FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIRMAL SINGH; KULWANT KAUR;
SANJOT SINGH, No. 06-74547
Petitioners,
Agency Nos.
v. A072-172-796
ERIC H. HOLDER JR., Attorney A077-431-973
General, A077-431-974
Respondent.
KULWANT KAUR; SANJOT SINGH, No. 07-71289
Petitioners,
Agency Nos.
v.
A077-431-973
ERIC H. HOLDER JR., Attorney A077-431-974
General,
OPINION
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted January 12, 2011*
San Francisco, California
Filed March 25, 2011
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
4025
4026 SINGH v. HOLDER
Before: Alex Kozinski, Chief Judge, John T. Noonan and
Barry G. Silverman, Circuit Judges.
Opinion by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge Noonan
4028 SINGH v. HOLDER
COUNSEL
Sabey Abraham, Hardeep S. Rai and Rebecca Rudzianis, Rai
& Associates, P.C., San Francisco, California, for the petition-
ers.
Peter D. Keisler, Assistant Attorney General, Civil Division;
Gregory G. Katsas, Acting Assistant Attorney General, Civil
Division; Michelle G. Latour, Assistant Director, Lisa M.
Arnold, Senior Litigation Counsel, Luis E. Perez, Tracie N.
Jones and Schwanda Rountree, Of Counsel, Office of Immi-
gration Litigation, Civil Division, U.S. Department of Justice,
Washington, D.C., for the respondent.
OPINION
KOZINSKI, Chief Judge:
We consider whether lying to the immigration authorities
is a sufficient basis for an adverse credibility finding, and
when a lie uttered by one spouse may fairly be attributed to
the other.
Facts
Nirmal Singh filed an asylum application soon after he
came to the United States in 1994. He claimed that he had
been persecuted in India because of his support for the Akali
Dal Mann Party. Singh testified that he was arrested and
severely beaten three times for his political activities, and that
SINGH v. HOLDER 4029
he believed the police murdered his brother for participating
in a political protest. The asylum officer disbelieved Singh
and referred his application to an immigration judge for adju-
dication in removal proceedings.
A few months later, Singh’s wife Kulwant Kaur flew to the
United States with their son. Singh picked them up at the air-
port and brought them to his home in San Jose. After they set-
tled in, Kaur also applied for asylum. Someone apparently
advised her that she couldn’t be granted asylum if she said she
was living with her husband, so she lied on her application
form. She claimed that Singh was not in the United States and
that she had no information as to his whereabouts. She also
falsely indicated that Singh had never applied for asylum.
Kaur’s interview went better than Singh’s. She told the asy-
lum officer that she had been arrested and raped because of
her political activities in India. She again lied under oath
about not knowing the whereabouts of her husband, and sub-
mitted an affidavit from Singh’s father also claiming that he
didn’t know where his son was. And, of course, Kaur didn’t
mention that Singh had been denied asylum. The asylum offi-
cer believed Kaur and granted her application.
This gave Singh a second bite at the apple. He told the
immigration judge in his own case that he planned to with-
draw his asylum application. Rather than fighting the asylum
officer’s decision, Singh would join his wife’s successful
application. With Singh present in the courtroom, his lawyer
falsely assured the IJ that the couple had only recently found
each other here. Their cases were later consolidated.
But the government was suspicious, and the asylum officer
re-interviewed Kaur with her husband present. Comparing
Kaur’s story to Singh’s, the officer noted that Kaur hadn’t
previously mentioned that the police in India had murdered
her brother-in-law (Singh’s brother). Nor did the affidavit
Kaur submitted from her father-in-law mention that his own
4030 SINGH v. HOLDER
son had been killed. This omission was remarkable because
Singh had relied on the alleged killing to prove political per-
secution against his family. Kaur also gave conflicting dates
for when Singh supposedly joined the Akali Dal Mann Party,
and different details than her husband about whom he con-
tacted before leaving India. And she continued to lie about
when she had found Singh in the United States. Singh was
present and spoke to the asylum officer, but said nothing to
contradict his wife. The government terminated Kaur’s asy-
lum status, effective the day after the interview.
When petitioners both went before the immigration judge,
Kaur finally admitted that she had lied on her application and
twice lied to the asylum officer. The government pressed
Singh on his lawyer’s false representation that the couple had
only recently discovered one another in the United States.
Singh claimed he gave the lawyer accurate information about
their situation, but the lawyer lied to the court anyway. And
Kaur claimed the lawyer advised her to lie to the asylum offi-
cer. The IJ gave the couple an opportunity to call the lawyer,
but they declined. They have never argued that they received
ineffective assistance of counsel.
