Olakunle Oshodi v. Eric H. Holder Jr. ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLAKUNLE OSHODI, AKA Bode 
Okeowo, AKA Olakunle Akintola
Oshodi, AKA Olakunle Akintola
Akinbayo Oshodi, AKA Isaac
Oliver Alger, AKA Curtis Evans, No. 08-71478
AKA Bode Olacune Okeowo,
AKA Isaac Okeowo,  Agency No.
A023-484-662
Petitioner-Appellant,
OPINION
v.
ERIC H. HOLDER JR.,* Attorney
General,
Respondent-Appellee.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 10, 2009
Submission Withdrawn December 24, 2009
Resubmitted August 27, 2010
Submission Withdrawn and Deferred September 30, 2010
Resubmitted June 24, 2011
San Francisco, California
Filed January 26, 2012
*Eric H. Holder Jr. is substituted for his predecessor Michael B.
Mukasey as Attorney General of the United States. Fed. R. App. P.
43(c)(2).
737
738 OSHODI v. HOLDER
Before: Diarmuid F. O’Scannlain, and Johnnie B. Rawlinson,
Circuit Judges, and Robert E. Cowen,**
Senior Circuit Judge.
Opinion by Judge Rawlinson
**The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
740 OSHODI v. HOLDER
COUNSEL
Petitioner Olakunle Oshodi is represented by Leon Fresco,
Marlysha Myrthil, and Christopher Nugent (argued), Holland
& Knight, LLP, Jacksonville, Florida.
Respondent Attorney General Eric H. Holder Jr. is repre-
sented by Michael F. Hertz, Acting Assistant Attorney Gen-
eral, Civil Division; Anh-Thu P. Mai-Windle, Senior
Litigation Counsel; and Imran R. Zaidi, Trial Attorney
(argued), Office of Immigration Litigation, United States
Department of Justice, Washington, D.C.
OPINION
RAWLINSON, Circuit Judge:
Olakunle Oshodi petitions this court for review of a deci-
sion by the Board of Immigration Appeals (BIA) affirming
the immigration judge (IJ), who made an adverse credibility
determination and denied Oshodi’s requests for withholding
of removal and relief pursuant to the Convention Against Tor-
ture (CAT).1
We have jurisdiction pursuant to 8 U.S.C. § 1252, and we
deny the petition for review.
1
Oshodi does not appeal the IJ’s denial of his asylum claim.
OSHODI v. HOLDER 741
I. BACKGROUND
A. Oshodi’s Asylum Application
Oshodi, a citizen of Nigeria, requested asylum, withholding
of removal, and protection under CAT based on his fear of
persecution and torture due to his religion and political opin-
ions.
In his declaration, Oshodi stated that his mother was killed
in 1968 by “anti-democratic officers” because of her political
activities. When Oshodi was sixteen he joined the National
Association of Nigerian Students (NANS), a group that
opposed the security forces, and when he returned to Nigeria
in 1981, he joined the Unity Party of Nigeria (UPN), a group
that opposed the government and security forces.
Oshodi described three incidents of persecution. First,
Oshodi attended a rally against the government and was
beaten by police, but escaped arrest. Second, in February,
1981, Oshodi and his friend drove through a police check-
point after the police saw “political propaganda.” According
to Oshodi, the police shot at the car and hit Oshodi’s friend,
who died eight days later. The police detained and tortured
Oshodi for two days until his uncle paid for his release.
Thereafter, an open warrant was issued against Oshodi for
failing to report for weekly monitoring. Third, on February
17, 1981, the police arrested Oshodi after he dropped a party
member off at the airport. The police drove Oshodi to an
unknown location where he was “shot in the foot, burnt with
cigarettes, elctric [sic] shocked, beaten with swagger canes,
pistol and riffle [sic] whipped, stripped nude” and sodomized
with “swagger canes” and “dirty bottles”. After this incident,
Oshodi returned to the United States.
B. Professor Mitchell’s and Oshodi’s Testimony
Professor Mitchell, a Nigerian expert, testified that “a
member of NANS who has been in political exile and who is
742 OSHODI v. HOLDER
regarded as being an opponent of the Nigerian government
would likely be detained and tortured should he be returned.”
