FILED
NOT FOR PUBLICATION JAN 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ASHOK KUMAR, No. 06-75705
Petitioner, Agency No. A095-453-336
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 December 10, 2010
San Francisco, California
Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.
Ashok Kumar (“Kumar” or “petitioner”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) denial of his applications for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). The BIA
affirmed the Immigration Judge’s (“IJ”) denial of asylum and withholding of
removal on the basis of an adverse credibility determination and also affirmed the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
IJ’s denial of CAT relief. This Court has jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1). We grant Kumar’s petition as to asylum and withholding of removal
and deny the petition as to relief under CAT.
This Court reviews adverse credibility determinations for substantial
evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (citations omitted).
Under this standard, the BIA’s determinations are to be upheld if they are
supported by “reasonable, substantial and probative evidence” in the record.
Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006) (citations omitted).
Where “the BIA affirm[s] without opinion, this court directly reviews the
immigration judge’s decision as though it were the decision of the BIA.” Chete
Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir. 2004) (citations omitted).
In this case, the IJ based her adverse credibility determination on the
following three grounds: (1) the written affidavits submitted by Kumar
“consistently fail to mention that respondent was harmed by police,” (2) Kumar
“does not speak like a political activist,” and (3) Kumar “sought to mislead the
court” about his reasons for traveling to Canada, based upon a discrepancy
between what he told immigration officials and his testimony in front of the IJ.
None of these grounds constitutes substantial evidence.
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The IJ’s first finding can be disposed of quickly, because the IJ was simply
incorrect about the contents of the affidavits. While the affidavits of Raju Jagdish
and Bitu Tersem do not mention the police, the affidavit of Ajit Singh Manhas very
clearly does. Mr. Singh Manhas’ affidavit expressly states that petitioner was
“arrested and tortured by the police.” It also says that the reason Kumar “left the
country is that he was threaten[ed] by the police and the militants. His life was not
sa[f]e in India.” The IJ’s finding was based, at least in part, on the “collective
omission of this central fact.” When, as here, a petitioner’s testimony is
corroborated by one affidavit, that same testimony cannot be said to be called into
question by two other affidavits that do not even address the relevant claim, let
alone contradict it. This is particularly true when there is ample evidence in the
record of police misconduct in Jammu and Kashmir during this period, and the IJ
readily acknowledged that the “background documents raise the possibility of
future harm to respondent.” In short, the IJ’s mistaken reading of the affidavits
does not constitute substantial evidence in support of her adverse credibility
determination.
Even absent the IJ’s mistake, her finding regarding the affidavits was based
upon impermissible speculation. From the supposed lack of mention of police
abuse, the IJ jumped to the conclusion that Kumar was “adding a fear of Police to
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his claim” in order to “overcome a finding that he could reasonably relocate to
another part of India.” With no other evidence in the record to indicate that Kumar
was lying about his encounters with the police, the IJ appeared prepared to
discount all of his testimony. The Ninth Circuit previously rejected this sort of
conclusory reasoning in a case where the BIA found that letters submitted by the
petitioner “appear to have been manufactured specifically to support an asylum
claim.” Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000). As this Court refused
to do in Shah, we will not “uphold an adverse credibility finding that rests on
conjecture and speculation.” Id. (citations omitted).
Similarly, the IJ’s finding regarding Kumar’s ability to “speak like a
political activist” relies on little more than the IJ’s subjective belief as to what a
political activist from Jammu should sound like. Id. The IJ stated that “[p]ublic
speaking is not the exclusive domain of highly educated people, and history is full
of uneducated but articulate activists and advocates for a cause. Respondent’s
testimony did not convince the court that he is such a person or that he is even
experienced in discussing human rights problems at the simplest level.” In the IJ’s
view, this “inability was more consistent with lack of experience than with lack of
education.” All of this could be true, and Kumar’s claims would be no less
credible or meritorious. Kumar’s supporting role as a member of the Jammu and
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Kashmir Human Rights Council did not require even basic knowledge of human
rights doctrine, much less the ability to communicate that knowledge convincingly
in a public forum, whether a human rights meeting or an immigration court.
Under Ninth Circuit precedent, the IJ’s mischaracterization of Kumar’s
testimony cannot bear on his credibility, or lack thereof, and it certainly cannot be
said to constitute substantial evidence. See Lopez-Reyes v. INS, 79 F.3d 908, 912
(9th Cir. 1996) (reversing adverse credibility determination because IJ’s
“astonishment” at petitioner’s claim was not a cogent reason for dismissing
petitioner’s credibility); Kumar, 444 F.3d at 1052 (finding that IJ’s adverse
credibility finding based upon what brothers from India who had grown up and
fled the country together might or might not do was purely conjecture).
Finally, the IJ pointed to the fact that “[d]espite telling U.S. officials in
September 2002 that he was in Canada to see the Pope, [Kumar] testified before
the court that he was unaware whether the Pope had even been in Canada.” From
there, the IJ speculated that Kumar “apparently sought to mislead the court about
his entry to Canada as part of World Youth Day.” At issue was Kumar’s “true
reason for leaving India in July of 2002.”
Of the IJ’s three findings, this is the weakest. For one, it flies in the face of
clearly established Ninth Circuit precedent. The “fact that an asylum seeker has
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lied to immigration officers or used false passports to enter this or another country,
without more, is not a proper basis for finding her not credible.” Kaur v. Ashcroft,
379 F.3d 876, 889 (9th Cir. 2004) (citations omitted), superseded by statute on
other grounds as recognized by Singh v. Holder, 602 F.3d 982, 986 (9th Cir.
2010); see also Akinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999) (citations
omitted) (distinguishing between “false statements made to establish the critical
elements of the asylum claim from false statements made to evade INS officials”).
Here, the IJ uncritically took Kumar’s statements to immigration officials as true,
despite the fact that Kumar admitted he may have lied to them in order to avoid
detention, and then concluded that he must have “sought to mislead the court” with
his testimony. As with the IJ’s other findings, this is a bridge too far. Absent the
IJ’s creative speculation, Kumar’s knowledge regarding the whereabouts of the
Pope during the summer of 2002 do not go to the “heart of [Kumar’s] claim of
persecution.” Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003).
Because the IJ’s three findings in support of her adverse credibility
determination were based on a misreading of the administrative record, conjecture,
and speculation, rather than substantial evidence, we reverse that determination and
remand to the agency to consider whether Kumar, now considered credible, has
established eligibility for asylum.
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Because the IJ found that Kumar did not qualify for asylum, she also
concluded that he did not meet the higher standard required for withholding of
removal. On remand, the BIA shall also determine, in the first instance, whether
Kumar has established eligibility for withholding of removal. See Karouni v.
Gonzales, 399 F.3d 1163, 1178 (9th Cir. 2005) (citations omitted).
To be eligible for relief under CAT, an applicant bears the burden of proving
that it is “more likely than not” that he would be tortured upon return to the
proposed country of removal. 8 C.F.R. § 208.16(c)(2). In this case, the IJ
acknowledged that there was some “credible evidence in the record about torture
by the Indian government,” but nevertheless concluded that the “record does not
support the conclusion that it is more likely than not that [Kumar] will be tortured
if returned to India.” Because we cannot say that the evidence compels the
opposite conclusion, we affirm the BIA’s decision as to Kumar’s CAT claim.
Petition for review GRANTED in part, DENIED in part, and REMANDED
to the BIA for further proceedings.
Each party shall bear its own costs on appeal.
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