. Instead, the majority
asserts the burden on the government is “minimal” because
it is merely being ordered to follow “the governing rules and
regulations.” Maj. op. 27. What “governing rules and
regulations”? The majority cites none. It does cite Matter of
Fefe, but that case doesn’t purport to give asylum applicants
48 OSHODI V. HOLDER
an unfettered right to testify. See 20 I. & N. Dec. at 118. In
Fefe, the BIA “anticipate[d]” a thorough examination of
applicants in most cases, but established no right to present
testimony in every case. Id.
Had the majority given more than cursory attention to this
factor, it would have noted that immigration judges decided
an average of 1,014 cases each in 2008, a pace that would
make any judge’s head spin. See Improving Efficiency and
Ensuring Justice in the Immigration Court System: Hr’g
Before the S. Comm. on the Judiciary, 112th Cong. 3 (2011)
(statement of Karen T. Grisez, Am. Bar Ass’n Comm’n on
Immigration). “To produce these numbers, each judge must
have issued an average of at least 19 decisions each week, or
approximately four decisions per weekday, . . . even while
assuming no absences for vacation, illness, training, or
conference participation.” Id.
Let’s say that the IJ here had decided to manage his
Sisyphean caseload by instructing aliens that they could not
repeat anything already in their written submissions, but
could testify on direct only as to new material, before
undergoing cross-examination. Or let’s say that the Attorney
General by regulation provided that aliens must submit all of
their evidence in writing, and must appear at an oral hearing
only to be cross-examined as to the details of their stories.
What then?
The Supreme Court has told us that we cannot judge the
propriety of any such procedure in the abstract, but must
consider the costs and burdens imposed on the system if the
IJ is not permitted to follow these streamlined procedures:
“[T]he Government’s interest, and hence that of the public, in
conserving scarce fiscal and administrative resources is a
OSHODI V. HOLDER 49
factor that must be weighed.” Mathews, 424 U.S. at 348.
Giving IJs discretion to preclude direct testimony would
significantly shorten the time devoted to each hearing and, in
the aggregate, considerably speed up the process of
adjudicating petitions for immigration relief. It’s easy for us
to say, “Let them hire more IJs,” but in this era of cutbacks
and sequestrations, when U.S. citizens are feeling the
consequences of dwindling federal resources, the government
will not ramp up the budget for helping undocumented aliens
gain a legal foothold in the United States.
The majority ignores these considerations and merrily
piles on more process, but it’s aliens with meritorious claims
who will suffer for it. Applicants for asylum and similar
relief wait an average of 550 days for a decision from the
immigration court, 660 if they’re in California. See Suzy
Khimm, Many Immigrants Facing Deportation Must Wait
550 Days For Their Day In Court, WashingtonPost.com (Feb.
22, 2013). These delays are a boon to aliens who make
flimsy claims in an effort to forestall their inevitable removal,
but they hurt aliens scarred by persecution whose lives are on
hold as they wait to secure a future in the United States.
While overstating the virtues of oral testimony, my
colleagues forget that prompt adjudication of claims is a
component of fundamental fairness. See 2 Richard J. Pierce,
Jr., Administrative Law Treatise § 9.10, at 894 (5th ed. 2010).
3. Even if due process required that an alien be allowed
to “testify fully,” as the majority wrongly holds, Oshodi can’t
prevail unless he was prejudiced by being denied this right.
Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009).
The majority recites our circuit’s questionable prejudice test,
which allows aliens to meet their burdens by demonstrating
that “the outcome of the proceeding may have been affected”
50 OSHODI V. HOLDER
by the due process violation. Zolotukhin v. Gonzales, 417
F.3d 1073, 1076 (9th Cir. 2005). That’s right: Around here,
an alien can demonstrate prejudice by showing a mere
possibility that the error influenced the result. This is no
standard at all. One can seldom say with confidence that a
little more testimony would not have affected the outcome.
See id. at 1077.
In our circuit, aliens in removal proceedings have an
easier time showing prejudice than do criminal defendants,
who must demonstrate at least “a reasonable possibility” that
the constitutional errors at their trial contributed to their
conviction, see Chapman v. California, 386 U.S. 18, 23
(1967), and a much easier time than habeas petitioners facing
execution, who must show such errors had a “substantial and
injurious effect” on the verdict, see Brecht v. Abrahamson,
507 U.S. 619, 637 (1993). We have it exactly backwards:
Citizens facing loss of life or liberty and the stigma of a
criminal conviction should get greater procedural protection
than foreign nationals seeking to escape deportation from the
United States.
