PAEZ, Circuit Judge:
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").
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. We therefore do not reach Oshodi's other arguments.
Olakunle Oshodi, a Nigerian national, has resided in the United States since 1981. He is married to a United States citizen, and has a United States citizen daughter.
In a declaration attached to his asylum application, Oshodi stated that he was exposed to Nigerian politics, and related persecution, at an early age through his politically active mother. According to his declaration, on one occasion his mother was badly burned by molotov cocktails thrown at her by government agents. Soon after, she was killed by officers of General Gowon, the head of state from 1966 to 1975.
But it was not until his return to Nigeria in 1981 that Oshodi experienced direct persecution by the government. As Oshodi recounted in his declaration, he reentered Nigerian politics upon his return by joining the Unity Party of Nigeria, a political party affiliated with NANS. At his first rally, police officers forcefully disbanded the peaceful protest with tear gas and swagger canes. Although Oshodi escaped, many of his colleagues were detained and tortured. In the following weeks, however, Oshodi experienced two incidents of severe persecution at the hands of Nigerian officials.
On February 8, 1981, Oshodi and his colleague Doyin Odunuga were stopped at a police checkpoint. When the police officers saw their political propaganda, the police immediately ordered them out of the car, at which point Odunuga sped away. The officers shot at the car, hit Odunuga, and the car crashed. The officers pulled Oshodi and Odunuga out of the car and beat them. Odunuga was eventually sent to the hospital, where he died from his injuries eight days later. Meanwhile, Oshodi was detained in jail and interrogated. According to Oshodi's declaration, the officers "tortur[ed him] with different techniques," beat him unconscious with swagger canes, and deprived him of food for two days. Ultimately, his uncle paid a bribe of $2,000 to obtain his release but Oshodi was assigned to weekly monitoring, the violation of which would trigger an "open warrant" for his arrest. Because of his continued political activity, Oshodi violated the monitoring requirement.
The following week, after 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 in the 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, where passers-by discovered him and took him to the hospital. At that point, Oshodi
In light of these events in Nigeria, Oshodi sought asylum, withholding of removal, and CAT relief; however, at his removal hearing, Oshodi was precluded from testifying about these incidents of persecution and torture. After Oshodi began to discuss the first political rally he attended, a precursor to the two events of severe persecution and torture in his declaration, the IJ cut off the direct examination by his attorney. The IJ directed Oshodi to limit his testimony to events not discussed in his asylum application, apparently on the notion that the declaration was sufficient for him to judge the veracity of the events as described therein:
Oshodi's attorney followed the IJ's directive.
The remainder of Oshodi's direct testimony was devoted mostly to clarifying a point from the expert's testimony, that it was his membership in the Unity Party of Nigeria, not NANS, that led to his persecution in 1981. At one point, Oshodi's attorney again attempted to question him about his encounters with the Nigerian police. As Oshodi began to answer, the IJ interjected, "Counsel, do you have a specific question for the respondent to answer because right now I don't know what he's
During cross-examination, the government's attorney asked Oshodi several yes or no questions about the events discussed in his declaration, but did not allow him to explain these events:
The government quickly moved on without affording Oshodi the opportunity to elaborate on what actually happened. The IJ had already warned Oshodi to answer the government's questions directly and not to "expand" on them. The remainder of his testimony did not address the substance of his asylum claim, but focused on peripheral issues related to his credibility, such as the number of his siblings, his failure to apply for asylum earlier, and his prior criminal record.
The IJ recognized that Oshodi's application, if taken as true, established past persecution. The IJ, however, found Oshodi not credible — without ever hearing Oshodi testify about the events involving his persecution — on the basis of his use of aliases, his failure to provide the corroborating evidence, and various inconsistencies between his testimony, his initial credible-fear interview, and his asylum application. On this basis, he denied Oshodi's withholding of removal and CAT claims. The BIA affirmed the IJ's decision and rejected Oshodi's due process claim that the IJ denied him an opportunity to testify fully in support of his application for relief. The BIA reasoned that there was no due process violation because, following the IJ's directive limiting Oshodi's testimony, Oshodi's attorney asked Oshodi if he had anything to add to his written application and Oshodi briefly testified further about additional, albeit peripheral, details of his application.
Unlike challenges to the merits of an IJ's decision, which we review under
Indeed, where an applicant is not represented, the IJ has an affirmative duty to ensure that the record is fully developed for the benefit of the applicant. Jacinto v. INS, 208 F.3d 725, 734 (9th Cir.2000). The statutory and regulatory regime also protects an alien's right to present evidence and testimony on his behalf in removal proceedings, including his own testimony. 8 U.S.C. § 1229a(b)(4)(B) ("[T]he alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government...."); 8 C.F.R. § 1240.1(c) ("The immigration judge shall receive and consider material and relevant evidence....").
In any contested administrative hearing, admission of a party's testimony is particularly essential to a full and fair hearing where credibility is a determinative factor, as it was here. Mathews v. Eldridge, 424 U.S. 319, 343-44, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (noting that where credibility and veracity are critical to the decision-making process "written submissions are a wholly unsatisfactory basis for decision" (quoting Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970))). Contrary to this essential aspect of a full and fair hearing, Oshodi was not provided a reasonable opportunity to present evidence on his behalf. In particular, the IJ precluded him from providing critical testimony about the events of persecution that are the foundation of his withholding of removal and CAT claims. Oshodi's declaration relates that he was subjected to brutal torture, including detention without food, severe beatings, sodomy, and a gun shot to his foot. He claims that he was stripped naked, doused with gasoline, and threatened with being burned alive. But he testified to none of those things because of the IJ's directive. Instead, the testimony circled around peripheral issues such as his relationship with his estranged father and the number of his siblings and half-siblings. On this record, the IJ determined that Oshodi was not credible and thus the events related in his declaration should be deemed not credible as well.
