FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER DONATUS UDO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 20-70078

Agency No.

A208-309-125

OPINION

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 location of the hotel was at best ancillary to the elements 

Udo needed to prove to succeed on his asylum claim.

COUNSEL

David C. Casarrubias (argued), Alexandra V. Atencio, and 

Breana L. Burgos, Hanson Bridgett LLP, San Francisco, 

California, for Petitioner.

Sheri R. Glaser (argued), Trial Attorney; Jonathan Robbins, 

Senior Litigation Counsel; Brian Boynton, Acting Assistant 

Attorney General; Office of Immigration Litigation, Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Respondent.

OPINION

McKEOWN, Circuit Judge:

Peter Donatus Udo is a citizen of Nigeria who applied 

for asylum, withholding of removal, and relief under the 

Convention Against Torture (“CAT”) in the United States on 

the grounds that he feared violence in Nigeria as a gay man. 

Specifically, the Council of Traditional Rulers of Udo’s 

community in Nigeria decreed that he was subject to “public 

execution” because he was found “practicing 

homosexuality.” Although the immigration judge (“IJ”) and 

the Board of Immigration Appeals (the “BIA” or the 

“Board”) denied relief on the grounds that Udo was not 

credible, the BIA failed to give reasoned consideration to 

key evidence that was independent of Udo’s testimony, 

namely the Council’s decree and a collection of letters and 
UDO V. GARLAND 5

affidavits supplied by Udo’s family members. The BIA also 

erred in deeming Udo’s asylum application frivolous 

because any fabrication was not of a material element of 

Udo’s asylum claim.

I. Background

Before the IJ, Udo testified to the following: Being gay 

is a crime in Nigeria punishable by over ten years in prison. 

Udo is gay. In 2015, he and his boyfriend had a clandestine 

meeting at a Sheraton hotel in Ikot Ekpene, Nigeria. In the 

early morning hours, a waiter delivering breakfast opened 

the door without knocking to find Udo and his boyfriend 

having sex. The waiter screamed and called hotel security, 

which detained the couple and called a local “community 

security” group to report the incident. The security group 

tied Udo and his boyfriend by their hands and legs, 

threatened to kill them for committing an “abomination,” 

and took them away. For the next six hours, the group beat 

the couple with sticks and metal rods, spit on them, threw 

sand in their eyes, and yelled anti-gay slurs. The beating 

caused Udo to bleed and eventually scar. Udo was taken to 

a detention center from which he escaped. He then traveled 

to a distant town where he was treated for his injuries at a 

hospital with the help of a stranger.

After recovering, Udo contacted his mother, who told 

him that the Nigerian police had come looking for him at his 

home. She also told him that the leaders of his village had 

asked her to turn in Udo because he had committed an 

abomination and should be put to death. Udo’s mother met 

him at a bus stop the next day, gave him clothes and money, 

and told him to flee. Udo traveled to the United States.

Udo submitted documentary evidence to support his 

application. Most important for this appeal are (1) the 
6 UDO V. GARLAND

“excommunication notice” from the “Council of Traditional 

Rulers” of Udo’s Nigerian community stating that he is 

subject to execution for being gay, and (2) a collection of 

letters and affidavits from Udo’s family members describing 

in detail the attacks Udo suffered after his discovery at the 

hotel, his escape from Nigeria following the incident, and the 

threats Udo and his family members received from Nigerian 

police and local security groups after his sexuality was 

publicly revealed.

On cross-examination, the government asked Udo the 

name of the hotel where he and his boyfriend were found 

together. Udo testified that it was the Sheraton Hotel in Ikot 

Ekpene, Nigeria. The government presented evidence that 

there was no Sheraton Hotel in Ikot Ekpene. Udo explained 

that he referred to the “Sheraton Hotel” instead of the

“Sinadee Hotel” because the Sheraton was a more 

recognizable landmark. When the government asked Udo 

why he had lied about the name of the hotel, Udo testified 

that he was afraid.

The IJ found Udo not credible because Udo 

“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” 

and denied Udo asylum, withholding, and CAT relief. 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. The BIA adopted and affirmed 

the IJ’s decision.

