FILED
NOT FOR PUBLICATION AUG 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUKHWINDER SINGH, No. 09-71716
Petitioner, Agency No. A098-516-321
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 15, 2010
Seattle, Washington
Before: REINHARDT, GRABER, and PAEZ, Circuit Judges.
Sukhwinder Singh, a citizen and native of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) affirmance of the immigration judge’s
(“IJ”) order denying him asylum, withholding of removal, and Convention Against
Torture (“CAT”) relief. We have jurisdiction under 8 U.S.C. § 1252, and we grant
the petition and remand on an open record.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The BIA affirmed the IJ’s denial of relief on the ground that he lacked
credibility. Because the BIA reviewed the IJ’s decision for clear error, this court
looks to the IJ’s decision “as a guide to what lay behind the BIA’s conclusion.”
Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008) (internal quotation marks
omitted). Here, although the BIA explicitly discussed only three of the IJ’s bases
for the adverse credibility determination, it concluded that these inconsistencies
“and other discrepancies support the Immigration Judge’s adverse credibility
finding.” (Emphasis added.) We accordingly review the BIA’s decision as well as
the portion of the IJ’s decision identifying “other discrepancies.” See Morgan v.
Mukasey, 529 F.3d 1202, 1206 (9th Cir. 2008).
We review adverse credibility findings under the substantial evidence
standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir. 2009). Under this
standard, we may reverse the BIA’s decision only if the petitioner presents
evidence that is “so compelling that no reasonable factfinder could find that he was
not credible.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (internal
quotation marks omitted). Before making an adverse credibility determination in a
pre-REAL ID Act case such as this one, the IJ must give the petitioner “a
reasonable opportunity to offer an explanation of any perceived inconsistencies.”
2
Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999), superseded by statute1
as stated in Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2nd Cir. 2008) (per
curiam).
Here, Singh was denied a reasonable opportunity to explain almost all of the
inconsistencies that the BIA and the IJ identified in support of the adverse
credibility determination. These inconsistencies therefore cannot support the
adverse credibility determination. See id. Although Singh was given an
opportunity to explain an inconsistency regarding the year he lost his job — 1999
or 2000 — that inconsistency alone cannot support the adverse credibility
determination because it does not go to the heart of Singh’s claim, and because the
IJ gave no reason to discredit Singh’s explanation. See Soto-Olarte, 555 F.3d at
1091 (failure to consider a proffered explanation); Morgan, 529 F.3d at 1206-07
(inconsistency not going to heart of claim). Further, the lack of corroborative
affidavits from Singh’s family in India does not support the adverse credibility
finding because an otherwise credible applicant need not provide corroborative
evidence, see Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996), and,
regardless, it is “inappropriate to base an adverse credibility determination on an
applicant’s inability to obtain corroborating affidavits from relatives or
1
The changes made by the statute do not apply here.
3
acquaintances living outside of the United States,” Arulampalam v. Ashcroft, 353
F.3d 679, 688 (9th Cir. 2003) (internal quotation marks omitted). Thus, none of
the agency’s proffered reasons constitute substantial evidence supporting the
adverse credibility determination.
Moreover, even if this adverse credibility determination were supported by
substantial evidence, the BIA erred in failing to conduct a distinct analysis for
relief under CAT. See Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001)
(holding that an adverse credibility determination in the asylum context should not
“wash over” a claim for CAT relief). The failure to consider Singh’s country
report and the over-reliance on the adverse credibility determination made in the
asylum context were erroneous.
Disregarding the inconsistencies that Singh was not given an opportunity to
explain, the evidence is insufficient to support the BIA’s adverse credibility
determination. We therefore grant the petition. On remand, should the agency
desire to rely on any inconsistencies that go to the heart of his claim, Singh must be
advised of the purported inconsistencies and afforded the opportunity to explain
them.
Petition for review GRANTED and REMANDED.
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