The importance of an asylum or withholding applicant's testimony cannot be overstated, and the fact that Oshodi submitted a written declaration outlining the facts of his persecution is no response to the IJ's refusal to hear his testimony. An applicant's testimony of past persecution and/or his fear of future persecution stands at the center of his claim and can, if credible, support an eligibility finding
The BIA has held that it is reversible error for an IJ to adjudicate an alien's application for asylum and withholding of removal without at least placing the applicant under oath and questioning him "as to whether the information in the written application is complete and correct." Matter of Fefe, 20 I. & N. Dec. 116, 118 (BIA 1989). Moreover, the BIA explained that in nearly all cases, a more in-depth oral examination of the asylum applicant is pivotal to a fair asylum proceeding: "In the ordinary course ... we consider the full examination of an applicant to be an essential aspect of the asylum adjudication process for reasons related to fairness to the parties and to the integrity of the asylum process itself." Id. The BIA stressed the importance of a full examination in addition to a written application: "It is difficult for an alien to satisfy [the asylum] standard unless he presents testimony at his hearing which is consistent with and corroborates any previous written statements in his [application]." Id.
Thus, by refusing to allow Oshodi to testify to the contents of his written application, the IJ violated Oshodi's due process right to present oral testimony about the events at the heart of his claim for withholding of removal, testimonial evidence that the BIA has recognized is central to the "integrity of the asylum process itself." Id. The foregoing was precisely our holding in Colmenar, 210 F.3d at 971-72. In that case, as in this one, the IJ "refused to let Colmenar testify about anything that was included in his written application." Id. at 971. We held that the "IJ's conduct was directly contrary to the BIA's decision in Matter of Fefe" and found that the IJ improperly precluded Colmenar from presenting evidence on his behalf, in violation of due process. Id. at 971-72.
We similarly found a due process violation in Zolotukhin v. Gonzales, 417 F.3d 1073, 1075-76 (9th Cir.2005), where the IJ "den[ied] Zolotukhin a full and fair opportunity to present evidence on his behalf" by cutting off Zolotukhin's testimony about his family's past persecution in Russia and refusing to admit testimony of family members and an expert. On other occasions, we have found a due process violation where the IJ did not exclude any of the applicant's testimony — which, as established above, has special significance — but excluded other expert or corroborating testimony. See Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1057-58 (9th Cir. 2005) (holding that the IJ's refusal to hear petitioner's experts' testimony violated due process); Kaur v. Ashcroft, 388 F.3d 734, 737-38 (9th Cir.2004) (holding that the IJ's exclusion of petitioner's son's testimony violated due process). The critical question is "[w]hether the IJ's actions prevented the introduction of significant testimony." Lopez-Umanzor, 405 F.3d at 1056. The answer here is clearly yes.
The basic premise that applicants for asylum and withholding of removal have a due process right to testify fully as to the merits of their application is not unique to our circuit. In Kerciku v. INS, 314 F.3d 913, 918 (7th Cir.2003) (per curiam), the Seventh Circuit made clear that when the TJ "bar[s] complete chunks of oral testimony
The IJ's refusal to hear Oshodi's full testimony with respect to the abuses he suffered in Nigeria is particularly unacceptable given that the basis for the IJ's denial of relief rested solely on an adverse credibility finding. In making a credibility determination, the IJ is to consider the "totality of the circumstances," including:
8 U.S.C. § 1158(b)(1)(B)(iii). Where, as here, the IJ does not allow the applicant to testify fully as to the merits of his application, the IJ's ability to make a credibility determination based on the above factors is severely hampered. The IJ did not have the opportunity to judge Oshodi's "demeanor, candor, or responsiveness" while testifying about the events of persecution and torture that he experienced, nor did the IJ have the ability to compare for consistency his oral presentation of those events to the way he described them in his written declaration. See id.
The importance of live testimony to a credibility determination is well recognized and longstanding. See, e.g., United States v. Thoms, 684 F.3d 893, 903 (9th Cir.2012) ("The longstanding and repeated invocations in caselaw of the need of district courts to hear live testimony so as to further the accuracy and integrity of the factfinding process are not mere platitudes. Rather, live testimony is the bedrock of the search for truth in our judicial system."); United States v. Mejia, 69 F.3d 309, 315 (9th Cir.1995) ("There can be no doubt that seeing a witness testify live assists the finder of fact in evaluating the witness's credibility."); see also United
Indeed, the rationale behind the substantial deference we give to agency credibility determinations is that IJs "are in the best position to assess demeanor and other credibility cues that we cannot readily access on review." Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir.2010); see also H.R.Rep. No. 109-72, at 167 (Conf. Rep. on REAL ID Act of 2005) ("An immigration judge alone is in a position to observe an alien's tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He [or she] is, by virtue of his [or her] acquired skill, uniquely qualified to decide whether an alien's testimony has about it the ring of truth." (quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985))). We defer to a trial court's credibility determinations for the same reason. See Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ("When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court's findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.").
In light of the foregoing, it makes sense that the only exception the BIA has recognized to its general rule that an applicant for asylum or withholding of removal should be fully examined on his application is when both parties stipulate that the testimony would be both consistent with the written statement and believable. Matter of Fefe, 20 I. & N. Dec. at 118. There was no such stipulation in this case, and the IJ did not find Oshodi's declaration believable.
