Oshodi II resolves an intra-circuit split by ignoring it while the dissent presents a brief on the purposelessness of live testimony in fact-finding.

Monday, September 2nd, 2013
By: Jonathan MontagJ.D.

A year and a half ago I wrote about a January 26, 2012, Ninth Circuit Court of Appeals decision in Oshodi v. Holder (Oshodi I). The case presented an intra-circuit split on the issue of when an alien must provide corroborating evidence in an asylum hearing. An earlier Ninth Circuit case, Ren v. Holder, held:

Therefore, the IJ must undertake the following sequential analysis. To begin, the IJ must determine whether an applicant’s credible testimony alone meets the applicant’s burden of proof. If it does, no corroborative evidence is necessary. If a credible applicant has not yet met his burden of proof, then the IJ may require corroborative evidence. If corroboration is needed, however, the IJ must give the applicant notice of the corroboration that is required and an opportunity either to produce the requisite corroborative evidence or to explain why that evidence is not reasonably available.

In Oshodi I, the Ninth Circuit panel concluded:

Our recent decision in Ren v. Holder, purports to hold that the REAL ID Act requires that “an IJ must provide an applicant with notice and an opportunity to either produce the evidence or explain why it is unavailable before ruling that the applicant has failed in his obligation to provide corroborative evidence and therefore failed to meet his burden of proof.” However, as that issue was not “presented for  review” to the Ren panel, the quoted passage is dicta and need not be considered here.

Followers of this issue in the glacier-fast world of appellate jurisprudence got the answer of the Ninth Circuit about whether the holding in Ren was dicta or not in a newly issued en banc decision, Oshodi v. Holder (Oshodi II).  This is what Oshodi II said about the issue – Nothing. Not a reference to the issue or to Ren.

So, is the Ren decision good law? Well, since Oshodi II replaces Oshodi I, which was withdrawn, and only Oshodi I challenged Ren, we have a strong argument for asserting that Ren is undisturbed. On the other hand, three appellate judges concluded that the corroboration part of Ren was dicta. Nothing officially refutes that observation and so maybe that part of the Ren holding is not the law or at least very suspect. Another case will have to clarify this issue as Oshodi II has not.

What Oshodi II did hold is that before an immigration judge determines that someone is not credible in an asylum hearing, he must be given a chance to testify about his asylum claim. The “must” is because of the Due Process Clause of the Fifth Amendment to United States Constitution.  The Court wrote:

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.

At first blush, to many these may be the five most uncontroversial sentences ever written by a court. Of those five sentences, the third sentence, “It is well established that live testimony is critical to credibility determinations,” might be the least controversial sentence a person could write. First blushes, like first impressions, are important, but not definitive. Those five sentences and that third sentence, as well as the rest of the Oshodi II opinion provoked a doozy of dissent by Chief Judge Kozinski.  Some excerpts:

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.”

Oshodi’s case is, in fact, typical: He alleges incidents of persecution and violence directed against him and his family in a distant land, and seeks to avoid deportation to a country riven by strife. My colleagues and I have seen similar claims in countless cases that litter the pages of the Federal Reporter and, even more, the Federal Appendix.

Most marvelously, a lot of the dissent goes on about how worthless live testimony can be:

Whether seeing a witness testify live is critical to judging his credibility is, as Judge Posner says, debatable. The pre-eminent civil procedure treatise suggests that “[p]erhaps . . . the entire American reliance on demeanor is misplaced.” 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3070.2 (2d ed. 1997); see also Morales v. Artuz , 281 F.3d 55, 61 & nn.3– 4 ( 2 d Cir. 2002) (noting empirical studies have refuted belief that “demeanor is a useful basis for assessing credibility ”). Observing a witness  who communicates through the cumbersome intermediation of an interpreter, or even simply grew up in a different culture, can be downright misleading. See Li, 559 F .3d at 1100 n.4 (9th Cir. 2009) (attributing seeming inconsistencies in an alien’s testimony to “numerous translation difficulties”); Kadia v. Gonzales, 501 F.3d 817, 819 (7th Cir. 2007) (Posner, J.) (noting that “immigration judges often lack the ‘cultural competence’ to base credibility determinations on an immigrant’s demeanor”); Dia v. Ashcroft, 353 F.3d 228, 276 (3d Cir. 2003) (en banc) (McKee, J., dissenting in part) (“[W]hile the failure to look someone in the eye while speaking is usually interpreted as an indication of deception by people in Western cultures, avoiding eye contact has a very different meaning in some other cultures.”); Chouchkov v. INS , 220 F .3d 1077, 1083 n.15 ( 9th Cir. 2000) (“[W]hat sounds peculiar in one country may be the norm in another.”); Barapind v. Rogers, No. 96-55541, 1997 W L 267881, at *2 (9th Cir. Feb. 6, 1997) (holding IJ’s belief that petitioner’s “stoic” demeanor indicated dishonesty was the result of cultural bias). In light of the other mechanisms available to the IJ for detecting whether the petitioner is telling the truth or lying, I can’t say that allowing a petitioner to drone on endlessly, restating every word and every line of his asylum application, is particularly significant to affording him a fair opportunity to present his case.

Courts convene to get to the truth. Judges and juries are called fact finders because we presume they have the ability to determine the truth. Often, what happens boils down to individuals’ testimony. It is not just Charles Alan Wright and  Arthur R. Miller that believe the current system of determining credibility is flawed. Other experts have found that a truth-telling person cannot tell the same story the same way twice. Yet that is what immigration courts expect. It is a discrepancy game. If you have too many discrepancies, you are not telling the truth. Experts have found that traumatic situations – like being beaten and tortured or “simply fear – distort memory. Yet asylum seekers are denied all the time for not remembering minor details about vicious beatings.  Experts will tell you about the affect of time on memory. Yet asylum seekers are denied all the time for forgetting to mention events that happened years and decades earlier.

Few are in better positions than the Chief Judge of the Ninth Circuit Court of Appeals to undertake a thorough review of the judicial system – is it ferreting out the truth? – is it punishing the right people? – is it punishing people proportionately? – is it fair? – is it racist? – is access fair and affordable?…. …. the Oshodi II dissent is not the opening salvo in such a review. Instead, it is about streamlining an already-flawed process and eliminating litter, nitpicking, droning.

Mr. Oshodi may be the biggest, fattest fabulist and charlatan on the face of the earth. He may also face persecution and torture if he is returned to Nigeria. The tools we have are extremely imperfect at determining the truth. Live testimony in a case where credibility is at stake is one of the tools. Luckily, in this case, while three judges do not want to guarantee the availability of that tool, eight others do. Majority rule is another bad determiner of truth, but in this case I am all for it. Posted September 2, 2013.


 

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