The IJ made an express adverse credibility finding against
both Kaur and Singh, and on that basis denied their claims for
relief. See Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th
Cir. 2003). Kaur later received an I-140 visa and requested
that the Board of Immigration Appeals reopen her case to
consider her application for adjustment of status. The BIA
denied the motion.
Analysis
Immigration judges are in the best position to evaluate the
credibility of an alien applying for relief. Mendoza Manimbao
v. Ashcroft, 329 F.3d 655, 661 (9th Cir. 2003). We review
adverse credibility findings for substantial evidence, and must
uphold them unless the evidence compels a contrary result.
SINGH v. HOLDER 4031
Balam-Chuc v. Mukasey, 547 F.3d 1044, 1048 (9th Cir.
2008).
I. Kaur (the wife)
[1] Kaur admits that she lied repeatedly to avoid being
denied relief, and to prevent her husband from being sent
back to India. We’ve seen this kind of behavior before, and
not with favor. In Kaur v. Gonzales, 418 F.3d 1061 (9th Cir.
2005), the asylum applicant “admitted in her testimony that
she lied about her marital status in order to ensure the possi-
bility that her husband could file an asylum application in the
event hers was denied.” Id. at 1066. We held that intentional
deception toward the immigration authorities is “culpable
conduct” and one of several “indications of dishonesty” that
“cast[s] doubt on [the applicant]’s entire story.” Id. at
1066-67.
[2] Kaur argued to the BIA that the IJ erred by making an
adverse credibility finding based on nothing more than “trivial
errors” and “minor inconsistencies” that revealed nothing
about whether she reasonably feared returning to India. See
Osorio v. INS, 99 F.3d 928, 931 (9th Cir. 1996). It’s true that
an adverse credibility finding must be based on more than an
innocent mistake, but “[t]he concern underlying each of our
decisions in this arena has been to avoid premising an adverse
credibility finding on an applicant’s failure to remember non-
material, trivial details . . . .” Kaur, 418 F.3d at 1064 (empha-
sis added); see also Marcos v. Gonzales, 410 F.3d 1112, 1117
(9th Cir. 2005) (explaining when “discrepancies” and “incon-
sistencies” count against applicant). An applicant will natu-
rally be more likely to remember and relate the facts that are
important to his claim. The IJ therefore shouldn’t infer from
an applicant’s careless error about peripheral details that he’s
lying about the facts that do matter.
[3] But the rule is quite different when it comes to deliber-
ate deception. See Liu v. Holder, No. 08-72849, 2011 WL
4032 SINGH v. HOLDER
635276, at *6 (9th Cir. Feb. 23, 2011) (distinguishing deliber-
ate fabrications from omissions, inconsistencies and discrep-
ancies). An asylum applicant who lies to immigration
authorities casts doubt on his credibility and the rest of his
story. There are strictly limited instances when we overlook
an alien’s decision to mislead immigration officials: In Akin-
made v. INS, 196 F.3d 951 (9th Cir. 1999), we recognized that
“a genuine refugee escaping persecution may lie about his cit-
izenship to immigration officials in order to flee his place of
persecution or secure entry into the United States.” Id. at 955;
see also Marcos, 410 F.3d at 1117-18 & n.4. That kind of lie
can’t count against him. But the deception here was com-
pletely unrelated to escaping immediate danger or gaining
entry into the United States. Kaur admits that she made a con-
scious decision to lie to the asylum office about a fact she
believed was crucial to her claim for permanent relief. It
doesn’t matter that the fact turned out to be irrelevant. What
matters is that the petitioner chose to lie to immigration
authorities. That always counts as substantial evidence sup-
porting an adverse credibility finding, unless the lie falls
within the narrow Akinmade exception.
[4] For similar reasons, the BIA did not abuse its discretion
in denying Kaur’s motion to reopen for adjustment of status.
See INS v. Abudu, 485 U.S. 94, 105 (1988). It reasonably con-
cluded that Kaur’s “history of misrepresentations . . . is a seri-
ous adverse factor that is not outweighed by her positive
equities.”
II. Singh (the husband)
Singh tried to piggyback on his wife’s deception. His law-
yer told the same fairy tale about how husband and wife had
lost track of each other and then met by accident in the United
States. Singh claims he didn’t know what his lawyer was say-
ing, but he was present and is fluent in English. The IJ didn’t
have to believe Singh. See Rivera v. Mukasey, 508 F.3d 1271,
1275 (9th Cir. 2007). Instead, she could reasonably infer that
SINGH v. HOLDER 4033
Singh heard and understood what his lawyer said, and
remained silent because he had given the lawyer the false
information or was content to have the lawyer lie on his
behalf.
