Sukhbir Singh v. Holder

FILED
NOT FOR PUBLICATION OCT 28 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SUKHBIR SINGH, No. 07-70346

Petitioner, Agency No. A097-613-351

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted May 11, 2010 **
San Francisco, California

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

Sukhbir Singh petitions for review of the Board of Immigration Appeals’

(“BIA”) final order of removal. The Immigration Judge (“IJ”) denied Singh’s

applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”) based on an adverse credibility finding. The

*
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).
BIA adopted and affirmed the IJ’s decision pursuant to Matter of Burbano, 20 I&N

Dec. 872, 874 (BIA 1994). When the BIA summarily affirms the IJ’s decision, we

review the IJ’s decision as the final decision of the BIA. Tamang v. Holder, 598

F.3d 1083, 1088 (9th Cir. 2010). We review an adverse credibility finding for

substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). Because

Singh applied for asylum in 2004, we apply pre-REAL ID Act standards. See

Joseph v. Holder, 600 F.3d 1235, 1240 n.3 (9th Cir. 2010) (noting that, when

reviewing an adverse credibility finding, “[w]e apply pre-REAL ID Act standards

[when the alien] filed his application for relief . . . before May 11, 2005, the

effective date of the REAL ID Act”).

We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We grant Singh’s

petition for review and remand his case to the BIA for further proceedings.

The facts of this case are known to the parties. We repeat them only as

necessary for our analysis.

The BIA’s adverse credibility finding is not supported by substantial

evidence.

2
The IJ noted two instances in which she found Singh to be unresponsive to

questioning. First, the IJ indicates that Singh “had no explanation” for why he

claimed to have paid 11 rupees for party membership when a receipt showed that

party membership cost only 2 rupees. In fact, Singh explained that although a

membership cost only 2 rupees, he chose to pay 11 rupees as a political

contribution. The IJ asked no follow-up questions and did not provide Singh with

an opportunity to clear up any remaining ambiguity, so this “unresponsiveness”

cannot support an adverse credibility determination. See Chen v. Ashcroft, 362

F.3d 611, 618 (9th Cir. 2004) (holding that a petitioner cannot be denied a

reasonable opportunity to explain a perceived inconsistency).

Second, the IJ noted that Singh “gave no response as to why he did not join

[the Akali Dal Mann party] sooner” than he did. Yet the transcript reveals that

Singh, in fact, answered this question by stating that he worked on his family’s

farm and joined the party when he had time and was able to attend rallies with his

father. The IJ provides no reason for disbelieving Singh’s testimony, and the

record does not support the conclusion that Singh was unresponsive. See Singh v.

Ashcroft, 301 F.3d 1109, 1114 (9th Cir. 2002) (holding that the BIA “must identify

particular instances in the record where the petitioner refused to answer questions

asked of him”).

3
B

The IJ indicates four instances where Singh’s testimony lacked detail. First,

the IJ notes that Singh’s “inability to provide any information or detail about his

father’s arrests after having alleged that his father had been arrested many times

undermines his credibility.” Yet Singh was never given an opportunity to provide

more detail about his father’s arrests—he was only ever asked to testify about these

arrests from memory. See Chen, 362 F.3d at 618. Moreover, Singh testified only

that he heard from his mother that his father had been arrested several times in the

past and that he was never present at any of these arrests. Given Singh’s further

testimony that his father was only ever held in custody for very short periods of

time, Singh’s lack of knowledge or memory regarding the specifics of these arrests

does not support an adverse credibility finding.

Second, the IJ also indicated that Singh could not testify about how long his

father had been a member of the Akali Dal Mann party. Singh testified that he

thought that his father joined after Singh was born when Singh was still “quite

small,” but that he could not remember any specifics. Again, Singh was not given

an opportunity to provide more detail. See Chen, 362 F.3d at 618. Also, the length

of his father’s membership in the party has no bearing on Singh’s asylum claim,

and it does not support an adverse credibility finding. See Don v. Gonzales, 476

4
F.3d 738, 742 (9th Cir. 2007) (holding that lack of detail regarding minor issues

cannot support an adverse credibility determination).

Third, the IJ noted that even though Singh distributed political posters, he

could not recall the name of the person at whose house he twice picked up the

posters. Yet Singh testified that it was common knowledge in his village where to

go to pick up posters and that he simply went to that location, picked up posters,

and distributed them. It is unclear in the record if Singh ever even met this person,

and, even if he did, Singh had very limited exposure to this person—he went to his

house twice for the sole purpose of picking up political posters. Singh was not

given an opportunity to provide more information about this person. See Chen,

362 F.3d at 618. Again, this is no more than a minor detail that cannot support an

adverse credibility finding. See Don, 476 F.3d at 742.

