NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 24 2015
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
KARAMJIT SINGH; SUKHBIR KAUR; No. 12-71323
ABHAY JEET SINGH,
Agency Nos. A89-299-575
Petitioners, A89-299-576
A89-299-577
v.
LORETTA E. LYNCH,* Attorney MEMORANDUM**
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 13, 2015
San Francisco, California
Before: REINHARDT, TASHIMA, and CALLAHAN, Circuit Judges.
Karamjit Singh; his wife, Sukhbir Kaur; and their son, Abhay Jeet Singh1,
natives and citizens of India, seek review of the Board of Immigration Appeals’
* Loretta E. Lynch is substituted for her predecessor, Eric H. Holder,
Jr., as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2).
** This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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The latter two are derivative petitioners to Karamjit Singh.
(“BIA”) decision affirming an Immigration Judge’s (“IJ”) denial of Singh’s
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C.
§ 1252. We review factual findings for substantial evidence, Zhi v. Holder, 751
F.3d 1088, 1091 (9th Cir. 2014). Substantial evidence does not support the BIA’s
and IJ’s adverse credibility determinations. We therefore grant the petition for
review.
Singh testified that he was arrested three times in India because of his
membership in the Khalra Mission Committee, a human rights organization that
advocated a separate Sikh nation of Khalistan.
The BIA rejected the IJ’s reliance on Petitioner’s demeanor as a basis for the
adverse credibility determination, but accepted five of the IJ’s credibility reasons
for denying Petitioner’s applications. We address each ground below.
1. Whether Petitioner was hung upside down during his first arrest. Even
the government agrees that this portion of the record is rife with translation
difficulties. It is clear that any inconsistency in Petitioner’s answers were due to
translation difficulties. When those difficulties were cleared up, Petitioner’s
answers were acceptable.
2. Whether Petitioner’s son was present at his second arrest. When asked
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whether his son was present at his June 14, 2006, arrest, Petitioner answered in the
affirmative. When reminded, however, that his son was not born until July 8, he
changed his answer. What is the materiality of whether his infant son was or was
not present? What difference does it make that his son was born before or a few
weeks after his second arrest? The question is trivial.
3. The time of Petitioner’s first and third arrest. Petitioner testified that his
first arrest occurred in the morning, but stated in his asylum declaration that he was
arrested in the evening. Similarly, he testified that his third arrest occurred in the
evening, but his declaration states that it happened at noon. He corrected both
answers that he gave on cross-examination. Do mistakes in recounting the details
of his three arrests make any difference? We have previously recognized “that
victims of abuse often confuse the details of particular incidents, including the time
or dates of particular assaults and which specific actions occurred on which
specific occasion.” Ren v. Holder, 648 F.3d 1079, 1085-86 (9th Cir. 2011)
(internal quotation marks omitted).
4. Whether Petitioner’s mother can sign her name. Petitioner testified that
his mother was illiterate and could not sign her name. He changed his testimony
when confronted with an affidavit (which Petitioner introduced) signed by his
mother. It would be a rare occasion when a housewife and mother in rural India
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would be called upon to sign any document, and it may be that Petitioner never
saw his mother sign anything. No one contests that she’s illiterate. What purpose
would Petitioner have to lie about this subject? In fact, what is its relevance? Any
inconsistency is trivial.
5. The hospital records. The BIA viewed the hospital records as suspicious
because it considered the date in the “Date” block at the head of the record to be
the date the letters were written. This date precedes Petitioner’s treatment dates;
thus, the suspicion: Under this interpretation it would appear that the letters were
written before the treatment took place. But there is another, equally plausible
interpretation: That “Date” is the date of Petitioner’s admission to the hospital.
This was Petitioner’s testimony. There is no inconsistency.
The inconsistencies the BIA and IJ relied on are either non-existent or
trivial, and thus do not constitute substantial evidence in support of the BIA’s and
IJ’s adverse credibility determinations. See Zhi, 751 F.3d at 1091 (quoting
Shrestha v. Holder, 590 F.3d 1034, 1043-44 (9th Cir. 2010) (adverse credibility
finding cannot be based only on “utterly trivial” inconsistencies that do not bear on
a petitioner’s veracity “under the total circumstances”)). In sum, the BIA’s and
IJ’s adverse credibility determinations are not based on substantial evidence.
The petition for review is granted and the case is remanded to the BIA for a
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determination whether, accepting Petitioner’s testimony as credible, Singh is
eligible for asylum, withholding of removal, or relief under the CAT.
PETITION GRANTED and REMANDED.
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FILED
Singh v. Lynch, No. 12-71323 SEP 24 2015
MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting U.S. COURT OF APPEALS
I respectfully dissent because I find the BIA’s adverse credibility finding to
be supported by substantial evidence.
The BIA provided five reasons in support of its adverse credibility finding:
(1) inconsistencies in Petitioner’s testimony regarding whether he was hung upside
down during the first arrest, (2) inconsistencies in Petitioner’s testimony regarding
whether his son was present at the second arrest, (3) inconsistencies in Petitioner’s
testimony regarding the time of day of his first and third arrests, (4) inconsistencies
in Petitioner’s testimony regarding whether his mother can sign her name, and (5)
the suspiciousness of the hospitalization records corroborating Petitioner’s
testimony.
While some of these reasons, standing alone, might be insufficient to justify
an adverse credibility finding, others are sound and together are persuasive. In
particular, Singh’s inconsistent testimony regarding whether he was hung upside
down during his first arrest and whether his son was present during his second
arrest constitutes substantial evidence that Singh lacks credibility. The presence of
one’s child at the scene of one’s arrest is not a detail that is likely to be forgotten.
Rather, the detail is likely to be a vivid aspect of the fear and humiliation attendant
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to the arrest. Similarly, whether one was hung upside down by the police is not
something likely to be misremembered. These inconsistencies cannot be dismissed
as the product of translation problems, even if the cold record before us arguably
shows that explanation to be conceivable. Rather, “to overturn an IJ’s adverse
credibility determination, we must find that the evidence not only supports [a
contrary] conclusion, but compels it.” Lianhua Jiang v. Holder, 754 F.3d 733, 739
(9th Cir. 2014) (alternation in original).
Other evidence also supports the IJ and BIA’s adverse credibility finding.
For example, Singh could not describe in any detail the purpose of the Khalra
Mission Committee, even though his alleged membership with that organization
was the basis of his alleged persecution by police in India. Because the BIA’s
decision is supported by substantial evidence, I would deny Singh’s petition as
required by the REAL ID act.
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