The Ninth Circuit Court of Appeals decided today that a Nigerian man, Olakunle Oshodi, will be allowed to testify fully at his deportation hearing about the torture he suffered as a political dissident at the hands of Nigerian officials before he fled his homeland.
The eleven judge panel, sans three dissenters, held that the Immigration Judge (IJ) and Board of Immigration Appeals (BIA) violated Oshodi’s due process rights when they refused to allow him to testify orally as to his past persecution in Nigeria. The BIA and judge originally decided that the material in Oshodi’s written statement was not credible and denied him the opportunity to tell his story, despite the fact that “[i]t is well-established that live testimony is critical to credibility determinations.”
The testimony the lower courts and dissenting judges did, and would, refuse to hear what happened the first time an unsympathetic immigration judge deported him, back in 1978:
[A]fter 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 int he 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. At that point, Oshodi decided he could no longer safely remain in Nigeria and fled to the United States.
Oshodi returned to the United States in 1981, eventually married a citizen and had a child. Despite that, he faced deportation years later and then applied for political asylum. The immigration judge instructed Oshodi’s attorney at his deportation hearing that he was not to repeat anything in his written statement, which included all the instances of the torture, then declared him not to be a credible witness and removed his protection under the Convention Against Torture (CAT). The Board of Immigration affirmed this decision, declaring that the written record was sufficient to decide his credibility.
Judge Richard Paez, writing for the majority, said that “[b]y 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 his dissent, Chief Judge Alex Kozinski seemed more concerned with caseload than case-law: “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 did not explain how “fabulists and charlatans” could be differentiated from “real victims of persecution,” relying on the immigration judge’s report on Oshodi’s credibility — a report generated by a hearing that the majority found violated due process.
["Two men prepare to torture and interrogate a subject" via Shutterstock.]
Scott Eric Kaufman is the proprietor of the AV Club's Internet Film School and, in addition to Raw Story, also writes for Lawyers, Guns & Money. He earned a Ph.D. in English Literature from the University of California, Irvine in 2008.
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