By precluding Oshodi from testifying about the critical events in his application,
In Shrestha, we held that "an IJ [must] not cherry pick solely facts favoring an adverse credibility determination while ignoring facts that undermine that result." 590 F.3d at 1040. Here, however, the IJ paid little heed to the principle recognized in Shrestha. Although the IJ had the benefit of the government's cross-examination of Oshodi regarding the alleged inconsistencies in his application and other factors weighing against his credibility, the IJ did not have the benefit of Oshodi's testimony regarding the central events underlying his application. The IJ was unable to judge Oshodi's demeanor and the nature of his testimony while he testified about the events of his persecution, the veracity of which were critical to the merits of his application. The IJ cannot avoid considering all relevant factors and evidence in making a credibility determination by refusing to hear significant evidence in the first place. See id. ("[An] IJ cannot selectively examine evidence in determining credibility, but must present a reasoned analysis of the evidence as a whole." (quoting Hanaj v. Gonzales, 446 F.3d 694, 700 (7th Cir.2006))).
Despite the forgoing, the BIA rejected Oshodi's due process claim because, after the IJ's directive not to testify to the contents of his declaration, Oshodi's attorney asked him if he had anything further to add, and Oshodi testified to a few additional details. Oshodi's attorney, however, phrased his questions to Oshodi to comply with the IJ's directive and avoided eliciting testimony regarding the events discussed in his application: "Is there anything that you would like to add in addition to what was already previously submitted in your asylum application and your statement that you submitted to the Court?" In response, Oshodi reasonably avoided testifying about the events described in his application and used that opportunity only to clarify a detail discussed in his expert witness's testimony. At no point did the IJ modify or reconsider his earlier directive and affirmatively allow Oshodi to testify about the contents of his application.
Thus, although Oshodi's attorney elicited some additional testimony outside the scope of the restrictions imposed by the IJ, Oshodi was still precluded from testifying about the events described in his application. The end result of the IJ's restriction on Oshodi's testimony was that it "prevented the introduction of significant testimony," Lopez-Umanzor, 405 F.3d at 1056, that was critical to the merits of his application. In Colmenar, which presented a very similar factual scenario, we rejected the BIA's reasoning in this case. 210 F.3d at 972. The IJ cut off Colmenar's direct testimony but, at the close of his testimony, the government attorney and IJ asked him if he had anything to add. Id. We found those cursory questions insufficient to cure the IJ's previous refusal to allow Colmenar to testify to the contents of his written application. Id. That Oshodi testified to some facts regarding
The dissent faults our due process analysis for failing to begin by conducting the balancing test outlined in Mathews v. Eldridge. The dissent, however, skips over the fact that our circuit, as well as other circuits, has already determined that a due process right to present oral testimony in asylum cases exists, especially in cases that hinge on credibility. See, e.g., Colmenar, 210 F.3d at 971-72; Kerciku v. INS, 314 F.3d at 918. Nonetheless, a Mathews analysis only supports our conclusion. Under Mathews, we determine what process is due by balancing (1) the private interest at stake, (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional ... safeguards," and (3) the government's interest, including the burdens of any additional process. 424 U.S. at 335, 96 S.Ct. 893.
The first factor weighs heavily in Oshodi's favor. We have consistently recognized that deportation is a "particularly severe penalty." Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1481, 176 L.Ed.2d 284 (2010) (internal quotation marks omitted); see also Landon v. Plascencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982) ("Plasencia's interest here is, without question, a weighty one. She stands to lose the right to stay and live and work in this land of freedom. Further, she may lose the right to rejoin her immediate family, a right that ranks high among the interests of the individual.") (internal quotation marks and citation omitted). In the case of an asylum and withholding of removal applicant, the private interest could hardly be greater. If the court errs, the consequences for the applicant could be severe persecution, torture, or even death. INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) ("Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country.").
The second factor in the Mathews balancing test is the adequacy of the challenged procedure: in this case, the denial of an asylum applicant's ability to testify about the contents of his asylum and withholding application when the merits of his case hinges on his credibility. This factor also weighs in Oshodi's favor. The dissent relies heavily upon FDIC v. Mallen, 486 U.S. 230, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988), to support its argument that oral testimony was not required in this case. Dissent at 901-02. Mallen, however, is entirely consistent with our holding that due process entails a right to present oral testimony in asylum and withholding cases that turn on credibility determinations. In Mallen, the plaintiff brought a due process challenge to a statute that did not provide for an unfettered right to oral testimony in a different setting altogether, a post-suspension hearing on an FDIC decision to suspend from office an indicted official of a federally insured bank. Id. at 232, 108 S.Ct. 1780. In rejecting the challenge, the Court explicitly assumed that due process would sometimes require oral testimony:
We agree that Mallen stands for the proposition that oral testimony is not always required in administrative proceedings. Id. at 247-48, 108 S.Ct. 1780; Dissent at 902. But such an unsurprising holding is of little consequence here. Indeed, this proposition is established by Mathews. 424 U.S. at 349, 96 S.Ct. 893. Mallen also unremarkably suggests that, in some administrative proceedings and under certain circumstances, the fact that the material was "adequately covered by the written submissions" might be a valid reason for denying oral testimony. 486 U.S. at 247, 108 S.Ct. 1780. But Mallen also stands for the proposition that, in some cases, due process likely requires the admission of oral testimony. Id. It is our task, under Mathews, to determine what process is due in an asylum and withholding hearing, where credibility is a paramount consideration. The Court's holding that oral testimony may not be required in every post-suspension hearing of a bank official is not at all inconsistent with our holding today that due process requires the admission of oral testimony in an asylum and withholding hearing wherein the applicant's eligibility for relief turns on his credibility.
