FILED
NOT FOR PUBLICATION OCT 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAVINDER SINGH, No. 09-73469
Petitioner, Agency No. A098-505-456
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 February 3, 2014
Pasadena, California
Before: PREGERSON and BERZON, Circuit Judges, and AMON, Chief District
Judge.**
Ravinder Singh, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Carol Bagley Amon, Chief District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We grant the petition and remand to the BIA
for further proceedings on an open record.
The BIA focused on two intertwined issues in affirming the IJ’s
determination below: (1) despite his testimony about his active participation in the
Shiromani Akali Dal Mann party, Singh testified that his village belonged to a
parliamentary constituency that did not correspond to any of the listed
constituencies on an Indian Election Commission’s list of constituencies in Punjab
provided by the DHS attorney; and (2) the candidate Singh identified as the
winning candidate from his constituency in the 1999 parliamentary election was
not listed on the Indian Election Commission’s published candidate list for 1999
provided by the DHS attorney. The BIA also determined that the minor
inconsistencies identified by the IJ, when viewed cumulatively, further served to
weaken Singh’s credibility.
Singh testified that his village was located in the Dakha1 constituency, a
constituency that was not on the list of 13 constituencies provided by the DHS
1
Singh was never asked to spell any names during his hearing. The
transcript spells “Dakha” as “Dakhan,” “Rajinder Kaur Bulara” as “Rijander Kaur
Bulara,” “Shiromani Akali Dal Mann” as “Shirmi Khali Da Ma,” and “Ludhiana”
as both “Gutiana,” and “Ludian.”
2
attorney. The DHS attorney represented to the IJ multiple times that the 13 listed
constituencies included “all the constituencies” in Punjab. Relying in part on this
representation, the IJ and BIA found Singh’s testimony not credible.
It is unclear from the list itself, however, what the list is, whether it is a
complete list of constituencies in Punjab, or whether there are other constituencies
not on the list. In fact, as the record itself indicates, the list included only the 13
parliamentary constituencies in Punjab; it did not list the 117 assembly
constituencies in Punjab.2 Moreover, during oral argument before this court, the
government admitted that it made a mistake if Dakha was one of the 117 assembly
constituencies. In light of the government’s concession and the cryptic and
inadequate nature of the list itself—which does not state what it is or whether it is a
complete list of constituencies—we conclude that this perceived inconsistency is
not a cogent reason upon which an adverse credibility finding may be based. See
2
Although we do not rely on evidence outside the record in resolving this
case, we do note that the same official Indian Election Commission website used
by the DHS attorney confirms our conclusion that the DHS attorney’s list is not a
complete list of all the constituencies in Punjab. That website lists the 117
assembly constituencies in Punjab, one of which is Dakha, the constituency Singh
named as his constituency. See Statistical Report on General Elections, 1999 to the
Thirteenth Lok Sabha, Volume III, at 838-79 (listing all assembly constituencies
within Punjab), available at
http://eci.nic.in/eci_main/StatisticalReports/LS_1999/Vol_III_LS_99.pdf; see also
id. at 862-65 (showing the Dakha assembly constituency within the Ludhiana
parliamentary constituency).
3
Zahedi v. INS, 222 F.3d 1157, 1165 (9th Cir. 2000) (“[A]dverse credibility
findings must be based on specific, cogent reasons that bear a legitimate nexus to
the finding.”).
The other noted major inconsistency is bound up with the first. We are
therefore unable to determine whether the BIA and IJ would have found Singh
incredible based on the second major inconsistency alone.3
Moreover, the minor inconsistencies identified by the IJ cannot support an
adverse credibility finding. The IJ noted that these minor inconsistencies “do not
independently justify an adverse credibility determination,” but “taken
cumulatively” and “[i]n light of the major inconsistencies . . . , these additional
3
Again, although we do not rely on this evidence in resolving this case, we
note that the candidate Singh named—Rajinder Kaur Bulara—was a Member of
Parliament from the Shiromani Akali Dal Mann party in 1989. See The Election
Commission of India, Key Highlights of General Elections, 1989 of the Nineth
Lok Sabah, at 79, available at
http://eci.nic.in/eci_main/SR_KeyHighLights/LS_1989/Vol_I_LS_89.pdf.
She also ran in the 2002 Punjab state election from the Ludhiana West
assembly constituency. See The Election Commission of India, Statistical Report
on General Elections, 2002 to the Legislative Assembly of Punjab, at 145 available
at http://eci.nic.in/eci_main/StatisticalReports/SE_2002/Stat_rep_2002_PB.pdf.
