25 F.4th 152
2d Cir.2022Background
- Olukayode David Ojo, a Nigerian national, entered the U.S. in 2010 and remained beyond his authorized stay; in 2014 he was convicted of conspiracy to commit wire fraud and conspiracy to possess false identification documents and served a 37‑month sentence.
- DHS initiated removal proceedings; Ojo filed for asylum, withholding of removal, and CAT protection in April 2014 (after the statutory one‑year asylum deadline).
- Ojo claimed fear of persecution/torture in Nigeria as a Christian targeted by Boko Haram and as a criminal deportee; submitted family declarations, news articles, and an expert declaration (Dr. Basil Ugochukwu) describing ill‑treatment of criminal deportees.
- The IJ found Ojo credible but denied asylum as untimely (holding his changed‑circumstances claim was barred because he caused them), denied asylum alternatively in the exercise of discretion based on his criminal convictions, ruled his convictions constituted a "particularly serious crime" barring withholding, and denied CAT relief as speculative without addressing the expert declaration.
- The BIA affirmed; Ojo petitioned for review to the Second Circuit.
- The Second Circuit granted review, vacated the agency decisions, and remanded because the agency applied incorrect legal standards and failed to follow or articulate required analyses (timeliness/changed‑circumstances, discretionary balancing, the two‑step particularly‑serious‑crime framework, and consideration of material expert evidence for CAT).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / changed circumstances for asylum (1‑year bar) | Ojo: his status as a criminal deportee and increased Boko Haram violence are changed circumstances excusing late filing. | Govt/BIA: late filing not excused because changed/extraordinary circumstances were caused by Ojo's own criminal conduct. | Court: BIA/IJ applied wrong legal standard by treating the "not intentionally created by the alien" requirement (8 C.F.R. §1208.4(a)(5)) as applying to "changed circumstances" (§1208.4(a)(4)); remand required. |
| Discretionary denial of asylum | Ojo: IJ credited testimony and raised favorable mitigating factors that should be weighed. | Govt: denial in exercise of discretion justified by serious fraud and criminal history. | Court: IJ's denial was conclusory and failed to analyze the totality of circumstances / balance favorable and adverse factors; remand required. |
| Withholding of removal — "particularly serious crime" determination | Ojo: agency failed to apply its own two‑step N‑A‑M‑ framework; mischaracterized offenses. | Govt: convictions and facts (victims, restitution) support determination that crimes were particularly serious. | Court: agency erred at step one by treating wire fraud/identity theft as "crimes against persons" and failing to perform required elements‑only threshold analysis under Matter of N‑A‑M‑; remand required. |
| CAT protection — consideration of expert evidence | Ojo: IJ/BIA ignored unrebutted expert declaration showing criminal deportees face detention/torture. | Govt: IJ implicitly considered the declaration or it added nothing that would change outcome. | Court: agency failed to indicate it considered or to explain rejection of material expert evidence; remand required. |
Key Cases Cited
- Garland v. Ming Dai, 141 S. Ct. 1669 (Sup. Ct. 2021) (reviewing court must uphold agency action if the agency’s path may reasonably be discerned)
- Wu Zheng Huang v. INS, 436 F.3d 89 (2d Cir. 2006) (asylum discretionary balancing requires consideration of totality and mitigating factors)
- Nethagani v. Mukasey, 532 F.3d 150 (2d Cir. 2008) (framework for assessing "particularly serious crime" and relevance of crimes against persons vs. property)
- Manning v. Barr, 954 F.3d 477 (2d Cir. 2020) (agency must consider unrebutted expert affidavits in CAT analysis)
- Delgado v. Mukasey, 508 F.3d 702 (2d Cir. 2007) (failure to consider material evidence is ground for remand)
- Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104 (2d Cir. 2007) (substantial‑evidence standard and requirement for IJ/BIA analysis sufficient for meaningful review)
- I.N.S. v. Orlando Ventura, 537 U.S. 12 (U.S. 2002) (courts ordinarily remand to agency for further explanation rather than substitute their judgment)
- SEC v. Chenery Corp., 318 U.S. 80 (U.S. 1943) (appellate courts must judge agency action by reasons the agency invoked, not post hoc rationalizations)