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NOT FOR PUBLICATION AUG 11 2010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
HARI KRISHNA PANDITHAR; et al., No. 07-71730
Petitioners, Agency Nos. A098-146-177
A098-146-178
v. A098-146-179
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 21, 2010 **
San Francisco, California
Before: HUG, BEEZER and HALL, Circuit Judges.
Hari Krishna Pandithar (“Pandithar”), his wife Rashid Latha and their minor
son Hamish Ryan Krishna, natives and citizens of Fiji, petition for review of the
Board of Immigration Appeals’ (“BIA”) dismissal of their appeal of an
Immigration Judge’s (“IJ”) decision ordering them removed from the United
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
States. Pandithar had previously applied for asylum, withholding of removal and
relief under the Convention Against Torture. The BIA affirmed the IJ’s decision,
concluding that Pandithar was not credible.
We have jurisdiction over this matter pursuant to 8 U.S.C. § 1252(a)(1), and
we grant Pandithar’s petition for review.
The facts of this case are known to the parties. We do not repeat them.
I
“When the BIA affirms and adopts an IJ’s decision, [we review] the decision
of the IJ.” Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009).
We will uphold the BIA’s decision if it is “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Abebe v.
Gonzales, 432 F.3d 1037, 1039–40 (9th Cir. 2005) (en banc) (internal quotation
marks omitted). Substantial evidence exists “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B)
II
Although the IJ and BIA based the adverse credibility finding on four
considerations, none of these grounds provides substantial evidence for the finding.
The purported inconsistency between Pandithar’s asylum interview and his
hearing testimony does not provide substantial evidence for an adverse credibility
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finding.1 A transcript of the asylum interview was not provided—nor is one
included in the administrative record for our review—and the asylum officer who
conducted Pandithar’s interview did not testify during Pandithar’s hearing. See
Singh v. Gonzales, 403 F.3d 1081, 1089–90 (9th Cir. 2005).
Pandithar’s statements in his declaration and his testimony before the IJ was
consistent as to the injuries that his wife suffered after a particular attack.
Although Pandithar’s declaration is “not as complete as might be desired [it]
cannot, without more, properly serve as a basis for a finding of lack of credibility.”
Akinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999) (internal citations and
quotations omitted).
Pandithar’s testimony regarding the response by the Fiji police to his
persecution complaints was also consistent. During his testimony, Pandithar stated
that the Fiji police “did not take any interest” in the numerous incidents with native
Fijians that Pandithar reported to them and that the police did not “assist” him.
These statements do not contradict Pandithar’s assertion that the police “did write
something on a piece of paper” and that he obtained a police report from them
1
Contrary to the government’s assertions, Pandithar properly exhausted this
issue by specifically appealing the IJ’s decision to compare his testimony during
the hearing with his asylum interview. See Zhang v. Ashcroft, 388 F.3d 713, 721
(9th Cir. 2004) (per curiam).
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concerning one of the incidents. Pandithar may reasonably have thought that
merely writing something down and filing a routine police report did not mean that
the police took an interest in his plight and assisted him in obtaining justice.
Pandithar’s inability to obtain affidavits from his mother and brother does
not provide substantial evidence for the adverse credibility determination because
nothing in the record suggests that Pandithar could even contact these relatives,
much less “reasonably” obtain affidavits from them. Cf. Shrestha v. Holder, 590
F.3d 1034, 1047–48 (9th Cir. 2010) (holding that corroborating evidence was
reasonably obtainable because an alien was in “regular contact” with his parents).
Even in the aggregate, these four findings do not provide substantial
evidence for the IJ’s and the BIA’s adverse credibility finding. We remand to the
BIA for further proceedings. We do not consider the denial of the motion to
remand to the IJ because that is dependent on the BIA’s ultimate ruling. In this
context, the BIA may wish to remand to the IJ concerning changing country
conditions.
Petition GRANTED; REMANDED to the BIA for further proceedings.
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