Professor Mitchell noted that a member of the UPN “wouldn’t
have nearly the same difficulty he would be [sic] as a member
of NANS”, but that it would be “horrific” for Oshodi to return
to Nigeria based on “the treatment of people who have been
in detention, especially who return under those circumstances
under a warrant . . .” When questioned about Oshodi’s father,
Professor Mitchell stated that he “could be mistaken”, but he
believed Oshodi’s father was living in “southern California”.
When Oshodi began to testify regarding his political
involvement and the political rally he attended, the IJ told
Oshodi he had read Oshodi’s application and did not need
Oshodi’s testimony “line by line”. Oshodi then testified about
his political activities, and that he believed he would “be tor-
tured, detained, [and] most likely killed” if he returned to
Nigeria.
During cross-examination, Oshodi stated that his father was
deceased, and that he signed the sworn statement stating that
his father was involved in politics instead of his “granddad”
because he was rushed. When asked about why his name was
not on the deed to the Nigerian property he said was confis-
cated, Oshodi answered that the “deed never transferred to
[his] name”, but he paid taxes on the property and received
income from it.
On re-direct examination, Oshodi explained that he used
aliases to “hide [his] identity from Nigerians”, and that his
last name is well known in Nigeria. When questioned by the
IJ, Oshodi stated that his father had been “back and forth”
from Nigeria, that he only listed three siblings on his applica-
tion because “some of [his siblings] are half brothers”, and
that Larry, his half-brother, was in court during the removal
proceedings, but did not submit a statement to the court.
OSHODI v. HOLDER 743
C. The IJ’s and BIA’s Decisions
The IJ determined that Oshodi was not credible. The IJ
concluded that Oshodi’s “acknowledged use of made up false
names all cast doubt upon his forthrightness.” The IJ also
relied on the fact that Oshodi complained that a “substantial
amount of his property was confiscated in Nigeria”, but later
“admitted that the properties were not in his name and that the
deed was never transferred.” The IJ further noted that Oshodi
failed “to satisfactorily explain whether his father was living
or deceased.” Oshodi also stated in a sworn statement to
immigration authorities that he feared harm in Nigeria
because of his “dad”, but then later testified that he said
“granddad” and that the discrepancy was due to being rushed
into signing the document without reading it.
The IJ observed that there “were also notable omissions
and discrepancies between [Oshodi’s] application and his tes-
timony” regarding his siblings. Namely, Oshodi only listed
three out of ten siblings on his application. He attempted to
explain the omission by asserting that he thought he was sup-
posed to put full siblings on the application despite the fact
that two of the three siblings were half-siblings.
The IJ further noted that Oshodi “claimed that his father
had regularly come and gone from Nigeria”, which under-
mined Oshodi’s claim that “he would be identified and
detained in Nigeria because of his name.” The IJ also
observed that Oshodi’s brother was sitting in court during the
entire proceeding and failed to testify or submit an affidavit
to corroborate Oshodi’s claims. The IJ concluded that Oshodi
should have “provid[ed] evidence that corroborat[ed his] testi-
mony” and denied Oshodi’s requests for asylum, withholding
of removal, and relief under the CAT.2
2
The IJ admitted a substantial amount of evidence, including the follow-
ing: Oshodi’s testimony; Oshodi’s asylum application and supporting dec-
laration; a police record from this country; a medical report; a psychiatric
744 OSHODI v. HOLDER
The BIA upheld the IJ’s adverse credibility determination
and dismissed Oshodi’s appeal. Oshodi then petitioned this
court for review, and we remanded the case to the BIA to ana-
lyze and consider: “a) the impact of the REAL ID Act on the
BIA’s finding that petitioner’s claims for relief and protection
were not sufficiently corroborated; b) the legislative history of
the REAL ID Act’s credibility provisions, and its impact upon
the immigration Judge’s [sic] credibility determination; and c)
any other issues the BIA deems appropriate to address if it
chooses to permit further briefing from counsel.”
On remand, the BIA concluded that the REAL ID Act codi-
fied the BIA’s corroboration requirements and that Oshodi
failed to provide corroborating evidence. The BIA further
considered the fact that the REAL ID Act changed the “heart
of the claim” analysis to a “totality of the circumstances”
analysis and found “no clear error in the Immigration Judge’s
adverse credibility finding . . .” Oshodi filed a timely petition
for review.