Udo presents us with three issues: (1) whether we should 

remand Udo’s CAT claim because the BIA failed to properly 
UDO V. GARLAND 7

consider potentially dispositive evidence; (2) whether the 

BIA violated Udo’s due process rights in its CAT relief 

determination; and (3) whether the BIA erred in determining 

that Udo’s asylum claim was frivolous. Where, as here, the 

Board adopts the IJ’s decision citing Matter of Burbano, 

20 I. & N. Dec. 872 (B.I.A. 1994) and provides its own 

review of the evidence and law, we review the decisions of 

both the BIA and the IJ. Aguilar Fermin v. Barr, 958 F.3d 

887, 891 (9th Cir. 2020), cert. denied, 141 S. Ct. 664 (2020). 

We review the Board’s “legal conclusions de novo and its 

factual findings for substantial evidence.” BringasRodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)

(en banc) (citations omitted).

II. The BIA erred when it failed to give reasoned 

consideration to potentially dispositive evidence 

related to Udo’s CAT claim.

We grant Udo’s petition for review of his CAT claim and 

remand that claim to the BIA. The Board failed to give 

reasoned consideration to the potentially dispositive 

evidence that Udo submitted, including the 

excommunication notice and letters and affidavits from 

Udo’s family members.

To be eligible for CAT relief, Udo must establish that if 

removed to Nigeria, he would “more likely than not” be 

tortured. Akosung v. Barr, 970 F.3d 1095, 1104 (9th Cir. 

2020) (quoting 8 C.F.R. § 1208.16(c)(2)). “Torture is an 

extreme form of cruel and inhuman treatment that either 

(1) is not lawfully sanctioned by that country or (2) is 

lawfully sanctioned by that country, but defeats the object 

and purpose of CAT.” Mairena v. Barr, 917 F.3d 1119, 

1125 (9th Cir. 2019) (quoting Konou v. Holder, 750 F.3d 

1120, 1124 (9th Cir. 2014)). It is important to keep in mind 

that the CAT standard is “distinct” from that of asylum and 
8 UDO V. GARLAND

the two bases for relief “should not be conflated.”1 Farah v. 

Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003). Udo’s 

adverse credibility determination “is not necessarily a death 

knell to CAT protection” if other evidence in the record 

alone establishes that he is eligible for CAT relief. Shrestha 

v. Holder, 590 F.3d 1034, 1048–49 (9th Cir. 2010). In 

making its CAT determination, the agency must consider 

“all evidence relevant to the possibility of future torture.” 

8 C.F.R. § 1208.16(c)(3). “In particular, where potentially 

dispositive testimony and documentary evidence is 

submitted, the BIA must give reasoned consideration to that 

evidence.” Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 

2011) (emphasis added).

A. The documentary evidence was potentially 

dispositive.

The agency predicated denial of Udo’s CAT claim on the 

adverse credibility determination: Because Udo’s testimony 

was not credible, the agency found that he “failed to 

establish that he is gay or that he was ever harmed in Nigeria 

for being a gay person.” But this finding is not supported by 

substantial evidence. Instead, the “excommunication 

notice” combined with his family’s letters and affidavits 

leave no doubt that Udo is gay and was subjected to violent 

attacks in Nigeria on the basis of his sexuality. This 

documentary evidence is “potentially dispositive” to his 

CAT claim. Cole, 659 F.3d at 772.

The “excommunication notice” clearly states that Udo 

was “caught practicing” prohibited sexual acts including 

“homosexuality, bisexual, trans-gender or any other related 

1 On appeal, Udo does not challenge the adverse credibility finding 

or the denial of asylum relief.
UDO V. GARLAND 9

[] act”; he was “apprehended, detained for execution and he

escaped”; and he is now subject to “public execution” as a 

result. The notice was issued by the “Disciplinary 

Committee” of the “Council of Traditional Rulers” of the 

Ukana Community to Udo’s family and signed by the 

Chairman of the Disciplinary Committee, the Secretary, and 

the Village Head of Ukana Ikot Otu. A copy of the notice is 

included here.
10 UDO V. GARLAND
UDO V. GARLAND 11

Corroborating this decree, Udo’s family members 

submitted multiple letters and affidavits that detail the 

violence that Udo experienced in Nigeria after he was 

discovered with his boyfriend and support Udo’s claim that 

he will more likely than not be tortured if he is returned. For 

example, Udo’s mother submitted an affidavit stating that on 

April 16, 2015, Udo “was caught by the Ikot Ekpene Police 

Area command Headquarters, Nigeria for Homosexuality at 

SINADEE Hotel at No: 53 Aba Road, Ikot Ekpene, Akwa 

Ibom State, Nigeria,” that “local police in Nigeria are on 

[his] trails,” and that the police “have been raiding [her] 

