FILED
NOT FOR PUBLICATION NOV 24 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANJIT KAUR, No. 06-72691
Petitioner, Agency No. A097-545-785
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 6, 2009 **
San Francisco, California
Before: HUG, RYMER and McKEOWN, Circuit Judges.
Gurbax “Manjit” Kaur, a native and citizen of India, petitions for review of
the decision by the Board of Immigration Appeals (“BIA”) adopting and affirming
the Immigration Judge’s (“IJ”) denial of her application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”) on adverse
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
credibility grounds. Kaur seeks relief based on her fear of future persecution and
torture due to her religion, imputed political opinion based on her brother’s
association with the Sikh political party, Shiromani Akali Dal Mann (“SADM”),
and membership in a particular social group. We grant Kaur’s petition because the
IJ’s credibility findings that went to the heart of Kaur’s claim were not supported
by substantial evidence. See Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007)
(citation omitted).
The IJ’s central finding—that Kaur testified inconsistently as to the number
of times she was raped while in police custody—is incorrect. Kaur repeatedly
testified that she was raped once, on one night, and that two police offers
participated in the assault. Because her testimony on this score was entirely
consistent and responsive, this finding is not supported.
The IJ also erred in finding that Kaur’s testimony regarding the
circumstances of her arrest was implausible. Kaur testified her arrest was
precipitated by the visit of her brother’s friends—local SADM members–inquiring
into her missing brother’s whereabouts. The IJ opined that it “didn’t make any
sense” for the SADM members to visit because they already suspected that Kaur’s
brother had been taken into police custody. But Kaur’s account is entirely
plausible: a substantial amount of time had elapsed since her brother’s
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disappearance, and his friends had previously expressed only suspicions that he
may have been arrested. Thus, because the IJ’s finding was based on improper
speculation, this finding is not supported. See Singh v. Gonzales, 439 F.3d 1100,
1108 (9th Cir. 2006) (holding that the IJ’s speculation regarding police behavior
did not support an adverse credibility finding).
The IJ also found that Kaur’s identity was in doubt because she used a false
passport to enter the United States. But use of a false passport “without more, is
not a proper basis for finding [an asylum applicant] not credible.” Kaur v.
Ashcroft, 379 F.3d 876, 889 (9th Cir. 2004) (citations omitted). In fact, the use of
a false passport is consistent with Kaur’s claim of harassment and pursuit by
government officials, and “is reasonably understood as the act of one seeking
refuge in the United States.” See id.
Finally, because Kaur testified credibly as to her identity and detention, rape,
and medical treatment, the IJ should not have required that she corroborate her
testimony on these issues. See id. at 889-90.
PETITION GRANTED.
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