Oladeji Omojuwa v. Loretta Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLADEJI AMOS OMOJUWA, No. 15-73276
Petitioner, Agency No. A208-116-914
v.
ORDER
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Oladeji Amos Omojuwa, a native and citizen of Nigeria, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, applying the standards created
by the REAL ID Act. Ren v. Holder, 648 F.3d 1079, 1083-84 (9th Cir. 2011).
We review for abuse of discretion the denial of a continuance, Vargas-Hernandez
v. Gonzales, 497 F.3d 919, 923 (9th Cir. 2007), and review de novo claims of due
process violations in removal proceedings, Ibarra-Flores v. Gonzales, 439 F.3d
614, 620 (9th Cir. 2006). We deny in part and grant in part the petition for
review, and we remand.
The IJ did not abuse his discretion in denying a further continuance for
Omojuwa to obtain counsel. See Biwot v. Gonzales, 403 F.3d 1094, 1099 (9th Cir.
2005) (listing factors to be considered when deciding what constitutes a reasonable
time to obtain counsel). Further, Omojuwa’s contention that the IJ violated his
due process rights by not providing an Akure interpreter fails because he has not
established prejudice. See Aden v. Holder, 589 F.3d 1040, 1046-47 (9th Cir.
2009).
Substantial evidence does not support the agency’s adverse credibility
determination based on a lack of detail in Omojuwa’s testimony regarding his bank
protocols, or his non-responsiveness. See Ren, 648 F.3d at 1085-89 (credibility
findings not supported by the record). Substantial evidence does not support the
agency’s determination that, even if credible, Omojuwa did not establish past harm
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rising to the level of persecution where the agency failed to consider death threats
against Omojuwa and the death of his brother in evaluating the aggregate harm.
See Andriasian v. INS, 180 F.3d 1033, 1042 (9th Cir. 1999) (death threats, made all
the more credible by the fact that the perpetrators had just murdered petitioner’s
neighbor, would alone be enough to establish past persecution). Further,
substantial evidence does not support the agency’s determination that Omojuwa
failed to show mistreatment by the government or individuals the government is
unwilling or unable to control where Omojuwa testified that his attacker informed
him he had been sent by the government, had a police escort, and showed
Omojuwa a government ID card. See Singh v. Gonzales, 494 F.3d 1170, 1173
(9th Cir. 2007) (remanding where the BIA failed to consider evidence).
Thus, we grant the petition as to Omojuwa’s asylum, withholding of
removal, and CAT claims, and remand, on an open record, for further proceedings
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18
(2002) (per curiam); Soto-Olarte v. Holder, 555 F.3d 1089, 1093-96 (9th Cir.
2009).
Omojuwa’s motion to extend time to file a reply brief and motion to appoint
counsel are denied as moot.
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Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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