FILED
NOT FOR PUBLICATION
OCT 30 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURDIAL SINGH; SUKHWINDER No. 10-72315
KAUR,
Agency Nos. A094-998-070
Petitioners, A094-998-071
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
GURDIAL SINGH; SUKHWINDER No. 11-70509
KAUR,
Agency Nos. A094-998-070
Petitioners, A094-998-071
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 19, 2015
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
San Francisco, California
Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.
Gurdial Singh, a native and citizen of India, petitions for review of a Board
of Immigration Appeals (BIA) order dismissing his appeal from the immigration
judge’s (IJ) denial of his application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). He also petitions for review of the
BIA’s denial of his motion to reopen. We grant in part and deny in part Singh’s
petition for review.
1. Substantial evidence supports the IJ’s adverse credibility determination.
Under the REAL ID Act, an IJ may, after considering the “totality of the
circumstances, and all relevant factors,” base an adverse credibility determination
on a witness’s inconsistent statements. Shrestha v. Holder, 590 F.3d 1034,
1039–40 (9th Cir. 2010) (citations omitted). The IJ noted, among other
inconsistencies, that Singh wrote in his application for asylum that he was beaten
following his 2003 arrest but later testified that he was not beaten during that
incident. Because this inconsistency is borne out in the record, substantial
evidence supports the IJ’s adverse credibility determination. See id. at 1043 & n.4.
2. Substantial evidence also supports the IJ’s and BIA’s determination that,
even assuming Singh was credible, any presumption of future persecution was
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rebutted by evidence of changed country conditions. The country reports support
the IJ’s and BIA’s conclusion that conditions had changed in India such that it is
now safe for Singh to live there. See Jagtar Singh v. Holder, 753 F.3d 826,
834–35 (9th Cir. 2014) (explaining that country conditions reports may rebut the
presumption of future persecution as long as the agency engages in an
individualized analysis of how those reports impact the specific applicant’s
claimed fear of future persecution).
3. The BIA abused its discretion in denying Singh’s motion to reopen. The
BIA faulted Singh for not providing original copies of the affidavits supporting his
motion to reopen, remarking that it was troubled by the lack of originals in light of
the previous adverse credibility determination.1 However, “[w]e have long held
that credibility determinations on motions to reopen are inappropriate. Indeed,
facts presented in affidavits supporting a motion to reopen must be accepted as true
unless inherently unbelievable.” Bhasin v. Gonzales, 423 F.3d 977, 986–87 (9th
Cir. 2005) (citation omitted). Because the BIA questioned the veracity of the facts
alleged in Singh’s affidavits without finding them inherently unbelievable, we
remand for the BIA to treat the allegations as true and then determine whether “the
1
The BIA’s Practice Manual “strongly recommends that parties submit
copies of supporting documents, not originals, unless instructed otherwise.” Board
of Immigration Appeals Practice Manual § 3.3(d)(iv) (emphasis added).
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new evidence, when considered together with the evidence presented at the original
hearing, would establish prima facie eligibility for the relief sought.” Id. at 984.
PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART. Each
party shall bear their own costs and fees.
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