Moreover, Singh appears to have correctly identified the Shiromani Akali
Dal Mann candidate from Dakha in the 2002 Punjab state election as Bikramjit
Singh Khalsa. See id. at 144 (reporting candidate as Bikramjit Singh). He also
correctly stated that the Indian National Congress candidate was the winner from
the Dakha constituency in that election. See id. (reporting Indian National
Congress candidate Malkiat Singh Dakha the winner of the Dakha constituency).
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inconsistencies weaken [Singh’s] credibility such that the claim is deprived of the
‘requisite ring of truth.’” Yet all but one of the minor inconsistencies identified by
the IJ are in fact not inconsistencies, and the one remaining does not call Singh’s
credibility into question:
1. There is no inconsistency between Singh’s testimony on direct
examination that he was in Ambala, Haryana in the days following a
January 20, 2004 meeting, and his testimony on cross-examination
that he initially went to Ludhiana when he left home on the night of
January 20, 2004, and then traveled from place to place.
2. Both Singh and his father stated that Gurmeet Singh was killed in
2003. Naginder Singh, a family friend, provided a different date.
This discrepancy in the record is not of sufficient import to call into
question Singh’s credibility.
3. Singh’s failure to mention that his father became disabled as a result
of being beaten by the police is not an inconsistency. Singh was not
asked what happened to his father after his father was released from
police custody; he was asked what happened to his parents during
their arrest. He answered the question asked, stating that his father
was beaten. Merely omitting a detail in his testimony that he was not
5
asked to provide cannot support an adverse credibility finding. See
Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000). Moreover,
Singh stated in his asylum application that his father “became
handicapped” because of the police torture he experienced in January
2004. This is consistent with his father’s and Naginder Singh’s
affidavits.
4. There is no inconsistency as to the date Singh went into hiding. Singh
stated that he and his brother went into hiding in January 2004. Singh
stated in his asylum application that his brother went to Ganga Nagar
in March 2004, while they were already in hiding, and that his family
never heard from his brother after April 2004. This statement is
consistent with Naginder Singh’s affidavit that Singh and his brother
went into hiding in January 2004 and Naginder Singh never saw them
again. Finally, Singh’s father did not say that his eldest son went into
hiding in April 2004; he stated that his eldest son had been missing
since April 2004, at which point he was already in hiding. This
account is consistent with Singh’s claim in his asylum application that
his family had not heard from his eldest brother since April 2004.
5. Speculation and conjecture that it made “little sense” for the police to
6
threaten to arrest the protesters but then not follow through with the
threat cannot form the basis of an adverse credibility finding. See
Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000). This conclusion
has particular force here because the police did follow through on
their threat. The police arrested Singh and his brother at their home
the following day when they were no longer in a public place and
surrounded by spectators.
6. The IJ also listed as a minor inconsistency Singh’s purported inability
to explain why he hosted a political meeting in his home despite
knowing the police were monitoring his activity. Singh provided an
explanation. The IJ’s speculation and conjecture about what someone
in Singh’s position—a person fighting for an independent Sikh
state—would or would not do cannot form the basis of an adverse
credibility finding. See Zhou v. Gonzales, 437 F.3d 860, 865 (9th Cir.
2006).
We note that the BIA did not make an alternative finding that, even if
credible, Singh failed to establish past persecution.
Finally, substantial evidence does not support the BIA’s determination that
Singh lacked an objectively reasonable fear of future persecution if returned to
7
India. The BIA concluded that conditions have improved in India for Sikhs in
general and members of the Shiromani Akali Dal party in particular. The BIA’s
conclusion is wrong. The BIA confused the mainstream Shiromani Akali Dal
party with Singh’s Sikh separatist party, the Shiromani Akali Dal Mann party. The
Shiromani Akali Dal Mann party is not a mainstream party—it continues to
advocate passionately for a separate Sikh state and is treated differently and often
harshly by the authorities. See Singh v. Gonzales, 238 Fed.Appx. 285, 286-87 (9th
Cir. 2007) (unpublished).
Moreover, Singh is not an average Sikh. Singh’s testimony and the
statements from Singh’s father and Naginder Singh indicate that the police
continue to harass his family.
The country conditions on which the BIA relied fail to show whether
someone in Singh’s position—a member of the Shiromani Akali Dal Mann party
whose family is still being harassed by the police because of his political
advocacy—no longer faces persecution in India. See Marcos v. Gonzales, 410
F.3d 1112, 1120-21 (9th Cir. 2005) (requiring an individualized determination
whether the changed county conditions will affect the applicant’s specific
situation). The BIA’s determination is not supported by substantial evidence.
For the foregoing reasons, we grant the petition for review and remand on an
8
open record for a renewed credibility finding. We also remand for a new
determination of changed country conditions, taking into account that Singh
alleges that he is a member of the Shiromani Akali Dal Mann party, not the
mainstream Shiromani Akali Dal party.
GRANTED and REMANDED on an open record.
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