FILED
NOT FOR PUBLICATION JAN 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BALDEV SINGH, No. 09-73519
Petitioner, Agency No. A072-114-015
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 4, 2010 **
Seattle, Washington
Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.***
Petitioner Baldev Singh seeks review of an order of the Board of
Immigration Appeals (Board), issued on October 7, 2009, in which the Board
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Claudia A. Wilken, District Judge for the U.S. District
Court for Northern California, Oakland, sitting by designation.
rejected his appeal from the Immigration Judge’s (IJ) decision denying his
applications for asylum, witholding of removal, and protection under the
Convention Against Torture (CAT). Singh sought asylum due to alleged
persecution on account of his Sikh faith and his political opinion. We have
jurisdiction under 8 U.S.C. § 1252(a)(1). We grant the petition and remand.
The Board’s determination that an alien is not eligible for asylum must be
upheld if supported by reasonable, substantial, and probative evidence in the
record; reversal should occur only where the evidence is such that a reasonable fact
finder would have to conclude that the requisite fear of persecution existed. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992); Yazitchian v. INS, 207 F.3d 1164, 1168
(9th Cir. 2000). Administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary. 8 U.S.C. §
1252(b)(4)(B). Credibility determinations are also reviewed for substantial
evidence and, thus, must be upheld unless the evidence presented would compel a
reasonable fact finder to reach a contrary result. de Leon-Barrios v. INS, 116 F.3d
391, 393 (9th Cir. 1997). An adverse credibility determination must be supported
by “specific, cogent reason[s].” Akinmade v. INS, 196 F.3d 951, 954 (9th Cir.
1999) (alteration in original). We independently evaluate the IJ’s reasons for his
adverse credibility findings. Chen v. Ashcroft, 362 F.3d 611, 617 (9th Cir. 2004).
2
The IJ denied Singh asylum, witholding of removal, and relief under the
CAT after making an adverse credibility finding. The Board affirmed the IJ’s
adverse credibility finding on three of the grounds addressed by the IJ, and stated
that it did not reach the remaining grounds for the IJ’s determination. The Board
affirmed the denial of asylum, witholding of removal, and relief under the CAT.
“Where the BIA reviews the IJ’s decision de novo, our review is limited to the
BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.”
Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000); see also Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).
We find insufficient indicia in the record to support the Board’s adverse
credibility determination. First, the statements from Singh’s father and father-in-
law do not create the material discrepancy the IJ found, because they do not
contradict Singh’s testimony. The father-in-law’s statement corroborates Singh’s
arrest in 1990 while the father’s statement corroborates Singh’s arrest in 1992.
The omission of one arrest in either of the statements reduces the amount of
corroboration offered by each of the statements, but does not produce inconsistent
evidence. See Singh v. Ashcroft, 301 F.3d 1109, 1112 (9th Cir. 2002) (recognizing
that “inconsistent” means “contradictory”).
3
Secondly, contrary to the IJ’s finding, Singh was generally consistent in his
testimony that he was arrested for a second time in April 1992, and left India in
December 1992. This testimony was supported by his 1993 asylum application,
and the statements from his family members. At one point in the hearing, Singh
apparently misspoke and said that he left India in 1990. The IJ’s attempt to seek
clarification from Singh was interrupted by an exchange with the interpreter and
Singh’s counsel. The IJ then did not pursue an explanation. Subsequently, Singh
reiterated that he was arrested in April 1992, and left India in December of that
year. Where an asylum applicant is “denied a reasonable opportunity to explain
what the IJ perceived as an inconsistency in her testimony . . . . [t]he IJ’s doubt
about the veracity of her story . . . cannot serve as a basis for the denial of asylum.”
Chen, 362 F.3d at 618.
Finally, the Board relied on the IJ’s finding that Singh’s demeanor was non-
responsive. The IJ faulted Singh for repeatedly stating that he was having trouble
remembering particular facts. For example, the IJ faulted Singh for struggling to
answer questions about the date of his return to India after a previous visit to the
United States in 1981. It is important to note, however, that Singh was called upon
to testify in 2008 about events that occurred eighteen years and, sometimes, nearly
thirty years earlier.
4
In addition, the IJ found Singh’s demeanor particularly evasive when he was
asked whether anyone in India was still searching for him. Because our review of
the transcript reveals that Singh was responsive to the IJ’s questions, the IJ’s
contrary finding does not support an adverse credibility determination.
Our independent evaluation of the record reveals that none of the Board’s
reasons for affirming the IJ’s adverse credibility finding was supported by
substantial evidence.
We remand this case to the Board with instructions to consider Singh’s
petition for asylum, witholding of removal, and relief under the CAT in light of our
ruling that his testimony is credible. INS v. Ventura, 537 U.S. 12, 14-18 (2002)
(per curiam) (remand appropriate where asylum issue not fully considered by the
BIA); Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir. 2006) (reversing adverse
credibility finding and remanding for determination of asylum eligibility); Singh v.
Ashcroft, 362 F.3d 1164, 1172 (9th Cir. 2004) (same); He v. Ashcroft, 382 F.3d
593, 603-04 (9th Cir. 2003).
PETITION GRANTED and REMANDED.
5