Not surprisingly, our prejudice standard is an outlier
among the circuits, most of which require a substantial
probability that the alleged due process violation swayed the
outcome of the removal proceeding. See Denis v. Att’y Gen.
of the United States, 633 F.3d 201, 219 (3rd Cir. 2011)
(“substantial prejudice”); Zhou Zheng v. Holder, 570 F.3d
438, 442 (1st Cir. 2009) (“likely to have affected the outcome
of the proceedings”); Lin v. Holder, 565 F.3d 971, 979 (6th
Cir. 2009) (“substantial prejudice”); Avila v. U.S. Att’y Gen.,
560 F.3d 1281, 1285 (11th Cir. 2009) (“would have affected
the outcome of the case”). As we are sitting en banc, we
OSHODI V. HOLDER 51
should overrule Zolotukhin and bring our standard into line
with the majority view.
But Oshodi loses even under our watered-down prejudice
standard. The majority speculates that the immigration judge
might have found Oshodi credible had he been permitted to
testify about the “brutal torture” he suffered in Nigeria. Maj.
op. 13. This makes no sense at all. Why would testifying
about torture be more believable than testifying about
anything else? Oshodi’s testimony was riddled with evasions
and inconsistencies, and he had a long record of dishonesty.
Additional testimony could do nothing to cure the problems
the IJ correctly perceived in the testimony Oshodi had already
delivered.
Oshodi claimed to have entered the United States on a
business visa, then admitted to entering illegally for a little
while before rehashing the story about the business visa once
again. He told an immigration officer that he feared
persecution in Nigeria because of his “dad’s” political
advocacy, but then maintained on cross that it was his
“grandad’s” activism that placed him in danger. He claimed
to own significant land in Nigeria, then conceded it was not
in his name. Oshodi’s brother was sitting in the courtroom,
yet, as the IJ noted, Oshodi didn’t ask him to corroborate any
of these contested details about his family or personal history.
Additionally, Oshodi acknowledged his arrests for passing
bad checks, giving false information to a police officer and
killing a woman in a drunk driving accident. The IJ was
especially troubled that Oshodi was convicted for this last
offense under a false name, one of several that he employed,
allegedly to avoid detection by Nigerian spies monitoring his
whereabouts in the United States. The IJ also pointed to
52 OSHODI V. HOLDER
numerous other discrepancies and evasions in Oshodi’s
testimony.
The majority sniffs that these inconsistencies concern
“peripheral issues,” but my colleagues are stuck in a pre-
REAL ID Act time warp. The Act permits IJs to assess
credibility based on any inconsistency or falsehood,
regardless of whether it “goes to the heart of the applicant’s
claim.” See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C);
see also Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir.
2010). The logic behind the statute is the same that animates
Federal Rule of Evidence 609(a)(2), which permits
impeachment of any witness with past crimes involving
dishonesty or falsity, such as passing bad checks and lying to
police. Lie once, lie again: If an alien is willing to fudge
small details, Congress has said, the IJ may infer he’s also
willing to fabricate a history of abuse to avoid removal from
the United States. “[A] man with a criminal background
[may indeed] also face severe persecution in his home
country,” maj. op. 30 n.15, but a man who is caught telling
tales can’t rehabilitate himself by telling more tales. After so
much dishonesty, Oshodi could have recounted the torture of
Gloucester in King Lear and it would have done him no good.
The rampant inconsistencies in Oshodi’s testimony and
his long record of dishonesty and lawlessness amply support
the IJ’s adverse credibility finding. See Malkandi v. Holder,
576 F.3d 906, 912 (9th Cir. 2009). That’s all we need to
know to deny the petition and uphold the agency’s decision.
* * *
Today’s ruling impairs the ability of immigration judges
to manage their crushing caseload, and benefits fabulists and
OSHODI V. HOLDER 53
charlatans at the expense of the real victims of persecution.
It disregards Supreme Court precedent and takes a giant step
towards importing the Constitution into the realm of
administrative procedure. I can’t say precisely where my
colleagues’ ill-conceived constitutional venture will end, but
it will be nowhere good. I’ll have none of it.
