NIJC, the American Immigration Lawyers Association (AILA), and pro bono partner McDermott Will & Emery LLP filed an amici brief in support of Oshodi’s peititon for rehearing en banc at the U.S. Court of Appeals for the Ninth Circuit. Oshodi, a native of Nigeria, was tortured and persecuted in Nigeria as a result of his political activity. The immigration judge (IJ), however, denied asylum, withholding, and CAT relief. The IJ found that Oshodi had not provided sufficient corroborating evidence regarding his identity and family history – concerns that Oshodi became aware of for the first time when the immigration court issued its decision.
Amici argued that a general notice standard, which is what Oshodi received, puts applicants in the untenable position of having to accurately anticipate which facts presented in an asylum claim will require corroboration. A misstep can result in denial of their claim without further notice. On the other hand, a specific notice from the IJ, identifying which areas might need more corroboration, can ensure that bona fide asylum applicants are not returned to countries where they were persecuted. For Oshodi, the IJ stated that there was “enough evidence within the record to suggest past persecution and/or a well-founded fear of future persecution.” The IJ ultimately denied Oshodi relief, however, for reasons separate and apart from the merits of his claim.
Amici additionally argued that the REAL ID Act requires a specific notice to asylum applicants. See Ren v Holder, 648 F.3d 1079 (9th Cir. 2011). Under the Act, applicants must also be given a meaningful opportunity to respond to the notice that further information is needed, before the immigration judge can deny their application. Id. Had Oshodi been given adequate notice of the IJ’s concerns, he could then have produced corroborating evidence or provided his best explanation as to why the requested corroborating evidence was unavailable.
Amici filed their brief on September 28, 2012. The case was argued on December 11, 2012. Amici are represented by Chuck Roth and Lisa Koop of NIJC, and Julian Andre and Matthew Smith of McDermott Will & Emery LLP.
On August 27, 2013, the Ninth Circuit granted rehearing en banc and ultimately granted Oshodi's petition for review, finding the IJ's refusal to allow Mr. Oshodi to testify fully as to the events giving rise to his asylum claim violated his due process rights, particularly because it formed the basis of the IJ's negative credibility finding. Chief Judge Kozinski, joined by Judges Rawlinson and Bybee dissented.
Read the Ninth Circuit's opinion