Owino v. Holder

When a petitioner seeks asylum relief, despite having a felony, the Immigration Judge must take into account the evidence that indicates the possibility of future torture if the petitioner returns to his or her country of origin.

Sylvester Owino, a Kenyan native, was granted a student visa in the United States in 1998. In 2003, he was convicted of robbery in California. A year later, the Department of Homeland Security initiated removal proceedings. The removal proceedings were halted however, when Owino filed for asylum under the Convention Against Torture Act (“CAT”). Owino alleged that while he was living in Kenya, he openly criticized the Kenyan police force and was a strong advocate for women’s rights. On previous occasions, the Kenyan police arrested him, detained him and beat him for his open criticism. After he entered the United States, he continued to contact various Kenyan newspapers to discuss his criticisms. One of the high-ranking individuals in the Kenyan police force has since warned Owino that he should “stay in the United States.” Despite the evidence that the Kenyan would harm Owino if he returned to Kenya, the Immigration Judge (“IJ”) ruled that he was ineligible for asylum because of his robbery conviction. Under the CAT, the relief seeker must show that “it is ‘more likely than not that he or she would be tortured if removed.'" Further, the Board of Immigration Appeals must consider all evidence that is relevant to the possibility that the individual will be tortured in the future. On appeal, the Ninth Circuit determined that when the IJ denied Owino’s petition for asylum, it failed to justify its rejection of certain evidence. Therefore, the panel determined that Owino’s argument had merit and may give rise to new relief under CAT. PETITION GRANTED; REMANDED.