[5] Singh again said nothing when his wife lied during her
second interview with the asylum officer. Nor did he contra-
dict her false testimony when the asylum officer questioned
him. Singh blamed antidepressant medication, but the IJ
didn’t have to buy this excuse either. Singh and Kaur are hus-
band and wife, living under the same roof; they had a com-
mon interest in the success of Kaur’s asylum application: If
Kaur could retain her favorable asylum ruling, they would
both be able to remain in the United States. See 8 U.S.C.
§ 1158(b)(3); 8 C.F.R. § 1208.21. The IJ could reasonably
infer that the spouses had discussed the asylum re-interview
ahead of time, and had jointly decided to stick with Kaur’s
false story rather than come clean. Singh claims he can’t be
held responsible for Kaur’s lies because the asylum officer
didn’t ask him whether he agreed with his wife’s account, but
“[t]he maxim of the law is ‘Silence gives consent.’ ” Robert
Bolt, A Man for All Seasons 152 (Vintage Books 1990) (stage
direction omitted); cf. United States v. Schaff, 948 F.2d 501,
505 (9th Cir. 1991) (discussing adoptive admissions). It
doesn’t matter which spouse told the lie and which one tacitly
assented. The IJ reasonably concluded that Kaur and Singh
were executing a common plan to deceive the asylum officer,
and reasonably disbelieved both of them.
***
[6] By necessity, much of the immigration system depends
on aliens telling the truth when they seek relief. When appli-
cants deliberately lie, as Singh and Kaur did here, that trust
is broken and it’s entirely reasonable for the immigration
authorities to disbelieve their stories and deny their claims.
The REAL ID Act has given immigration judges even broader
discretion in making their credibility determinations, but
4034 SINGH v. HOLDER
they’ve always been permitted to use their common sense. See
Kaur, 418 F.3d at 1066. Discovering that Kaur and Singh
knowingly deceived our government for years was a perfectly
good reason not to believe their testimony, and we cannot
conclude that the evidence compels a contrary finding.
PETITIONS FOR REVIEW DENIED.
NOONAN, Circuit Judge, concurring in part and dissenting in
part:
I concur in the majority’s denial of Kulwant Kaur’s peti-
tion. Kaur admitted to the Immigration Judge that she lied. It
is often impossible for asylum seekers to obtain documentary
evidence. The integrity of our asylum system depends on asy-
lum seekers’ truthfulness. It is not an abuse of discretion for
the Board of Immigration Appeals to refuse to reopen Kaur’s
case.
I do not join in the majority’s denial of Nirmal Singh’s
petition — a denial of asylum to a husband because he did not
stand up and expose the lies of his wife. The unity of husband
and wife in today’s America is not so close that a wife speaks
for a husband, nor that a husband adopts his wife’s words.
The record depicts Singh as a frightened and depressed
man who unwittingly put his life in the hands of an unscrupu-
lous attorney. The Indian police thrice arrested and tortured
Singh. They killed Singh’s brother in a “false encounter” after
the two brothers were arrested together during a protest. In his
third arrest, the police beat him unconscious. Singh fled India.
Singh hired Randhir Kang to represent him in his asylum
application filed shortly after his arrival in the United States.
Kang has since been disbarred from practice in the immigra-
tion courts and this court based on his unethical and grossly
SINGH v. HOLDER 4035
inadequate representation of clients. In re Kang, D2005-184
(BIA April 11, 2006); In re Randhir S. Kang, Esq., No. 04-
80059 (9th Cir. Nov. 28, 2005).
The Immigration Judge issued a single oral opinion cover-
ing both Singh and Kaur. The Immigration Judge found that
the couple’s claims, “if credible, would form the basis for a
grant of asylum,” but she denied both applications based on
a single adverse credibility finding: “respondents’ testimony
has been proven to be false and has been consciously incor-
rect.”
The majority holds that the Immigration Judge legitimately
based her adverse credibility finding against Singh on state-
ments made by Kaur. In Oliver Twist, when Mr. Bumble is
informed that “the law supposes that your wife acts under
your discretion,” he replies, “If that’s the eye of the law, the
law is a bachelor; and the worst I wish the law is that his eye
may be opened by experience — by experience.” Experience
in America establishes that a marital union does not dissolve
the identities of the two spouses.