CA9 on CAT, Credibility, Due Process: Oshodi v. Holder (En Banc)

"Olakunle Oshodi petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision finding him not credible and denying his application for withholding of removal and protection under the Convention Against Torture (“CAT”).  Oshodi argues, inter alia, that the IJ violated his due process rights by denying him the opportunity to testify about the events of his past persecution in Nigeria while also finding him not credible and failing to give him notice before relying on lack of corroboration in the adverse credibility decision.  He also argues that the IJ’s credibility analysis violated the REAL ID Act and was not supported by substantial evidence. A three-judge panel of this court rejected Oshodi’s due process arguments and, reaching the merits of the IJ’s credibility determination, concluded that it complied with the REAL ID Act and was supported by substantial evidence.  We granted rehearing en banc.  We hold that the IJ violated Oshodi’s due process rights at his removal hearing by cutting off his testimony on the events of his alleged past persecution in Nigeria that are the foundation of Oshodi’s withholding of removal and CAT claims. The IJ’s refusal to admit Oshodi’s testimony is particularly troublesome since Oshodi was denied relief solely on the basis of the IJ’s adverse credibility finding. It is well established that live testimony is critical to credibility determinations. Thus, the IJ’s restrictions on Oshodi’s testimony precluded the IJ from conducting a proper “totality of the circumstances” credibility analysis. Because we conclude that Oshodi did not receive a full and fair hearing as guaranteed by the Fifth Amendment, we grant the petition and remand for a new hearing." - Oshodi v. Holder, Aug. 27, 2013.  [Hats off to Marc Van Der Hout and team!]