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Owino v. Holder

United States Court of Appeals, Ninth Circuit

November 4, 2014

ERIC H. HOLDER, JR., Attorney General, Respondent

Argued and Submitted, April 11, 2014, Pasadena, California,

Page 528

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A097-469-354.



The panel granted a petition for review of the Board of Immigration Appeals' denial of asylum, withholding of removal and protection under the Convention Against Torture to a citizen of Kenya.

The panel held that the IJ abused her discretion in denying petitioner a continuance to submit into evidence additional arrest documents to prove past persecution because the reasoning was based on legal error and was inconsistent with factors set forth in An Na Peng v. Holder, 673 F.3d 1248, 1253 (9th Cir. 2012). As to the nature of the evidence excluded, the panel held that the agency erred as a legal matter in concluding that the arrest warrant was not properly authenticated, as set forth in 8 C.F.R. § 287.6(b), because that regulation provides merely one, and not the only, method for authenticating documents. The panel concluded that the arrest warrant had been properly authenticated by an investigator with the Federal Defenders of San Diego pursuant to Rule 901 of the Federal Rules of Evidence.

Addressing petitioner's contention that a government overseas investigation into the authenticity of certain documents he submitted violated his regulatory right to confidentiality, the panel held that by delivering petitioner's arrest documents directly to Kenyan police officers, the State Department violated 8 C.F.R. § 208.6 under both the plain language of the regulation and as interpreted in DHS guidance.

The panel held that petitioner's argument that admission of evidence from the overseas investigation violated his right to due process was foreclosed by Angov v. Holder, 736 F.3d 1263 (9th Cir. 2013).

The panel held that in denying CAT relief the Board failed to justify its rejection of certain evidence. The panel also held that the record did not support the agency's finding of discrepancies in the medical evidence.

The panel remanded for the agency to (1) reconsider whether a continuance should have been granted after evaluating all of the factors set out in An Na Peng ; (2) determine whether the government's breach of petitioner's right to confidentiality gives rise to a new claim for CAT relief; and (3) reconsider its findings on petitioner's credibility and his original CAT claim in light of all evidence in the record.

Shane H. McKenzie (argued), Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, California, for Petitioner.

Sheri R. Glaser (argued), Stuart F. Delery, and Ernesto H. Molina, Jr., United States Department of Justice, Washington, D.C., for Respondent.

Before: Jerome Farris and Andrew D. Hurwitz, Circuit Judges, and Paul L. Friedman, District Judge.[*]


Page 529


Sylvester Otieno Owino, a native and citizen of Kenya, petitions for review of a decision of the Board of Immigration Appeals. He argues that the agency's adverse credibility finding and denial of relief under the Convention Against Torture are not supported by substantial evidence. He also contends that the agency improperly declined to admit untimely filed evidence, violated his right to confidentiality, and deprived him of due process by admitting evidence of a government authenticity investigation.

We have jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand to the BIA for further proceedings.


Owino was admitted to the United States on a student visa in 1998. In 2003, he was convicted in California of robbery in the second degree. The following year, the Department of Homeland Security (" DHS" ) initiated removal proceedings. See 8 U.S.C. § § 1101(a)(43)(G), 1227(a)(2)(A)(iii). Owino conceded removability, but applied for asylum, withholding of removal, and protection under the Convention Against Torture (" CAT" ).

A. Owino's Initial Testimony

An immigration judge first held a merits hearing on Owino's application on March 6,

Page 530

2006. At the hearing, Owino testified to the following:

In the mid-1990s, Owino owned a bicycle repair shop in Jera, Kenya, at which political issues were often discussed. During that time, Owino openly criticized the government, advocated for women's rights, and distributed leaflets on behalf of a women's rights group. In July 1996, he was arrested by the Kenyan police in Jera, detained for ten days, and beaten.

In December 1996, following police interference with his business, he left Jera for Nairobi, where he enrolled in college and joined the track and field team, competing internationally. Owino's success attracted media attention, and, in an interview with the newspaper The Nation, he openly criticized the Kenyan police. In October 1997, Owino was arrested again and held for three weeks, during which time he was beaten and told to cease criticizing the government and associating with journalists. The police killed a detainee in his presence and warned that they would kill him, too, if he reported what he had seen; they also planted his fingerprints on a gun, threatening to use it as evidence against him if he said anything.

After being released, Owino was followed by Kamau, one of the police officers who had beaten him. The police also asked Owino's training partner about Owino. After this incident, Owino never left campus and applied to transfer to San Juan United States International University in San Diego, California.

On December 16, 1998, after receiving a student visa, Owino entered the United States. He continued communicating with Kenyan journalists and criticizing the Kenyan police. In 2002, he learned from his former training partner that Officer Kamau, who had since advanced in rank, had warned that Owino should stay in the United States.

B. The IJ's Decision and Subsequent Appeals

The IJ issued a decision on April 10, 2006. Because of Owino's robbery conviction, the IJ found him ineligible for asylum, withholding of removal under the Immigration and Nationality Act (" INA" ), and withholding of removal under CAT. The IJ further held that Owino was not credible and had failed to demonstrate entitlement to deferral of removal under CAT.

Owino appealed and also filed a motion seeking remand for the IJ to consider additional evidence of his torture claim. The BIA dismissed Owino's appeal after concluding that, although the IJ's adverse credibility finding was not supported by the record, (1) Owino had not satisfied his burden under CAT of showing that he likely would be tortured if returned to Kenya; (2) the new evidence should have been presented at ...

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