FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SYLVESTER OWINO, 

Petitioner, No. 06-74297

v. Agency No.  A097-469-354 ERIC H. HOLDER Jr., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 23, 2009—Seattle, Washington

Filed August 4, 2009

Before: Betty B. Fletcher, Raymond C. Fisher and

Ronald M. Gould, Circuit Judges.

Per Curiam Opinion

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COUNSEL

Sylvester Owino (pro se), James Fife (argued), Federal Public

Defenders of San Diego, Inc., San Diego, California, for the

petitioner-appellant.

Peter D. Keisler, Assistant Attorney General, Civil Division;

Richard Evans, Assistant Director; Andrew J. Oliveira

(argued), Office of Immigration Litigation, Washington, D.C.,

for the respondent-appellee.

OPINION

PER CURIAM:

Sylvester Owino petitions for review of the Board of Immigration Appeal’s (“BIA”) final order of removal, which found

him credible but denied his requests for asylum, withholding

of removal and deferral of removal under the Convention

Against Torture (“CAT”). He appeals only the BIA’s denial

of deferral of removal under CAT. We have jurisdiction under

8 U.S.C. § 1252(a)(1). We grant Owino’s petition and remand

to the IJ on an open record.1

I. BACKGROUND

Owino is a citizen of Kenya who entered the United States

in 1998 on a student visa. Owino was convicted of second

degree robbery in California in 2003. After serving his threeyear sentence, he was detained by the Department of Homeland Security and served with a notice to appear, alleging he

was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii),

which covers aliens convicted of an aggravated felony. Owino

1

In a related case, Owino challenges the legality of his civil confinement

by the Department of Homeland Security. We concurrently decide that

appeal in Owino v. Napolitano, 08-56392. 

OWINO v. HOLDER 10633
admitted all factual allegations and applied for asylum, withholding of removal and CAT relief. He testified before an

immigration judge (“IJ”) that he feared returning to Kenya

because on two occasions he had been violently abused by

police for his public criticism of the government and his support of women’s rights. After that hearing, Owino submitted

for the record a letter from his brother, warning him not to

return to Kenya because the police would kill him if he

returned. At Owino’s final hearing, his brother was available

to testify telephonically from Europe. The IJ never explicitly

excluded Owino’s brother’s testimony, but the hearing concluded without it.

The IJ denied all relief. The IJ found that Owino’s aggravated felony conviction barred him from asylum and CAT

withholding, see 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i),

and that Owino’s crime was “particularly serious,” barring

him from withholding of removal, see 8 U.S.C.

§ 1231(b)(3)(B)(ii). Owino does not appeal these decisions.

The IJ also addressed the merits of Owino’s request for deferral of removal under CAT — because deferral has no criminal

conviction bar, see 8 C.F.R. § 1208.17 — and denied Owino

relief. The IJ found Owino not credible, assuming that his

story would be susceptible to documentary evidence that

Owino failed to supply. The IJ further found that Owino did

not meet his burden to show it was more likely than not he

would be tortured in Kenya because Owino did not demonstrate a nexus between general police corruption in Kenya and

a likelihood that Owino would himself be tortured if he

returned. Owino appealed to the BIA and proffered additional

documentary evidence with his brief. The BIA refused the

new evidence, but reversed the IJ’s credibility determination

as unsupported by the record, without mentioning the standards imposed by the REAL ID Act. See 8 U.S.C.

§ 1158(b)(1)(B)(iii). The BIA nevertheless dismissed

Owino’s appeal because it agreed with the IJ that Owino

failed to establish a nexus between corruption of some

Kenyan officials and Owino’s fear of being tortured. Further,

10634 OWINO v. HOLDER
the BIA noted the need for corroborating evidence to bolster

Owino’s generalized testimony. Owino argues that (1) the IJ

and the BIA applied the wrong legal standard to his CAT

claim; (2) the IJ violated his due process rights by failing to

allow his brother to testify telephonically; and (3) the BIA

violated his due process rights by failing to consider the additional documentary evidence submitted with Owino’s BIA

brief. 

II. ANALYSIS

We first address our jurisdiction. Although Owino is

removable by reason of having committed an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), the government correctly concedes that “[t]he jurisdiction-stripping provision of

8 U.S.C. § 1252(a)(2)(C) does not deprive us of jurisdiction

over denials of deferral of removal under the CAT.” LemusGalvan v. Mukasey, 518 F.3d 1081, 1083 (9th Cir. 2008). We

therefore have jurisdiction over the final order of removal

under 8 U.S.C. § 1252(a)(1).

[1] On the merits of his CAT deferral claim, Owino argues

that the BIA erroneously required him to corroborate his credible testimony and urges us to remand for reconsideration

under the proper legal standard, invoking cases such as

Karapetyan v. Mukasey, 543 F.3d 1118, 1123-24 (9th Cir.

2008), a pre-REAL ID Act case holding that an IJ may not

require corroboration of credible testimony. However, the

REAL ID Act applies here, because Owino’s application for

relief from removal was filed January 18, 2006. The Act

establishes the proper legal standards governing adverse credibility determinations. See 8 U.S.C. § 1158(b)(1)(B)(iii). Even

assuming credibility, the Act permits an IJ to “determine[ ]

that the applicant should provide evidence which corroborates

otherwise credible testimony.” 8 U.S.C. § 1229a(c)(4)(B).

The government urges us to remand for application of these

standards to Owino’s case. Because neither the IJ nor the BIA

applied the REAL ID Act, we agree with the government, and

OWINO v. HOLDER 10635
remand to the IJ on an open record to determine the merits of

Owino’s application under the REAL ID Act’s standards. See

INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). 

Accordingly, we need not reach Owino’s due process arguments regarding evidence he proffered to the IJ and BIA. As

the government agreed at oral argument, both parties will be

able to supplement the record with admissible evidence on

remand, so Owino will be able to proffer his brother’s relevant testimony, the documents he appended to his BIA brief

and evidence of current conditions in Kenya. We do not, of

course, rule on the admissibility or probity of such evidence.

PETITION GRANTED AND REMANDED.

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