In determining whether oral testimony should be required in any particular case, we must consider "the risk of an erroneous deprivation of [the private interest] through the procedures used, and the probable value, if any, of additional ... safeguards." Mathews, 424 U.S. at 335, 96 S.Ct. 893. Mathews provides guidance for when oral testimony is valuable under this prong: the touchstone is, unsurprisingly, the importance of credibility determinations to the type of case presented. In Matthews, the Court explained that an evidentiary hearing complete with oral testimony was not required before the termination of disability benefits because such cases primarily turn on "routine, standard, and unbiased medical reports by physician specialists" and, therefore, ordinarily "the specter of questionable credibility and veracity is not present." Id. at 344, 96 S.Ct. 893 (internal quotation marks omitted).
Mathews, 424 U.S. at 343-44, 96 S.Ct. 893 (quoting Goldberg, 397 U.S. at 269, 90 S.Ct. 1011). Therefore, Mathews teaches us that cases that hinge on credibility are precisely the types of cases where the probable value of oral testimony is high and the lack of oral testimony significantly raises the risk of an erroneous decision.
The final Mathews factor requires us to consider the burdens our holding may place on the administrative process. The burden here is minimal since we only require that IJs follow the governing rules and regulations. As discussed above, Matter of Fefe requires testimony by an asylum applicant in each case and requires "the full examination of an applicant" except in the exceptional case where the parties stipulate that "the applicant's testimony would be entirely consistent with the written materials and that the oral statement would be believably presented." 20 I. & N. Dec. at 118. In short, we require no process that the government has not already imposed on itself.
In sum, we conclude that a Mathews analysis clearly supports our conclusion that due process entails the right to present oral testimony in asylum and withholding cases that turn upon an applicant's credibility.
To prevail on his due process claim, Oshodi must also show prejudice. Colmenar, 210 F.3d at 971. To show prejudice Oshodi need only demonstrate "that the outcome of the proceeding may have been affected by the alleged violation." Zolotukhin, 417 F.3d at 1076 (emphasis in original) (quoting Lopez-Umanzor, 405 F.3d at 1058). Here, the outcome turned entirely
A finding of prejudice is further supported by a close examination of the IJ's decision in this case. The IJ's decision relied heavily on Oshodi's testimony and gave little to no credence to the contents of his declaration. He dedicates three full pages to outlining all of Oshodi's testimony, which primarily consisted of the government's cross-examination. With respect to the two primary events of past persecution at the foundation of Oshodi's claim, the IJ devoted one paragraph. Moreover, the IJ appears to have minimized the importance of these events to Oshodi's claim because he testified to them only briefly: "The respondent testified briefly about two other incidents that involved persecution by Nigerian officials." Of course, the reason Oshodi only testified briefly about these events was that the IJ instructed him not to testify about them at all. The IJ also incorrectly discredited these events because "[t]he respondent failed to include these incidents on his application for asylum, but submitted into evidence a separate affidavit describing each in some detail." In fact, Oshodi did mention both of these events with some specificity in his application and then refers the reader to an attached declaration discussing the events in even greater detail. Because the IJ cut off Oshodi's testimony early in the hearing, the only evidence of the significant events of past persecution was in his application and attached declaration. The IJ, however, gave that evidence little weight, focusing instead on the content of Oshodi's limited testimony. On this record, Oshodi has clearly met his burden to demonstrate that his inability to fully testify may have affected the outcome of his case. See Zolotukhin, 417 F.3d at 1076.
As we stated in Colmenar, "[w]e do not enjoy second-guessing the way Immigration
Dissent by Chief Judge KOZINSKI.
Chief Judge KOZINSKI, with whom Judges RAWLINSON and BYBEE join, dissenting:
The majority today holds that aliens seeking asylum have a constitutional right "to testify fully as to the merits of their application." Maj. op. 890. But constitutional rights, once created, are not easily cabined: If would-be immigrants have a right to testify without limitation in support of their claims, so do untold millions of citizens whose vital interests are at stake in administrative proceedings. Which is doubtless why the Supreme Court has rejected the existence of any such right. Today's ruling is, in any event, wholly unnecessary because the IJ in this case didn't preclude petitioner from testifying. The majority manufactures this constitutional melodrama out of whole cloth.
Oshodi submitted copious written materials in support of his asylum application, including medical reports, letters from family and a declaration describing brutal encounters with Nigerian police. At an oral hearing, he called an expert witness, testified under the direction of his lawyer and had a chance to explain adverse evidence offered by the government. The IJ didn't believe him and explained why: Oshodi's long history of lying about his identity and the numerous inconsistencies in his testimony. See Appendix. This careful and detailed credibility finding is solid as a rock; we have absolutely no business reversing it.
