19-3237 Ojo v. Garland United States Court of Appeals for the Second Circuit _____________________________________ August Term 2020 (Argued: December 16, 2020 Decided: February 9, 2022) No. 19-3237 _____________________________________ OLUKAYODE DAVID OJO, AKA DAVID OLUKAYODE OJO, AKA OLUKAYODE OJO, Petitioner, — v. — MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, * Respondent. _____________________________________ Before: CHIN, BIANCO, AND MENASHI, Circuit Judges. Olukayode David Ojo, a native of Nigeria, seeks review of a September 27, 2019 decision of the Board of Immigration Appeals affirming an April 15, 2019 decision of an immigration judge, which denied asylum, withholding of removal, and relief under the Convention Against Torture. See In re Olukayode David Ojo, No. A088-444-553 (B.I.A. Sept. 27, 2019), aff’g No. A088-444-553 (Immigr. Ct. N.Y.C. Apr. 15, 2019). * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), United States Attorney General Merrick B. Garland is automatically substituted for former Attorney General William P. Barr as Respondent. We grant Ojo’s petition for review and vacate the agency’s denial of Ojo’s claims for asylum, withholding of removal, and CAT protection because those determinations were permeated with several legal and procedural errors. First, insofar as Ojo’s request for asylum was rejected as untimely, the agency applied the wrong legal standard to his claim of changed circumstances and the agency’s alternative discretionary determination failed to indicate the requisite examination of the totality of the circumstances. Second, with respect to Ojo’s application for withholding of removal, the agency erred when it incorrectly categorized his federal conviction for wire fraud and identity theft as “crimes against persons,” and concluded that they fell within the ambit of “particularly serious crimes” without evaluating the elements of the offenses as required under the agency’s own precedent. Finally, with respect to his CAT claim, the agency erred in concluding that Ojo lacked a reasonable fear of future persecution or torture in Nigeria due to his status as a criminal deportee without even addressing the declaration of his expert supporting his claim. Accordingly, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this opinion. JUDGE MENASHI dissents in a separate opinion. BENJAMIN L. NELSON, Monroe County Public Defender’s Office, Rochester, New York, for Petitioner. ARIC A. ANDERSON, TRIAL ATTORNEY (Holly M. Smith, Senior Litigation Counsel, on the brief), for Brian M. Boynton, Acting Assistant Attorney General, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. 2 _____________________________________ JOSEPH F. BIANCO, Circuit Judge: Petitioner Olukayode David Ojo, a native of Nigeria, seeks review of a September 27, 2019 decision of the Board of Immigration Appeals (the “BIA”) affirming an April 15, 2019 decision of an immigration judge (the “IJ”, together with the BIA, the “agency”), which denied Ojo’s claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Olukayode David Ojo, No. A088-444-553 (B.I.A. Sept. 27, 2019), aff’g No. A088-444- 553 (Immigr. Ct. N.Y.C. Apr. 15, 2019). We grant Ojo’s petition for …
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