Full 9th Circuit Divided on Nigerian Torture Tale
(CN) - A Nigerian man who says his political work led to his arrest and torture deserves to tell his whole story before being deported, the 9th Circuit ruled Tuesday.
Olakunle Oshodi has lived in the United States since 1981, when he allegedly escaped violent persecution by the Nigerian government for his and his mother's long role in opposition politics. He says he fled the country after police officers twice detained and tortured him.
"The officers shot him in the foot, burnt him with cigarettes, shocked him with electricity, and beat him with their pistols," according to the ruling. "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."
Oshodi settled in the United States where he eventually married a citizen and had a child. Faced with deportation many years later, he applied too late for asylum, and an immigration judge denied his petition for withholding of removal and protection under the Convention Against Torture (CAT). The judge, and the Board of Immigration Appeals, found Oshodi less than credible and his tale of political persecution unconvincing. A three-judge panel of the 9th Circuit affirmed, but the full appellate court later agreed to reconsider the case.
The en banc panel granted Oshodi a new hearing on his CAT claims Tuesday. The 11-judge panel, with three judges dissenting, found that the immigration judge had improperly cut short Oshodi's oral testimony, telling him not to repeat evidence already included in his written declaration.
"By precluding Oshodi from testifying about the critical events in his application, the IJ short-circuited his ability to judge accurately Oshodi's credibility," Judge Richard Paez wrote for the majority. "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."
The ruling inspired a difference of opinion, to say the least, among the judges about the role of oral testimony in administrative hearings.
In a scorching dissent, Chief Judge Alex Kozinski warned that the decision would change the very nature of all administrative hearings.
"The majority holds that the Constitution gives would-be immigrants a right to unfettered oral testimony," wrote Kozinski, who was joined in dissent by Judges Johnnie Rawlinson and Jay Bybee. "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.'"
On Oshodi's case specifically, Kozinski said the majority "manufactures this constitutional melodrama out of whole cloth."
The immigration judge had not illegally limited Oshodi's testimony but had merely hurried him along and warned against repetition, Kozinski said, adding that Oshodi "has a long history of prevarication."
"Today's ruling impairs the ability of immigration judges to manage their crushing caseload, and benefits fabulists and charlatans at the expense of the real victims of persecution," he wrote. "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."