Based on this and nothing more, the majority claims that the judge "cut off the direct examination" and "refus[ed] to hear Oshodi's full testimony with respect to the abuses he suffered in Nigeria." Maj. op. 887, 891. The majority intones this mantra at least twenty-five times, as if repeating the accusation will make it stick. Maj. op. 885, 885, 886, 887, 887, 888, 889, 889, 890, 890, 891, 892, 893, 893, 896, 897. But if immigration judges (and other judges too, presumably) are constitutionally prohibited from uttering even such tame exhortations, then trials and hearings will become Wagnerian operas where every litigant
Judicial time and attention are limited, and feedback about what's going on in the judicial mind is helpful. The IJ's statement was no different from what we say to counsel hundreds of times every year: "We've read the briefs, so there's no need to recite the facts," or "We understand your position on the suppression argument, and we'd like you to focus on the jury instructions instead." Judges are not potted plants. Giving litigants the kind of guidance that the IJ gave here is an important part of the job, not a denial of due process.
The majority insists that the IJ "barred complete chunks of ... oral testimony," maj. op. 890 (brackets omitted), but it can't cite any prohibitory words. The judge didn't say, "Mr. Oshodi, you may not testify as to anything already addressed in your papers." He didn't say, "Testimony will be limited to new material." Nor did he use the majority's word, "barred," or any of its cognates, synonyms or equivalents. Rather, the IJ (1) recognized "that there needs to be testimony concerning [the] application," but advised Oshodi that (2) he was not "looking for everything to simply be repeated" and that (3) Oshodi was free to add new material. Then he added, (4) "[O]therwise, I don't need it line by line, okay?" If the judge meant to prohibit repetition of anything in the written application, he would have said so outright or stopped at statement (3). The last phrase makes sense only if the judge expected Oshodi to testify as to material that was already covered in his asylum application.
The IJ's mild intervention echoed exhortations heard in courtrooms across the country every day: "Move it along, counselor." If admonitions this mild and innocuous are due process violations, then what can a judge say to a meandering litigant to keep the hearing on track? According to the majority, judges violate the Constitution if they issue any instruction that a litigant or his lawyer might interpret as a refusal to hear testimony. But in a system with a backlog of nearly 30,000 unresolved cases from last year alone, see U.S. Dep't of Justice, Exec. Office for Immigration Review, FY 2012 Statistical Year Book B2 (2013), we can't afford to turn every sign of impatience into a constitutional violation, see Aguilar-Solis v. INS, 168 F.3d 565, 569 (1st Cir.1999).
IJs commonly rush aliens through their testimony far more forcefully than the judge did here, see, e.g., Boci v. Gonzales, 473 F.3d 762, 765 (7th Cir.2007), and lawyers have a professional duty to push back if they believe their clients' rights are being compromised, see Nat'l Immigration Project, Nat'l Lawyers Guild, Immigration Law and Defense § 13.72, at 974 (2012). Nothing the IJ said precluded Oshodi from giving a vivid oral account of the incidents of persecution he allegedly suffered. If his lawyer had any doubts on that score, he could have asked for clarification or made a proffer as to what his client would say. At the very least, he should have objected.
Oshodi's lawyer chose not to pursue the matter. For all we know, he made a tactical decision, fearing that Oshodi would confuse facts or testify inconsistently with his written statement. See Grava v. INS, 205 F.3d 1177, 1180 (9th Cir.2000) ("Given the difficulties many applicants face at their hearings ... the asylum application sometimes represents an alien's best case."). Clients do stumble on occasion, particularly when they're spinning tales, and Oshodi has a long history of prevarication. His lawyer may have been just as happy to rest on the written submissions.
Oshodi spent a page of transcript (six fairly convoluted sentences) not answering the question put to him. The IJ pointed this out and asked his lawyer whether he had a "specific question for [Oshodi] to answer." Rather than restating his question as the IJ suggested, the lawyer passed on to another matter and then abruptly ended his examination. The majority is being unjust in calling what the IJ did an "admonishment" and blaming him for the lawyer's decision to end the examination. Maj. op. 887-88.
We have long held that judges act well within their discretion when they "participate in the examination of witnesses for the purpose of clarifying the evidence." United States v. Mostella, 802 F.2d 358, 361 (9th Cir.1986). IJs have not merely the inherent authority of trial judges, but an affirmative duty, imposed by statute, to develop a clear record for appeal. See 8 U.S.C. § 1229a(b)(1); Kaur v. Ashcroft, 388 F.3d 734, 737 (9th Cir.2004); 8 C.F.R. § 1240.11(c)(3)(ii). Oshodi had strayed far from his lawyer's question, and the IJ tried to bring clarity and coherence to a potentially confusing portion of the transcript. That Oshodi's lawyer then suddenly ceased questioning Oshodi cannot fairly be attributed to anything the IJ said or did.
The majority's reading of the record "is yet another tiresome example of the nitpicking we engage in as part of a systematic effort to dismantle the reasons immigration judges give for their decisions." Kumar v. Gonzales, 444 F.3d 1043, 1056 (9th Cir.2006) (Kozinski, J., dissenting in part) (internal quotation marks omitted). Here the IJ was thoroughly familiar with
The Supreme Court has spoken directly to this issue: "There is no inexorable requirement that oral testimony must be heard in every administrative proceeding in which it is tendered." FDIC v. Mallen, 486 U.S. 230, 247-48, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988). Mallen was the president and a director of a federally insured bank who was indicted, but not yet tried, on various false statement charges. Id. at 236-37, 108 S.Ct. 1780. The FDIC issued an ex parte order suspending Mallen from further participation in the bank's affairs. Id. at 238, 108 S.Ct. 1780. Mallen requested an administrative hearing where he proposed to present "both oral testimony and written evidence" showing that his "continued service was not likely to pose a threat to the interests of the bank's depositors or to threaten public confidence in the bank." Id. The FDIC agreed to a hearing, but "took the position that oral testimony would not be necessary." Id. at 239, 108 S.Ct. 1780. The FDIC relied on 12 U.S.C. § 1818(g)(3), which provided that the bank officer could "submit written materials (or, at the discretion of the agency, oral testimony) and oral argument." Mallen, 486 U.S. at 235-36 n. 6, 108 S.Ct. 1780.