II. STANDARD OF REVIEW
“The decision that an alien has not established eligibility
for asylum or withholding of removal is reviewed for substan-
tial evidence.” Malkandi v. Holder, 576 F.3d 906, 912 (9th
Cir. 2009), as amended (citation and internal quotation marks
omitted). “Under the substantial evidence standard, adminis-
trative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
Id. (citation and internal quotation marks omitted).
evaluation report; letters from Oshodi’s family; and country conditions
reports. The IJ admitted the following evidence for identification purposes
only due to a lack of authentication: Nigerian police reports; Oshodi’s
1981 hospital report; Oshodi’s mother’s 1968 death certificate; Oshodi’s
real estate documents; and Oshodi’s relatives’ letters regarding his open
warrant.
OSHODI v. HOLDER 745
“Under the substantial evidence standard, we may reverse
a BIA credibility determination only if the evidence that the
petitioner presented was so compelling that no reasonable
factfinder could find that the petitioner was not credible.” Id.
at 917 (citation, alteration, and internal quotation marks omit-
ted). “Where the BIA has reviewed the IJ’s decision and
incorporated portions of it as its own, we treat the incorpo-
rated parts of the IJ’s decision as the BIA’s.” Id. (citation and
alteration omitted).
III. DISCUSSION
A. The BIA’s Inquiry Upon Remand
Oshodi contends that we should remand because the BIA
failed to conduct an inquiry in accordance with our prior man-
date.
On remand, a court is “free as to anything not foreclosed
by the mandate, and, under certain circumstances, an order
issued after remand may deviate from the mandate if it is not
counter to the spirit of the circuit court’s decision.” United
States v. Perez, 475 F.3d 1110, 1113 (9th Cir. 2007) (citation
omitted).
[1] Addressing the first remand issue, the BIA determined
that the REAL ID Act codified the BIA’s corroboration stan-
dards, which place the burden on the applicant to provide cor-
roborative evidence when the trier of fact requires
corroboration. The BIA found that the IJ was correct in con-
cluding that Oshodi failed to meet this burden, and referenced
the section of the IJ’s decision that analyzed in detail all
aspects of Oshodi’s claim that lacked corroborating evidence.
Therefore, we conclude that the BIA sufficiently considered
the REAL ID Act’s impact on the BIA’s finding that Oshodi’s
claims were not sufficiently corroborated.
746 OSHODI v. HOLDER
[2] As to the second remand issue, Oshodi is correct in
noting that the BIA did not extensively examine the REAL ID
Act’s legislative history; however, the BIA’s analysis did not
run counter to “the spirit” of our mandate. See Perez, 475
F.3d at 1113. Specifically, the BIA relied on our observation
in Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005),
that Congress provided “clear direction to IJs that there is to
be no presumption of credibility,” which means that “only the
most extraordinary circumstances will justify overturning an
adverse credibility determination.”3 The BIA also relied on
Don v. Gonzales, 476 F.3d 738, 741 n.4 (9th Cir. 2007), to
address the fact that the REAL ID Act removed the “heart of
the claim” requirement. The BIA concluded that the changes
in the REAL ID Act supported the IJ’s adverse credibility
finding despite the fact that some of the inconsistencies did
not necessarily pertain to the “heart” of Oshodi’s claim. We
conclude that the BIA sufficiently followed the mandate. See
Perez, 475 F.3d at 1113.
B. The Corroborating Evidence Requirement
Oshodi asserts that the IJ erred by basing his credibility
determination on Oshodi’s failure to produce corroborating
evidence. Oshodi contends that the REAL ID Act and due
process required the IJ to give Oshodi notice that he needed
to provide corroborating evidence.
[3] We need not resolve this issue here, as the IJ provided
Oshodi adequate notice.4 Oshodi was advised:
3
Oshodi places great weight on the fact that Jibril pre-dated the REAL
ID Act. However, in Jibril we specifically addressed the REAL ID Act,
noting that we would have been “obliged to deny Jibril’s petition” if the
REAL ID Act were in effect. Jibril, 423 F.3d at 1138 n.1.
