Kaur v. Ashcroft

BEAM, Circuit Judge,

dissenting.

*55Because I believe the BIA’s determination is entitled to greater deference than that afforded by the court, and because there was substantial evidence to support the BIA’s adverse credibility determination, I respectfully dissent.

An appellate court reviews a determination that an applicant has not established eligibility for asylum under the substantial-evidence standard of review. Kataria v. INS, 232 F.3d 1107, 1112 (9th Cir.2000). “All the substantial evidence standard requires is that the BIA’s conclusion, based on the evidence presented, be substantially reasonable.” Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986). “We must affirm if the BIA’s determination is ‘supported by reasonable, substantial, and probative evidence,’ and we reverse only if ‘the evidence [Kaur] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.’” Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir.2002) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see also 8 U.S.C. § 1252(b)(4)(B) (“[Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”). Credibility determinations are judged by the same basic standard, but under this circuit’s jurisprudence they must be supported by a specific, cogent reason in immigration proceedings. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002); de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir.1997). Under this highly deferential standard I cannot join the court’s opinion.

The court questions the IJ’s adverse credibility finding in this case and goes on to mandate that Kaur’s testimony is, in fact, credible. I do not agree with this approach. The IJ is charged with making, and uniquely positioned to make, factual findings. The proper role of this appellate court is to review those findings using the substantial evidence standard. If the IJ relied upon sufficient grounds for its adverse credibility finding, articulated its bases for that determination, and the evidence does not compel a contrary result, we must affirm. Singh, 301 F.3d at 1111. In order to reverse the BIA’s adverse credibility determination, we must find that the evidence not only supports a contrary conclusion, but indeed compels it. It is impossible to make such a determination on this record.

The IJ relied upon several specific inconsistencies in Kaur’s testimony, as well as significant problems with each piece of documentation Kaur submitted in support of her application. The IJ specifically articulated his doubts surrounding Kaur’s testimony about many things including (1) the date she fled to her uncle’s home following her third arrest, (2) the date she actually left India, and (3) her failure to indicate that the police were ever looking for her despite her stated fear. Although the court asserts that these discrepancies were mere peripheries and not supported by substantial evidence, that interpretation is not compelled by the evidence. The IJ has certainly observed many people in Kaur’s position and I defer to his ability to make credibility determinations based upon certain inconsistencies and behavioral patterns. Indeed, although the IJ does not specifically mention Kaur’s demeanor while testifying in his presence, the opportunity to see and hear a witness’s responses are factors that we cannot ignore in evaluating an IJ’s determination. For these reasons I would deny the petition for review.