Mallen filed suit in district court, claiming that he was denied due process because the administrative hearing did not guarantee him the right to present live testimony. Id. at 239, 108 S.Ct. 1780. The district court rejected the first claim but sustained the second, holding the statutory procedure "`constitutionally inadequate... because it fails to provide for a hearing at which oral evidence can be presented.'" Id. (quoting Mallen v. Federal Deposit Insurance Corporation, 667 F.Supp. 652, 659-60 (N.D.Iowa 1987)). On that basis, it nullified Mallen's suspension. Id. The government took a direct appeal to the Supreme Court under then-prevailing procedures.
The Supreme Court unanimously reversed. Id. at 248, 108 S.Ct. 1780. It recognized that Mallen's "interest in the right to continue to serve as president of the bank and to participate in the conduct of its affairs is a property right protected by the Fifth Amendment Due Process Clause," and Mallen was therefore "entitled to the protection of due process of law." Id. at 240, 108 S.Ct. 1780. The Court rejected his contention that the statutory procedure "violates due process because it does not guarantee an opportunity to present oral testimony." Id. at 247, 108 S.Ct. 1780. The Court recognized that there may be "post-suspension proceedings
Mallen stands for two propositions that bear directly on our case. First, it holds squarely that due process does not require an opportunity to present live testimony in every case where important property or liberty interests are at stake. At times, all oral testimony can be excluded, not merely direct testimony, as the majority (wrongly) posits happened in Oshodi's case. Second, the Court states quite clearly that one legitimate basis for precluding the presentation of oral testimony is that the "material ... was adequately covered by [the] written submissions." Id. at 247, 108 S.Ct. 1780. If the IJ prohibited anything at all here, it was precisely what the Supreme Court in Mallen said it was OK to prohibit.
Mallen is not the only case where the Supreme Court has shown itself reluctant to impose constitutional constraints on administrative proceedings. In Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), the Court considered whether a hearing officer violated due process by basing the denial of disability benefits on the hearsay reports of nonattending physicians, when those reports were contradicted by the live testimony of a treating physician. Id. at 401-02, 91 S.Ct. 1420. The district court had been "reluctant to accept as substantial evidence the opinions of medical experts submitted in the form of unsworn written reports, the admission of which would have the effect of denying the opposition an opportunity for cross-examination," and the Fifth Circuit affirmed. Id. at 397-98, 91 S.Ct. 1420. The Supreme Court reversed, emphasizing the informality of Social Security claims procedures and the burden and expense of conducting 20,000 hearings a year. Id. at 400-06, 91 S.Ct. 1420.
The majority purports to read Mallen as "also stan[ding] for the proposition that, in some cases, due process likely requires the admission of oral testimony." Maj. op. at 895 (citing Mallen, 486 U.S. at 247, 108 S.Ct. 1780). Mallen presents this as an assumption, not a holding, but dismisses it as inapplicable when the oral testimony is "merely cumulative to material that was adequately covered by written submissions," 486 U.S. at 247, 108 S.Ct. 1780 — precisely Oshodi's situation. Even under the majority's own reading of Mallen, there is no due process violation here.
But the majority far outstrips even its own optimistic interpretation of Mallen by holding that IJs must allow oral testimony not just in some asylum cases, but in all of them: "[O]ur holding today [is] that due process requires the admission of oral testimony in an asylum and withholding hearing wherein the applicant's eligibility for relief turns on his credibility." Maj. op. at 895. Asylum and withholding cases inherently turn on credibility because the petitioner
Nor can this holding be confined to the immigration context. The majority holds that the Constitution gives would-be immigrants a right to unfettered oral testimony. There's no credible way we can deny that right to American citizens in the multitude of other administrative contexts that involve credibility. Starting today, anyone in the Ninth Circuit involved in "any contested administrative hearing" — from the Social Security disability claimant to the unemployment benefits seeker to the zoning applicant — has a right to present full oral testimony without impediment so long as "credibility is a determinative factor." Maj. op. 889.
By injecting due process where the Supreme Court has said it doesn't belong, the majority provides a blueprint for the imposition of trial-like procedures on a wide swath of administrative proceedings. All of this disregards the Supreme Court's steadfast refusal to hold that the procedural protections that attend a trial are necessary to ensure fundamental fairness in administrative hearings. See, e.g., Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 18-19, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978); Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 84-86, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978).
The Supreme Court first announced that an alien facing removal is entitled to an "opportunity to be heard upon the questions involving his right to be and remain in the United States" in The Japanese Immigrant Case, 189 U.S. 86, 101, 23 S.Ct. 611, 47 L.Ed. 721 (1903). What kind of hearing did the Supreme Court have in mind? "[N]ot necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act." Id. As far back as 1903, then, the Court made clear that due process in this context can be satisfied with something far less formal than a hearing that conforms "to the forms of judicial procedure."