54 OSHODI V. HOLDER
Appendix
The IJ’s credibility findings in Oshodi’s case:
The Court finds the testimony of the
expert witness, Professor James Mitchell,
credible and worthy of significant weight.
However, although the respondent provided a
very detailed declaration as to his claim, is
college educated and mature in years, there
were numerous contradictory matters and
inconsistent statements, as well as omissions
from his claim which undermine his
credibility. At the onset, the respondent’s
acknowledged use of made up false names all
cast doubt upon his forthrightness. For
instance, the respondent claimed that he
informed the court that convicted him of
“Vehicular Manslaughter while Intoxicated”
of his true name, but yet it is not the name
under which he is convicted.
The respondent’s brother was sitting in
Court during the entire proceeding, and even
though the respondent was represented by
counsel, the respondent never called his
brother to testify. The respondent surely
knew that the entirety of his identity and
claimed problems owing to his activities and
family were certainly in dispute. Not only did
the respondent’s brother not testify, he failed
to submit an affidavit. At the very least, the
respondent’s brother could have testified as to
the respondent’s clan or ethnic tribe, who the
OSHODI V. HOLDER 55
respondent’s mother was and her political
involvement in Nigeria, who the respondent’s
father was and whether he is living or
deceased, whether other family members had
been granted asylum in the United States as
the respondent claimed, and any problems that
he may be aware of as experienced by the
respondent. These inconsistencies concerning
the respondent’s family undermine the
respondent’s claim that he is who he says he
is.
Other aspects of his testimony undercut
his credibility. The respondent complained
that he learned a substantial amount of his
property was confiscated in Nigeria. Later,
the respondent admitted that the properties
were not in his name and that the deed was
never transferred. The lands are actually part
of an estate for his half-siblings.
The respondent also failed to satisfactorily
explain whether his father was living or
deceased. The testimony of Professor
Mitchell seems to indicate that in his
conversations with the respondent, that to the
best of the Professor’s recollection, the
respondent indicated that he is estranged from
his father, but that the father is living in
southern California. Also, the respondent
testified that, in a sworn Q&A with
immigration authorities, he claimed he feared
harm in Nigeria, not because of his mother as
he lists as one of the reasons on his
56 OSHODI V. HOLDER
application, but because of his “dad.” This is
in conflict with the respondent’s previous
testimony, when he stated that his father had
no political involvement. In an attempt to
explain the inconsistency, the respondent
denied that the sworn statement taken by
immigration officials was true, saying that the
transcription is not in his handwriting, and the
only mention during the Q&A was his
“grandad” or grandfather. He further
explained, that although he admitted to
initialing the statement, he was not given a
chance to read it. However, the Q&A
transcript had been admitted into evidence
without objection. In addition, the
respondent’s explanation would be
undermined, as his asylum application does
not cite to his grandfather as a basis for his
fear of returning to Nigeria at all.
There were also notable omissions and
discrepancies between the respondent’s
application and his testimony. The
respondent’s application failed to list all ten
siblings, and where they live. The respondent
expressed confusion because some of his
siblings are half-siblings. However, his claim
of confusion is undermined, as three of the
respondent’s four siblings in the United States
are half-siblings, and yet he listed three on his
application. The respondent also failed to
mention all of his siblings legally in the
United States when he was questioned by the
Court on February 6, 2006, saying that he had
OSHODI V. HOLDER 57
only two brothers and one sister.
Furthermore, the respondent did not list any of
the siblings out of the United States on his
application and he failed to disclose that one
sister still lives in Nigeria. These
inconsistencies and discrepancies between his
testimony and application further undermine
his credibility.
Moreover, when the Court asked the
respondent about his father, he claimed that
his father had regularly come and gone from
Nigeria. This statement goes to the heart of at
least one aspect of the respondent’s claim,
because the respondent indicated that having
the family name “Oshodi,” is a clear identifier
as to what family he is from, as it is a very
prominent name, but not common. His
application lists his father as having the same
last name. If that is true, and he is living and
could come and go from Nigeria without
problems, that certainly has a bearing on the
respondent’s claim that he would be identified
and detained in Nigeria because of his name.
Considering that the respondent’s identity is
already in question, his overall credibility is
undermined by his use of aliases, and his
inconsistencies appear as intentional
omissions, the Court finds that he should
provide evidence that corroborates this
testimony.
Decision & Order of the Immigration Judge at 9–11, May 26,
2006.