Sylvester Owino v. Eric Holder, Jr.
2014 U.S. App. LEXIS 21062
| 9th Cir. | 2014Background
- Owino, a Kenyan citizen, sought asylum, withholding of removal, and CAT relief; he had prior California robbery conviction and removal proceedings.
- On remand, Owino submitted new arrest documents and medical letters; the IJ denied admission of evidence and CAT relief, BIA affirmed.
- The panel found the continuance denial improper under An Na Peng factors and that authentication of a key arrest warrant was misapplied.
- The panel also held that the government violated confidentiality 8 C.F.R. § 208.6 by disclosing documents to Kenyan police, and questioned the adequacy of CAT analysis and credibility facts.
- Remand was ordered to reassess continuance, confidentiality-related CAT claim, and overall credibility and CAT evidence on the full record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ abused discretion by denying a late motion for evidence | Owino argues An Na Peng factors warrant admission | Hearing officer found no justification for late submission | Remand for reconsideration under An Na Peng |
| Whether the government breached confidentiality under 8 C.F.R. § 208.6 | Disclosure to Kenyan police violated confidentiality | Regulation did not mandate remedy; no new CAT claim | Remand to determine if breach gives rise to new CAT relief |
| Whether overseas investigation evidence violated due process | Due process requires fair evaluation of probative evidence | Angov forecloses due process claim here | Foreclosed by Angov; issue not decided further here |
| Whether the BIA inadequately considered CAT-related evidence | Important medical and witness evidence was undervalued | BIA need not discuss every piece of evidence | Remand to reconsider consideration of all CAT evidence |
| Whether credibility findings were properly supported | Total record supports positive credibility | Adverse credibility sustained by inconsistencies | Remand to re-evaluate credibility on complete record |
Key Cases Cited
- An Na Peng v. Holder, 673 F.3d 1248 (9th Cir. 2012) (An Na Peng factors govern continuance decisions)
- Khan v. INS, 237 F.3d 1143 (9th Cir. 2001) (Non-exclusive routes to authentication of documents)
- Espinoza v. INS, 45 F.3d 308 (9th Cir. 1995) (Authentication methods may vary from regulation 287.6(b))
- Angov v. Holder, 736 F.3d 1263 (9th Cir. 2013) (Due process challenges to overseas investigation evidence foreclosed in this circuit)
- Lin v. DOJ, 459 F.3d 255 (2d Cir. 2006) (Confidentiality disclosures and inferences about asylum application risks)