4
Our recent decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011),
purports to hold that the REAL ID Act requires that “an IJ must provide
an applicant with notice and an opportunity to either produce the evidence
or explain why it is unavailable before ruling that the applicant has failed
OSHODI v. HOLDER 747
Put down all the reasons in detail, that you claimed
to have been harmed, your fear of harm, the circum-
stances of it on the application. If you have corrobo-
rative evidence of your claim, I do strongly
recommend that you submit it, especially under
recent changes of the law and especially since you
never previously applied. I’m letting you know that
corroborative evidence is recommended. Do you
understand it?
Even assuming that the REAL ID Act mandates notice that
corroborating evidence will be required, we hold that the IJ
did not err by basing his credibility determination on Oshodi’s
failure to produce corroborating evidence in this case.
C. The Totality of the Circumstances Standard
[4] “Under the REAL ID Act, in determining a petitioner’s
credibility, an IJ should consider the totality of the circum-
stances, and all relevant factors[.]” Malkandi, 576 F.3d at 917(citation, alteration, and internal quotation marks omitted).
These factors include:
the demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the
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 con-
sistency of each such statement, the consistency of
in his obligation to provide corroborative evidence and therefore failed to
meet his burden of proof,” id. at 1090. However, as that issue was not
“presented for review” to the Ren panel, the quoted passage is dicta and
need not be considered here. Barapind v. Enomoto, 400 F.3d 744, 750-51
(9th Cir. 2005) (en banc) (per curiam).
748 OSHODI v. HOLDER
such statements with other evidence of record
(including the reports of the Department of State on
country conditions), and any inaccuracies or false-
hoods in such statements, without regard to whether
an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant’s claim, or any other rele-
vant factor.
Id. (citation omitted).
[5] Contrary to Oshodi’s accusation, the IJ did not rely on
“rank speculation and conjecture and inconsequential fac-
tors.” Rather, the IJ considered the totality of the circum-
stances, including Oshodi’s use of false names; his
inconsistent statements regarding his Nigerian property; his
inconsistency regarding whether his father was living or
deceased; his conflicting testimony regarding whether his
father or “grandad” was involved in politics; his failure to list
all ten siblings on his application; the fact that his father trav-
eled to and from Nigeria; and his failure to provide corrobo-
rating evidence, including the fact that Oshodi’s brother was
present at the removal proceedings and did not testify or sub-
mit an affidavit. We conclude that the IJ’s adverse credibility
determination was well supported by this substantial evi-
dence. See Malkandi, 576 F.3d at 917, 920.
D. Oshodi’s Due Process Allegations
1. Oshodi’s Testimony
Oshodi asserts that the IJ prevented him from testifying
about his past torture and persecution, thereby depriving him
of due process.
[6] Although the IJ interrupted Oshodi at the outset of his
testimony, Oshodi continued to testify about his political
activities; his fear of persecution should he return to Nigeria;
his use of aliases; the notoriety of his last name; his father’s
OSHODI v. HOLDER 749
ability to travel “back and forth” from Nigeria; and why he
only listed three siblings on his application. On cross-
examination, Oshodi reiterated the facts of his asserted perse-
cution; the fact that his father was deceased; his “granddad’s”
involvement in politics; and his Nigerian property. Therefore,
we conclude that the IJ did not prevent Oshodi from testify-
ing.
2. Medical and Psychological Reports
Oshodi argues that the IJ failed to consider the medical and
psychological reports that corroborated his claims, thereby
depriving him of due process.
“[A]n alien attempting to establish that the [BIA] violated
his right to due process by failing to consider relevant evi-
dence must overcome the presumption that it did review the
evidence.” Larita-Martinez v. INS, 220 F.3d 1092, 1095-96
(9th Cir. 2000). The BIA need not “refer to each exhibit.”
Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). The BIA
need only “provide a comprehensible reason for its decision
sufficient for us to conduct our review and to be assured that
the petitioner’s case received individualized attention.” Id.[7] The IJ acknowledged that Oshodi “presented testimo-
nial and documentary evidence in support of his claims for
relief”, and recognized that “there [was] enough evidence
within the record to suggest past persecution and/or a well-
founded fear of future persecution if parts of [Oshodi’s] testi-
mony [were] to be accepted.” The IJ specifically addressed
Oshodi’s claims in a twenty-page decision. Likewise, the BIA
noted with approval that the IJ “provided detailed factual
findings regarding the testimony of the witnesses and the evi-
dence presented, and that he reviewed the evidence of record
as a whole.” Therefore, we conclude that Oshodi has not over-
come the presumption that the BIA reviewed Oshodi’s evi-
dence, and no due process violation occurred. See Larita-
Martinez, 220 F.3d at 1095-96.