To determine whether a particular procedure is constitutionally required in removal proceedings, we must balance the various interests at stake. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); see also Landon v. Plasencia, 459 U.S. 21, 34-35, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). The majority begins its balancing in a curious way: by telling us that it's meaningless because we've already found there's a constitutional right to present oral testimony in removal proceedings. The case that supposedly established this right, Colmenar v. INS, 210 F.3d 967 (9th Cir.2000), found a denial of due process when the IJ announced that he'd made up his mind before
Having already figured out the right answer, my colleagues grudgingly go about showing their work. Under Mathews, we must balance (1) the private interest at stake; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional ... safeguards"; and (3) the government's interest, which includes the burdens imposed by more process. Mathews, 424 U.S. at 335, 96 S.Ct. 893. I'm willing to indulge the majority's assumption that the first factor weighs in favor of the immigrant, although I rather suspect that many asylum applicants and their lawyers would dearly love to have an excuse to avoid testifying without creating an adverse inference. But the majority's perfunctory examination of the benefit of additional procedural safeguards and the burden those procedures will impose falls far short of the rigorous analysis we must conduct when determining constitutional rights.
The majority argues that full oral testimony is necessary because "Mathews teaches us" it's required in "cases that hinge on credibility." Maj. op. 894. If so, it's a lesson the Supreme Court has not yet learned. See, e.g., Mackey v. Montrym, 443 U.S. 1, 24, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) (Stewart, J., dissenting) (decrying majority's decision not to require a hearing where issues "plainly involve[d] ... credibility and veracity"). Live testimony simply isn't a constitutional prerequisite to making a credibility determination in an administrative proceeding.
In an effort to prove otherwise, the majority cherry-picks language from a handful of criminal cases. Maj. op. 891. But the cases themselves merely recognize the value of oral testimony in certain narrow contexts. See, e.g., United States v. Thoms, 684 F.3d 893, 903 (9th Cir.2012) ("[A] district court abuses its discretion when it reverses a magistrate judge's credibility determinations, made after receiving live testimony and favorable to the government, without viewing key demeanor evidence, with one exception...."). Equally unpersuasive is the majority's assertion that Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) stands for the proposition that special deference is owed a trial court's credibility determinations because it is best able to evaluate demeanor during live testimony. Maj. op. 892. Anderson, in fact, stands for the contrary proposition:
My colleagues are so busy stringing together out-of-context quotes that they overlook that the IJ has other reliable means of assessing credibility. For one, the alien may introduce written evidence to corroborate his declaration, including news accounts, reports from doctors and letters from family and friends. See 8 U.S.C. § 1229a(b)(4)(B). The regulations also require the IJ to place the alien under oath and question him about the truth of his application. 8 C.F.R. § 1240.11(c)(3)(iii). We have long recognized that cross-examination, by both the immigration judge and the government's lawyer, is a powerful engine for detecting the truth of an alien's testimony. Indeed, cross-examination is far more important than direct examination. Most people can tell a convincing tale under friendly questioning by their own lawyers, but surviving a stringent cross-examination is what really matters in establishing credibility. See Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir.1999); see also Abovian v. INS, 257 F.3d 971, 977 (9th Cir.2001) (Kozinski, J., dissental). The statutory right to submit records, coupled with some oral colloquy between the alien and the IJ, guarantees the alien a reasonable opportunity to present evidence bearing on his credibility.
Given the multitude of tools available for the petitioner to establish his credibility and prove up his story, the ability to present live direct testimony during a removal proceeding strikes me as relatively unimportant. Judge Friendly, in his seminal article cited approvingly by the Supreme Court in Mathews, spoke directly to this issue:
Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L.Rev. 1267, 1281 (1975).
Judge Posner, who is no fan of immigration judges, has noted the insignificance of oral testimony in immigration cases:
Apouviepseakoda v. Gonzales, 475 F.3d 881, 897 (7th Cir.2007) (Posner, J., dissenting).
Whether seeing a witness testify live is critical to judging his credibility is, as Judge Posner says debatable. The preeminent civil procedure treatise suggests that "[p]erhaps ... the entire American reliance on demeanor is misplaced." 12
Had the majority given more than cursory attention to this factor, it would have noted that immigration judges decided an average of 1,014 cases each in 2008, a pace that would make any judge's head spin. See Improving Efficiency and Ensuring Justice in the Immigration Court System: Hr'g Before the S. Comm. on the Judiciary, 112th Cong. 3 (2011) (statement of Karen T. Grisez, Am. Bar Ass'n Comm'n on Immigration). "To produce these numbers, each judge must have issued an average of at least 19 decisions each week, or approximately four decisions per weekday,... even while assuming no absences for vacation, illness, training, or conference participation." Id.
Let's say that the IJ here had decided to manage his Sisyphean caseload by instructing aliens that they could not repeat anything already in their written submissions, but could testify on direct only as to new material, before undergoing cross-examination. Or let's say that the Attorney General by regulation provided that aliens must submit all of their evidence in writing, and must appear at an oral hearing only to be cross-examined as to the details of their stories. What then?
The Supreme Court has told us that we cannot judge the propriety of any such
The majority ignores these considerations and merrily piles on more process, but it's aliens with meritorious claims who will suffer for it. Applicants for asylum and similar relief wait an average of 550 days for a decision from the immigration court, 660 if they're in California. See Suzy Khimm, Many Immigrants Facing Deportation Must Wait 550 Days For Their Day In Court, WashingtonPost.com (Feb. 22, 2013). These delays are a boon to aliens who make flimsy claims in an effort to forestall their inevitable removal, but they hurt aliens scarred by persecution whose lives are on hold as they wait to secure a future in the United States. While overstating the virtues of oral testimony, my colleagues forget that prompt adjudication of claims is a component of fundamental fairness. See 2 Richard J. Pierce, Jr., Administrative Law Treatise § 9.10, at 894 (5th ed.2010).
