Ninth Circuit takes Oshodi v. Holder en banc

Friday, May 4th, 2012
By: Jonathan MontagJ.D.

On January 29, 2012, I wrote about a Ninth Circuit decision, Oshodi v. Holder, decided by a three-judge panel consisting of Judges Diarmuid F. O’Scannlain, Johnnie B. Rawlinson, and  Robert E. Cowen (a senior circuit judge in the Third Circuit), and written by Judge Rawlinson. In the January 29, 2012, posting, I discussed and gave some analysis of the case. My concern was the change in the law the case made regarding providing corroborating evidence in asylum cases.

On May 3, 2012, the Court of Appeals issued this order, “Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.” “En banc oral argument will take place during the week of September 17, 2012, in San Francisco, California.”

Remarkable about the order is that unlike the usual situation where the losing party to the litigation files a motion for rehearing with a suggestion for rehearing en banc, in this case, on April 2, 2012, according to the court docket, “A judge of this court has requested a vote on whether to rehear the case en banc.” Because the decision by the panel in Oshodi was unanimous, apparently the requester was a judge who did not take part in the proceedings.

At the immigration court level, immigration judges have already applied Oshodi, admonishing asylum applicants at the beginning of their cases that their applications for asylum must include corroborating evidence and would be denied if the court felt that there should have been corroborating evidence and it was not provided before the hearing. Before Oshodi, at least in the Ninth Circuit, the rule was that if the immigration judge felt that corroboration was needed, the applicant got warning of the area where corroboration was needed at his hearing and then had the opportunity to provide it or explain why it was not possible to get it. Posted May 4, 2012.



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