UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT PETER DONATUS UDO, No. 20-70078 Petitioner, Agency No. V. A208-309-125 MERRICK B. GARLAND, Attorney General, OPINION Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 18, 2021 San Francisco, California Filed May 4, 2022 Before: Sidney R. Thomas and M. Margaret McKeown, Circuit Judges, and Donald W. Molloy,* District Judge. Opinion by Judge McKeown

* The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 2 UDO V. GARLAND

SUMMARY™

Immigration Granting in part, and denying in part, Peter Donatus Udo’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that the Board erred in affirming an immigration judge’s frivolous asylum application determination and the denial of protection under the Convention Against Torture. Udo asserted a fear of persecution or torture in Nigeria based on his status as a gay man, and the harm he suffered after being discovering having sex with his boyfriend in a hotel. The IJ found that Udo was not credible because he “misrepresented” the name of the hotel where he and his boyfriend were discovered and because Udo was often unresponsive and inconsistent in his testimony. As a result, the IJ found that Udo failed to establish that he is gay or that he was ever harmed in Nigeria for being a gay person. The IJ also found that Udo’s asylum application was frivolous because he deliberately fabricated a material element of his asylum application—the location where Udo and his boyfriend were discovered. Before this court, Udo did not challenge the agency’s credibility determination or the denial of asylum relief. Instead, he argued that the agency (1) erred by failing to consider potentially dispositive evidence concerning his CAT claim; (2) violated due process in its CAT

*“ This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UDO V. GARLAND 3

determination; and (3) erred in concluding that he had filed a frivolous asylum application. The panel agreed with Udo that the Board erred by failing to consider potentially dispositive evidence concerning his CAT claim. The panel noted that the Board did not mention at all an excommunication notice from the “Council of Traditional Rulers” of Udo’s Nigerian community stating that he was subject to execution for being gay, and the Board made only fleeting reference to a collection of letters and affidavits from Udo’s family members describing in detail the attacks Udo suffered, his escape from Nigeria, and the threats Udo and his family members received after his sexuality was publicly revealed. The panel wrote that this evidence was potentially dispositive of Udo’s CAT claim because it provided the missing factual finding—that Udo was gay and persecuted on that basis. The panel wrote that Udo’s adverse credibility determination was not necessarily a death knell to his CAT claim, and that because the evidence he submitted was potentially dispositive of his claim, the agency erred by failing to give “reasoned consideration” to it. In light of its determination that the agency’s denial of CAT relief could not stand, the panel did not reach, and therefore denied the petition as to, whether the agency’s failure to consider the documentary evidence violated Udo’s Fifth Amendment due process rights in addition to immigration regulations. The panel also held that the Board erred in concluding that Udo had filed a frivolous asylum application, because any fabrication concerning the name of the hotel where Udo was discovered did not concern a material element of Udo’s asylum claim. Acknowledging that the location where Udo’s past persecution occurred could have been relevant to 4 UDO V. GARLAND

the agency’s credibility determination, the panel wrote that the locat