Fourth, the IJ notes that Singh “never could articulate in any type of

specificity what the injuries were that he sustained” during his February 2003

arrest. Yet Singh testified that police beat him with a stick all over his body, tied

him down to a pole and beat him, tied him to an ice block and beat him, left him

tied to that ice block for four to five hours, and tied him down and pulled his legs

apart. Singh testified that he still had markings on his legs from this beating, and

the IJ noted that Singh exposed his scars at his hearing. Singh also testified that

5
the ice block left him with frostbite all over his body. Singh was not asked to be

more specific after he gave this testimony, and the IJ did not explain what details

were missing, so this “lack of detail” cannot support an adverse credibility finding.

See Chen, 362 F.3d at 618.

The IJ indicated three instances where Singh’s testimony was inconsistent.

First, the IJ relied heavily on inconsistency between Singh’s testimony and country

conditions documents from the Department of State. Yet our review reveals that

these documents are, in fact, consistent with Singh’s testimony. Singh was

arrested several times and accused of being a militant, supporting militants and

supporting separatism. The country conditions documents note that because “it

would be hard for a suspect to prove that he does not belong to a secret group, an

individual could plausibly be accused, perhaps unjustly, of being a terrorist if

police think that he is in one of these groups.” The documents further note that

“[t]here is still widespread harassment of anyone who expresses separatist

sympathies,” that “individual Sikhs are ‘probably targeted’ at times by local

police,” and that “reports of [detention and physical abuse] seem[] plausible given

conditions in Punjab.” In addition, the Department of State explicitly mentioned

that there were “credible reports that police throughout the country often did not

6
file legally required arrest reports, resulting in hundreds of unsolved

disappearances in which relatives claimed that an individual was taken into police

custody and never heard from again.”

Second, the IJ indicates that Singh’s testimony at his hearing and asylum

interview was inconsistent with his written asylum application. In his written

asylum application and in his testimony before the IJ, Singh indicated that the

police used a wooden roller on his legs. In his asylum interview, Singh explained

how the police beat him with wooden sticks, but he did not mention the wooden

roller until asked about it. When asked why he had forgotten to mention the roller

to the asylum officer at his interview, Singh explained that he had never been

interviewed in that way before and forgot to mention it because he was frightened.

The IJ gives no reason for rejecting Singh’s explanation, and so it cannot support

its adverse credibility determination. See Singh, 301 F.3d at 1114.

Third, the IJ notes an inconsistency between Singh’s claimed appearance in

May 1999 and his driver’s license photograph from March 2001. The IJ provides

no reason for disbelieving Singh’s testimony that he cut his hair after his 1999

arrest, again preventing support for an adverse credibility determination. See

Singh, 301 F.3d at 1114.

7
Singh also provides three pieces of corroborative evidence to support his

asylum claim. The IJ gave no reason for discounting a letter from the Akali Dal

party or an affidavit from Singh’s father. The IJ rejected a letter from Singh’s

mother, however, finding it was internally inconsistent. When describing an

instance where the police came to her house looking for Singh, Singh’s mother

wrote: “I doubt that they want to arrest you again. My son your life is in danger

here, don’t come to India. This is my earnest request.” While the IJ found these

sentences to be inconsistent, the meaning is abundantly clear—the police are not

interested in arresting Singh, they are interested in killing him. The affidavit from

Singh’s father corroborates this meaning. The IJ’s interpretation and subsequent

rejection of this letter is unreasonable.

Singh has established his eligibility for asylum by demonstrating a

subjective fear of persecution and an objectively reasonable fear of future

persecution. Singh demonstrated his subjective fear of persecution with credible

testimony and corroborative evidence. As demonstrated above, no element of the

IJ’s adverse credibility determination is supported by substantial evidence. The

record before us therefore compels the conclusion that Singh was persecuted on

8
account of his political opinion and has an objectively reasonable fear of future

persecution. See Li v. Holder, 559 F.3d 1096, 1113 (9th Cir. 2009).

Even though Singh has established his eligibility for asylum, the government

may offer evidence on remand to defeat his asylum claim, including, for example,

evidence that circumstances within India have changed since Singh left. See id.

We therefore remand this case to the BIA for further proceedings to allow the BIA

to continue its asylum, withholding of removal, and CAT analysis and to allow the

government the opportunity to rebut Singh’s claims. See id.

PETITION GRANTED; REMANDED for further proceedings.