house periodically thereby making life unpleasant, unsafe 

and unsecured.” According to her affidavit, Udo’s mother 

“was left with no other alternative than to use [her] entire 

resources to mobilize him to flee Nigeria for safety and 

protection.”

Similarly, Udo’s brother, Anthony Donatus Peter, wrote 

that Udo “was harmed, mistreated, tortured” by “a local 

security outfit for his perceived sexual orientation which is 

against culture and tradition and Nigerian law which 

prescribed death sentence and 14 years imprisonment” for 

the offense. Compounding the family’s suffering, their 

home became “a surveillance point for this Vigilante group 

who want to kill [his] brother by all means.” Anthony added 

that Udo’s mother had “spent her last saving [sic] to sponsor 

[Udo’s] trip to United States of America” because his family 

“never want him to return to Nigeria for his safety.” Udo’s 

sister, Agnes Donatus Peter, wrote that on April 23, 2015, 

“the police came to arrest [Udo] and fortunately he ran 

away” and “he doesn’t commit any crime except 

homosexuality.”

Had the agency accorded any weight to this evidence, it 

could have concluded at the very least that Udo is “gay [and] 
12 UDO V. GARLAND

that he was [] harmed in Nigeria for being a gay person”—

the missing factual finding upon which the agency 

predicated its denial of CAT relief. Thus, the 

excommunication letter and the letters and affidavits from 

his family members are “potentially dispositive.” Cole, 

659 F.3d at 764.

B. The agency failed to give reasoned consideration 

to potentially dispositive evidence.

Confronted with this potentially dispositive evidence, 

the agency failed to give it reasoned consideration. Cole, 

659 F.3d at 773. Remarkably, the BIA did not reference the 

excommunication notice at all in its five-page order. The 

BIA mentioned Udo’s mother’s affidavit only once in its 

asylum frivolousness determination, and did not otherwise 

mention Udo’s family’s letters and affidavits. The IJ 

acknowledged the documentary evidence in passing in her 

decision, but failed to mention it at all in her discussion of 

Udo’s CAT claim.

In the face of persuasive evidence, the agency’s 

dismissive, fleeting reference to that evidence is insufficient 

and falls far short of the agency’s obligation to give 

“reasoned consideration” to the evidence. This deficiency is 

underscored where, as here, “there is any indication that the 

BIA did not consider all of the evidence before it.” Cole, 

659 F.3d at 771–72. The key factual issues, according to the 

BIA, related to whether Udo was gay and whether he was 

detained, threatened with death, and beaten for his perceived 

sexuality. Udo’s documentary evidence is highly probative 

of both issues and contradicts the agency’s ultimate 

conclusion—a strong indication that the agency “did not 

consider all of the evidence before it.” Id. This is especially 

true here because there is a “significant and material 

disconnect” between what the evidence says and the 
UDO V. GARLAND 13

agency’s “conclusions regarding [Udo’s] CAT claim.” 

Parada v. Sessions, 902 F.3d 901, 915–16 (9th Cir. 2018) 

(citing Cole, 659 F.3d at 771–72); see also Etemadi v. 

Garland, 12 F.4th 1013, 1025 (9th Cir. 2021).

The cases cited by the Government are not to the 

contrary. In Manes v. Sessions, unlike here, there was no 

indication that the BIA had failed to consider all the 

evidence, not in the least because the objective evidence 

Manes presented—country conditions reports—had little 

probative value for his particular CAT claim. 875 F.3d 

1261, 1265 (9th Cir. 2017). And in contrast to Udo’s case, 

in Najmabadi v. Holder, there was “no indication that the 

Board failed to credit” the truth of an affidavit’s factual 

allegations. 597 F.3d 983, 990 (9th Cir. 2010). The 

Government’s references do not undermine our conclusion 

in any way.