In our circuit, aliens in removal proceedings have an easier time showing prejudice than do criminal defendants, who must demonstrate at least "a reasonable possibility" that the constitutional errors at their trial contributed to their conviction, see Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and a much easier time than habeas petitioners facing execution, who must show such errors had a "substantial and injurious effect" on the verdict, see Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). We have it exactly backwards: Citizens facing loss of life or liberty and the stigma of a criminal conviction should get greater procedural protection than foreign nationals seeking to escape deportation from the United States.
Not surprisingly, our prejudice standard is an outlier among the circuits, most of which require a substantial probability that the alleged due process violation swayed the outcome of the removal proceeding. See Denis v. Att'y Gen. of the United States, 633 F.3d 201, 219 (3rd Cir. 2011) ("substantial prejudice"); Zhou Zheng v. Holder, 570 F.3d 438, 442 (1st
But Oshodi loses even under our watered-down prejudice standard. The majority speculates that the immigration judge might have found Oshodi credible had he been permitted to testify about the "brutal torture" he suffered in Nigeria. Maj. op. 889. This makes no sense at all. Why would testifying about torture be more believable than testifying about anything else? Oshodi's testimony was riddled with evasions and inconsistencies, and he had a long record of dishonesty. Additional testimony could do nothing to cure the problems the IJ correctly perceived in the testimony Oshodi had already delivered.
Oshodi claimed to have entered the United States on a business visa, then admitted to entering illegally for a little while before rehashing the story about the business visa once again. He told an immigration officer that he feared persecution in Nigeria because of his "dad's" political advocacy, but then maintained on cross that it was his "grandad's" activism that placed him in danger. He claimed to own significant land in Nigeria, then conceded it was not in his name. Oshodi's brother was sitting in the courtroom, yet, as the IJ noted, Oshodi didn't ask him to corroborate any of these contested details about his family or personal history. Additionally, Oshodi acknowledged his arrests for passing bad checks, giving false information to a police officer and killing a woman in a drunk driving accident. The IJ was especially troubled that Oshodi was convicted for this last offense under a false name, one of several that he employed, allegedly to avoid detection by Nigerian spies monitoring his whereabouts in the United States. The IJ also pointed to numerous other discrepancies and evasions in Oshodi's testimony.
The majority sniffs that these inconsistencies concern "peripheral issues," but my colleagues are stuck in a pre REAL ID Act time warp. The Act permits IJs to assess credibility based on any inconsistency or falsehood, regardless of whether it "goes to the heart of the applicant's claim." See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); see also Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir.2010). The logic behind the statute is the same that animates Federal Rule of Evidence 609(a)(2), which permits impeachment of any witness with past crimes involving dishonesty or falsity, such as passing bad checks and lying to police. Lie once, lie again: If an alien is willing to fudge small details, Congress has said, the IJ may infer he's also willing to fabricate a history of abuse to avoid removal from the United States. "[A] man with a criminal background [may indeed] also face severe persecution in his home country," maj. op. 897 n. 15, but a man who is caught telling tales can't rehabilitate himself by telling more tales. After so much dishonesty, Oshodi could have recounted the torture of Gloucester in King Lear and it would have done him no good.
The rampant inconsistencies in Oshodi's testimony and his long record of dishonesty and lawlessness amply support the IJ's adverse credibility finding. See Malkandi v. Holder, 576 F.3d 906, 912 (9th Cir.2009). That's all we need to know to deny the petition and uphold the agency's decision.
Today's ruling impairs the ability of immigration judges to manage their crushing
The IJ's credibility findings in Oshodi's case:
Decision & Order of the Immigration Judge at 9-11, May 26, 2006.
The IJ admonished Oshodi and his lawyer that "if you have something to add to what was there, fine; otherwise I don't need it line by line, okay?" We read this statement as instructing Oshodi's lawyer not to elicit testimony about matters already covered in the application. Oshodi's lawyer clearly understood the directive in this manner as well. Before the IJ's directive, Oshodi's lawyer was asking Oshodi a series of chronological questions about Oshodi's persecution in Nigeria. After the IJ intervened, Oshodi's lawyer stopped this line of questioning and only asked Oshodi if he had anything to say "in addition to what was already previously submitted in [his] application and [his] statement." Oshodi's lawyer plainly did not understand the IJ's directive as merely a request for Oshodi not to repeat himself "line by line" but rather an instruction to elicit testimony only about events not included in the application. We understand it in the same way.
The dissent also cites Apouviepseakoda v. Gonzales, 475 F.3d 881, 897 (7th Cir.2007) (Posner, J., dissenting), wherein Judge Posner, in dissent, questioned the value of live testimony to credibility determinations where such testimony is presented through an interpreter. Dissent at 905. Judge Posner's views, regardless of their merit, are not relevant here where there was no interpreter. We doubt that Judge Posner's critique applies not only to those who testify through interpreters but also to those who "simply grew up in a different culture." Dissent at 905-06. The possible cultural obstacles the dissent cites are not an excuse for depriving petitioners the right to present their own story in their own words. Because Oshodi testified in English, and not through an interpreter, the views of Judge Posner, as echoed by the dissent, are of no import here.
Unlike the dissent, we do not presume to decide that an IJ, once noting some inconsistencies in the record, could not still find an applicant credible based on persuasive testimony. It is not inconceivable that a man with a criminal background could also face severe persecution in his home country.
