Oshodi v. Holder

An applicant’s oral testimony is “an essential aspect of the asylum adjudication process” and refusal to hear an applicant’s testimony is a violation of due process.

Olakunle Oshodi was removed to Nigeria after his student visa expired. He claims he was persecuted and tortured by Nigerian authorities on at least two occasions because of his political activities. Oshodi decided he could no longer safely remain in Nigeria and fled to the United States where he sought asylum. The Board of Immigration Appeals (“BIA”) affirmed 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 argued that the IJ violated his due process rights by denying him the opportunity to testify about past persecution in Nigeria. The IJ cut off Oshodi’s testimony and directed him to only testify to events not discussed in his asylum application, preventing testimony about the persecution and thereafter found Oshodi not credible. Individuals in removal proceedings are entitled to a full and fair hearing which includes the opportunity to present evidence and testimony in support of the application. Oshodi also argued that the IJ’s credibility analysis violated the REAL ID Act and was not supported by substantial evidence. The Ninth Circuit panel rejected his arguments and granted rehearing en banc. This en banc panel stressed the importance of testimony in determining credibility by observing “demeanor, candor, or responsiveness” while testifying about the alleged events. The en banc panel held that the IJ violated Oshodi’s due process rights by cutting off his testimony regarding persecution which was the center of Oshodi’s withholding of removal and CAT claims. PETITION GRANTED, in part, and REMANDED.