Because there is a strong “indication that the BIA did not 

consider all of the evidence before it . . . the decision cannot 

stand.” Etemadi, 12 F.4th at 1026 (quoting Cole, 659 F.3d 

at 771–72).2

III. Udo’s Asylum Claim was not Frivolous.

The consequences of filing a frivolous asylum 

application are severe. Noncitizens found to have 

knowingly filed such applications are “permanently 

2 We do not reach whether the agency’s failure to consider the 

documentary evidence violated Udo’s Fifth Amendment due process 

rights in addition to immigration regulations. See Ashwander v. Tenn.

Valley Auth., 297 U.S. 288, 347 (1936) (“[Courts] will not pass upon a 

constitutional question although properly presented by the record, if 

there is also present some other ground upon which the case may be 

disposed of.”).
14 UDO V. GARLAND

ineligible for any benefits under [the Immigration and 

Nationality Act]” including asylum. 8 U.S.C. § 1158(d)(6). 

To find an asylum application frivolous, the agency must 

make a specific finding that an alien “deliberately 

fabricated” a “material element” of the application. 8 C.F.R. 

§ 208.20; see also In re Y–L–, 24 I. & N. Dec. 151, 162 n.1 

(B.I.A. 2007). Whether a fabrication encompassed material 

elements of a claim is a mixed question of fact and law that 

we review de novo. See Khadka v. Holder, 618 F.3d 996, 

1002 (9th Cir. 2010).

The BIA determined that Udo had deliberately fabricated 

a “material element” of his asylum application, “namely, the 

location of where his alleged past persecution occurred.” On 

this basis, the BIA found Udo’s asylum application to be 

frivolous. We disagree.

The name of the hotel where Udo and his boyfriend were 

allegedly caught having sex is not a “material element” of 

Udo’s asylum application. We evaluate whether a given 

aspect of a petitioner’s asylum application was a “material 

element” of that application by reference to the meaning of 

“element,” i.e.,“[a] constituent part of a claim that must be 

proved for the claim to succeed.” Id. at 1004 (quoting 

Element, Black’s Law Dictionary (9th ed. 2009)). For Udo’s 

asylum claim to succeed, he must prove that he “is unable or 

unwilling to return to his home country because of a wellfounded fear of future persecution on account of race, 

religion, nationality, membership in a particular social 

group, or political opinion.” Bringas-Rodriguez, 850 F.3d at 

1062 (quoting Navas v. INS, 217 F.3d 646, 654 (9th Cir. 

2000)). Because he predicates his fear of future persecution 

on allegations of past persecution, Udo “has the burden of 

establishing that (1) his treatment rises to the level of 

persecution; (2) the persecution was on account of one or 
UDO V. GARLAND 15

more protected grounds; and (3) the persecution was 

committed by the government, or by forces that the 

government was unable or unwilling to control.” Guo v. 

Sessions, 897 F.3d 1208, 1213 (9th Cir. 2018) (quoting 

Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 

2010)).

We acknowledge that the location where Udo’s past 

persecution occurred, be it the Sheraton Hotel or the Sinadee 

Hotel, could be relevant to the agency’s credibility 

determination. However, the location is at best ancillary to 

these “constituent part[s] . . . that must be proved for [Udo’s 

asylum application] to succeed,” and is certainly not a 

“material element” of his asylum claim. Khadka, 618 F.3d 

at 1004. We reverse the agency’s determination that Udo’s 

asylum application was frivolous.

In doing so, we decline the Government’s invitation to 

import the Supreme Court’s framework for assessing 

materiality from judicial denaturalization proceedings 

brought under 8 U.S.C. § 1451(a), instead of following the 

Ninth Circuit’s framework in Khadka, which directly 

addressed a frivolousness finding in the asylum context. 

Because the Government’s proposed approach stems from a 

different form of proceeding under a different statutory 

framework, we follow the Ninth Circuit standard.

IV. Conclusion

We GRANT Udo’s petition for review as to his CAT 

claim and as to the agency’s frivolousness determination. 

We DENY Udo’s petition for review as to his due process 

claim. We REMAND this case to the BIA. Udo is awarded 

his costs on appeal.