750 OSHODI v. HOLDER
3. Lack of Authentication
Oshodi contends that the IJ wrongfully excluded Nigerian
police reports, his 1981 hospital report, and his mother’s 1968
death certificate from the record due to lack of authentication,5
thereby depriving him of due process.
[8] “[A]n immigration petitioner may seek to authenticate
a public document by any established means—including
through the petitioner’s own testimony if consistent with the
Federal Rules of Evidence . . .” Vatyan v. Mukasey, 508 F.3d
1179, 1181 (9th Cir. 2007). The IJ recognized that authentica-
tion is “not necessarily limited to the regulatory framework
according to Ninth Circuit decision”, but noted that Oshodi
had not proffered “any other authentication of the materials”.
Therefore, we determine that Oshodi failed to properly
authenticate the documents by certification or by his testi-
mony. See Vatyan, 508 F.3d at 1181. Furthermore, any error
was harmless because the BIA and IJ did not rely on Oshodi’s
claim of past medical treatment approximately 25 years ago
or the cause of death of his mother nearly 40 years ago to
assess Oshodi’s credibility. See Tucson Herpetological Soci-
ety v. Salazar, 566 F.3d 870, 880 (9th Cir. 2009) (recognizing
“that the harmless error doctrine may be employed only when
a mistake of the administrative body is one that clearly had
no bearing on the procedure used or the substance of [the]
decision reached”) (citations and internal quotation marks
omitted).
E. Oshodi’s CAT Claim
Oshodi asserts that the BIA and IJ erred by failing to con-
duct a separate analysis of Oshodi’s CAT claim, including
consideration of Professor Mitchell’s testimony; country con-
5
Oshodi represents that he was pro se when the IJ declined to admit
these documents. However, Oshodi’s attorney was present when the IJ
made his ruling.
OSHODI v. HOLDER 751
ditions; a Nigerian newspaper article identifying Oshodi as an
opponent to the current regime; and the medical and psycho-
logical reports.
The standards for asylum and relief under the CAT “are
distinct and should not be conflated.” Farah v. Ashcroft, 348
F.3d 1153, 1157 (9th Cir. 2003). Under the CAT, a
“[p]etitioner must establish that it is more likely than not that
he would be tortured if returned to the proposed country of
removal.” Soriano v. Holder, 569 F.3d 1162, 1167 (9th Cir.
2009) (citation omitted).
[9] The IJ specifically addressed Oshodi’s CAT claim,
including a review of Professor Mitchell’s testimony and
Nigeria’s country conditions. Articulating the appropriate
standard of proof, the IJ concluded that “although there may
be a possibility of torture, [the IJ did] not find that the evi-
dence shows that it is more likely than not.” On appeal, the
BIA need only “provide a comprehensible reason for its deci-
sion . . .” Ghaly, 58 F.3d at 1430. The BIA incorporated the
IJ’s findings and concluded that Oshodi did not present “any
persuasive arguments on appeal as to why [the BIA] should
reverse the [IJ] . . .” Therefore, we determine that the BIA
decision, which incorporated the IJ’s findings, provided a suf-
ficiently comprehensible explanation for denial of relief under
the CAT, with its attendant higher burden of proof. See Sori-
ano, 569 F.3d at 1167; see also Malkandi, 576 F.3d at 917(approving incorporation of the IJ’s findings).
IV. CONCLUSION
The BIA sufficiently complied with our mandate because
it considered the REAL ID Act’s impact on the IJ’s finding
that Oshodi’s claims were not sufficiently corroborated. Even
assuming that the REAL ID Act mandates notice that corrob-
orating evidence will be required, such notice was provided
in this case. The IJ’s adverse credibility determination was
752 OSHODI v. HOLDER
supported by substantial evidence and Oshodi’s due process
rights were not violated.
PETITION DENIED.