FILED
NOT FOR PUBLICATION
MAR 18 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GURSHINDER SINGH, No. 18-70088
Petitioner, Agency No. A205-587-087
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 3, 2020**
Portland, Oregon
Before: WOLLMAN,*** FERNANDEZ, and PAEZ, Circuit Judges.
Gurshinder Singh, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Roger L. Wollman, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
Immigration Judge’s (“IJ”) denial of his application for asylum,1 withholding of
removal,2 and Convention Against Torture (“CAT”)3 relief. We grant the petition
and remand.
Singh asserts that the BIA erred when, despite presuming his testimony
credible,4 it denied relief on the basis that Singh failed to provide adequate
corroborating evidence, without first giving Singh notice of the corroborating
evidence that was necessary and an opportunity to provide the requisite evidence.
See 8 U.S.C. § 1158(b)(1)(B)(ii). We agree.
An alien who is presumed to be credible must be given notice of what
corroboration is required and an opportunity to provide that corroborating evidence
or to explain why the evidence is not reasonably available before the agency
determines that the alien did not meet the burden of proof. See Jie Shi Liu v.
Sessions, 891 F.3d 834, 837, 838–39 (9th Cir. 2018); Bhattarai v. Lynch, 835 F.3d
1
8 U.S.C. § 1158(a)(1).
2
8 U.S.C. § 1231(b)(3)(A).
3
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18.
4
The BIA presumed that Singh’s testimony was credible based on its
conclusion that the IJ did not make an explicit adverse credibility determination.
See 8 U.S.C. § 1158(b)(1)(B)(iii).
2
1037, 1047 (9th Cir. 2016); cf. Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th
Cir. 2017). But, until the IJ announced her decision, Singh was unaware that he
needed to provide additional corroborating evidence because the IJ had not given
him notice. See Bhattarai, 835 F.3d at 1047. Nor did the BIA provide notice of
the need for additional corroborating evidence and an opportunity to provide that
evidence before it announced its decision. It erred when it failed to do so.
It appears that the BIA declined to reach the merits of Singh’s CAT claim
based on the erroneous conclusion that Singh did not challenge the IJ’s denial of
CAT relief. See Doissaint v. Mukasey, 538 F.3d 1167, 1170 (9th Cir. 2008).
However, in his brief to the BIA, he did challenge the IJ’s denial of CAT relief.5
Thus, the BIA erred when it declined to consider his CAT arguments.6
We therefore remand to the BIA for further proceedings.7
Petition GRANTED and REMANDED.
5
See, e.g., Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
6
See Honcharov v. Barr, 924 F.3d 1293, 1296 n.2 (9th Cir. 2019) (per
curiam).
7
We note that to the extent Singh asserts that he was prejudiced because the
interpreter at the hearing before the IJ was not qualified, he waived that argument
by failing to raise it before the BIA. We lack jurisdiction to consider that claim.
See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009); Rashtabadi v. INS, 23
F.3d 1562, 1567 (9th Cir. 1994).
3