NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Monsuru Wole Sho,

Petitioner,

v. Merrick B. Garland, U.S. Attorney General, Respondent. No. 21

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- 950

- 100

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted F ebruary 15, 2023 San Francisco, C alifornia
Before: S.R. THOMAS, MILLER, and SANCHEZ , Circuit Judges

. Monsuru Wole Sho, a native and citizen of Nigeria, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his application for relief under the
Convention A gainst Torture (“CAT”)

. 1 We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

1 The IJ found Sho statutorily ineligible for asylum and withholding of removal after determining that his prior kidnapping conviction constituted a particularly serious crime . Sho only appeals the agency’s CAT determination. 

# FILED

MAR 1 2023
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 21

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“We review de novo claims of

. . . due process violations in removal proceedings.” Cruz Rendon v. Holder , 603 F.3d 1104, 1109 (9th Cir. 2010). “To prevail on a due process challeng e to deportation proceedings, [ the petitioner ] must show error and substantial prejudice.” Lata v. INS , 204 F.3d 1241, 1246 (9th Cir. 2000). Where, as here, the BIA adopted and affirmed the IJ’s decision pursuant to Matter of Burbano , 20 I. & N. Dec. 872 , 874 (B.I.A. 1994), we “revisit both decisions and treat the IJ’s reasons as those of the BIA

. ”
Gutierrez v. Holder , 662 F.3d 1083, 1086 (9th Cir. 2011)

. 1. In support of his asylum application, Sho submitted two documents demonstrating he had been targeted for persecution as a homosexual: an extract from a Nigerian police diary detailing Sho’s arrest for participating in a
homosexual act , and a Nigerian wanted poster stating that Sho had jumped bail
for a homosexual offense. Sho argues that the agency viol ated his right to due process by relying on a report of investigation (“ROI”) from the U.S. Embassy Fraud Prevention Program , which concluded that the two documents were forged , without affording him a meaningful opportunity to challenge the reliability of the ROI

. According to the ROI, an unnamed investigator visited the Kaduna State
Command , and “[a]fter a series of telephone calls and verifications , it was
discovered ” that the officer who signed the police diary never served at the

Mar a ba police station, the officer’s personnel number did not exist, and the police diary’s letterhead, form, signature, and stamp were “irregular.” In3 21

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addition, an unnamed police commissioner’s assistant explained that the wanted poster was not authentic becau se it failed to conform to the proper format.

We hold that the introduction of the ROI violated Sho’s due process rights because he was not provided “a meaningful opportunity to rebut the government’s fraud allegations.” Grigoryan v. Barr , 959 F.3d 1233, 1240 (9th Cir. 2020)

. The ROI at issue here suffer s from similar deficiencies to the ROI
in Grigoryan . In both, the D epartment of Homeland Security failed to “identify any of the named individuals, present supporting evidence to explain the nature of the investigation, produce the referenced exemplars, or proffer any government witnesses about the alleged fraud.” Id. There is no indication that
the investigator here sought to obtain exemplar s to confirm that the proffered documents were missing information

. T he agency erred in admitting the ROI without affording Sho a meaningful opportunity to rebut its conclusions. See id. (c iting Banat v. Holder , 557 F.3d 886, 891 (8th Cir. 2009) ; Anim v. Mukasey , 535 F.3d 243, 256

– 58 (4th Cir. 2008); Alexandrov v. Gonzales , 442 F.3d 395, 407 (6th Cir. 2006) )

. 2. The erroneous introduction of the ROI prejudiced Sho. To establish prejudice, a petitioner must show that “the outcome of the proceeding may have been affected by the alleged violation.” Id. (quoting Colmenar v.
INS , 210 F.3d 967, 971 (9th Cir. 2000)). “The standard does not demand absolute certainty.” Z

olotukhin v. Gonzale s , 417 F.3d 1073, 1077 (9th Cir. 2005).4 21

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In Udo v. Garland , 32 F.4th 1198 (9th Cir. 2022), the agency denied the petitioner’s CAT claim after finding his testimony lacked credib ility and he “failed to establish that he is gay or that he was ever harmed in Nigeria for being a gay person.” Id. at 1203. We remanded the case because the agency “failed to give reasoned consideration to key evidence that was independent of Udo’s testimony”

—

namely, an “excommunication notice” that stated the

p etitioner was caught practicing prohibited sexual acts, as well as affidavits and letters from family members detailing the violence committed against the petitioner after he was discovered with his boyfriend. Id. at 1201. By relying on the ROI, the IJ disregarded independent evidence of Sho ’s
arrest and detention for being homosexual as detailed in a police diary and a wanted poster describing the continu ing search for him in Nigeria

. These documents are potentially dispositive of Sho’s CAT claim because they independently confirm Sho’s homosexuality, past arrest and detention , and
likelihood of future torture. In addition, the police documents could have “corroborated [Sho’s] testimon y had they not been deemed fraudulent.” Cinapian v. Holder , 567 F.3d 1067, 1076 (9th Cir. 2009)

. 2

W e grant the petition and remand to the BIA so that it may grant Sho a

2 We need not reach Sho’s argument that the record compels a reversal of the agency’s adverse credibility finding. After a new hearing in which Sho has a meaningful opportunity to challenge the ROI, the IJ may then assess his credibility based on all available inf ormation. “There is no reason to prejudge that determination.” Cinapi a n , 567 F.3d at 1077

.5 21

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new hearing. The motion for a stay of removal (Dkt. No. 2 ) is granted. The
stay o f removal remains in place until the mandate issues.
PETITION GRANTED.