(CN) - The bid for asylum of a Kenyan accusing police of torture need not hinge on the arrest documents of those very police stations, the 9th Circuit ruled Tuesday.
Sylvester Otieno Owino, a former international track-and-field competitor from Kenya, came to the United States in 1998 on a student visa. He had previously owned a bike shop in Jera, Kenya, where he and others would discuss political issues, criticize the government and advocate for women's rights.
This allegedly got Owino in hot water with the local police in 1996. He claimed in his petition for asylum that police in Jera held him for 10 days and beat him up. Upon his release, Owino says he headed for Nairobi, the nation's largest city, where he enrolled in college and began competing internationally in track and field.
Owino claimed that his success in the sport attracted the media, and that the Kenyan police came after him again in 1997 after he criticized them in a press interview. They held him for three weeks, beat him up, and "killed a detainee in his presence and warned that they would kill him, too, if he reported what he had seen," according the 9th Circuit's retelling of events.
"They also planted his fingerprints on a gun, threatening to use it as evidence against him if he said anything," the ruling states.
Owino applied for a student visa and transferred to a school in San Diego, but immigration officials moved to kick him out five years later after a conviction for second-degree robbery in California. He applied in 2004 for asylum, withholding of removal and protection under the Convention Against Torture.
An immigration law judge found Owino ineligible for asylum in 2006, however, citing the robbery conviction and a lack of credibility. Though the Board of Immigration Appeals (BIA) found the evidence for the latter itself unsupported, it concluded that Owino had not shown that he was likely to be tortured if returned home.
Owino attempted to introduce into evidence three letters that allegedly confirmed his arrests in 1997 and 1998. He said his cousin had come by letters from the Bar Ober police post that confirmed Owino had been in custody for 10 days in 1997. The cousin also allegedly had a letter from the Kilimani police station in Nairobi stating that an arrest warrant for Owino was issued in May 1998.
When queried by State Department investigators from the U.S. Embassy in Nairobi, however, officers at both the Bar Ober and Kilimani stations called the letters fake.
The BIA denied Owino's request to present the letters and dismissed the case, but the 9th Circuit resurrected it on appeal in 2009.
The federal appeals court sent the case back to the immigration law judge to "determine the merits of Owino's application under the REAL ID Act's standards," which the judge had not done the first time around.
On remand, the immigration law judge denied Owino's request to admit the new evidence, finding the letters unauthenticated and Owino short on credibility.
The BIA dismissed the second appeal in 2012, but a unanimous panel with the 9th Circuit granted Owino review on Tuesday and revived the case once again.
The State Department violated federal disclosure laws by "delivering Owino's arrest documents directly to Kenyan police officers" without his consent, the panel found, noting Owino could have an entirely new claim under the Convention Against Torture.
"Prior to the disclosure in 2010, Owino's asylum case had been discussed in a 2009 Daily Journal article, and the testimony of Eric Owino and the letter from Michael Nasubo indicated that people in Kenya were aware of the article," the unsigned ruling states. "In light of this, Kenyan police could have interpreted inquiries by U.S. government investigators about Owino's arrests and warrants as confirmation of the information in the article and reasonably inferred that Owino had applied for asylum on the basis of police abuse."
Remanding the petition, the panel also noted that the agency had neglected "to justify its rejection of evidence indicating that Owino had been arrested previously and is at risk of being arrested again."
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