Case: 21-1414, 03/01/2023, DktEntry: 50.1, Page 1 of 5 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 1 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT Monsuru Wole Sho, No. 21-1414 Petitioner, Agency No. A094-950-100 v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 15, 2023 San Francisco, California 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 Against 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. Case: 21-1414, 03/01/2023, DktEntry: 50.1, Page 2 of 5 “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 challenge 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 violated 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 Maraba police station, the officer’s personnel number did not exist, and the police diary’s letterhead, form, signature, and stamp were “irregular.” In 2 21-1414 Case: 21-1414, 03/01/2023, DktEntry: 50.1, Page 3 of 5 addition, an unnamed police commissioner’s assistant explained that the wanted poster was not authentic because it failed to conform to the proper format. We hold that the introduction of the ROI violated Sho’s due process rights because …
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