FILED
NOT FOR PUBLICATION APR 25 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JASWINDER SINGH, No. 08-73921
Petitioner, Agency No. A098-537-016
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 19, 2013 *
San Francisco, California
Before: SCHROEDER, SILVERMAN, and BEA, Circuit Judges.
Petitioner Jaswinder Singh, a native and citizen of India, petitions for review
of the Board of Immigration Appeals’ order denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture. We
have jurisdiction over this appeal pursuant to 8 U.S.C. § 1252(a)(1), and we grant
the petition for review.
*
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 Board of Immigration Appeals affirmed the immigration judge’s order
without discussion, thus we review the substance of the immigration judge’s order.
Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir. 2003). The IJ erred when she
found Singh’s testimony inconsistent and implausible, and therefore the record
compels finding Singh’s testimony credible. Kaur v. Ashcroft, 379 F.3d 876, 890
(9th Cir. 2004) (holding that an adverse credibility determination is overturned
only if each proffered reason for the determination fails).
First, the IJ erred when she found that Singh’s testimony was inconsistent
with his interview at the Asylum Office. That interview was not a part of the
record and thus cannot support the IJ’s ruling. See Singh v. Gonzales, 403 F.3d
1081, 1089 (9th Cir. 2005) (rejecting an IJ’s reliance on an interview at the
Asylum Office that was not in the record).
Second, the IJ erred when she found Singh’s testimony was inconsistent
with his declaration because his testimony “totally failed to indicate that the police
suspected he was involved with terrorists.” The record clearly demonstrates that
Singh testified that he was persecuted in part because the police believed he was
connected to terrorists.
Third, the IJ erred when she found Singh’s testimony implausible in light of
the country conditions. See Shah v. INS, 220 F.3d 1062, 1069 (9th Cir. 2000)
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(holding that a general assertion about conditions of peace in India was insufficient
to support a negative credibility finding because it was a blanket statement without
individualized analysis, and it was based on conjecture and speculation).
Fourth, the IJ erred by giving no weight to Singh’s affidavits. The record
demonstrates that relevant parts of the affidavits are based on personal knowledge,
and that the affidavits do not incorrectly state Singh’s party affiliation.
Finally, the IJ erred in finding it implausible that Singh would have
truthfully told the police at a checkpoint that he was coming from a party meeting.
Singh explained that he did not believe police outside of his hometown would care
about his party business. That explanation was at least plausible, and the IJ’s
conclusion that the explanation was implausible was based on impermissible
speculation. Zhou v. Gonzales 437 F.3d 860, 865 (9th Cir. 2006) (holding that
speculation and conjecture “‘cannot serve as a reason for an adverse credibility
finding.’” (citing Shah, 220 F.3d at 1071 (9th Cir. 2000)).
The IJ also erred when she held, in the alternative, that Singh’s mistreatment
was not persecution based on a protected ground even if Singh were deemed
credible. Singh suffered beatings by the police for “preaching against the
government” after canvassing for a political party and returning from a political
party meeting. This testimony demonstrates that Singh was persecuted, at least in
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part, based on his political opinions. See Borja v. INS, 175 F.3d 732, 736-37 (9th
Cir. 1999) (en banc) (finding a nexus where the petitioner was targeted for
extortion and for her political opinion), superseded by statute as stated by
Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).
Because Singh should have been deemed credible and found to have
suffered past persecution, we remand to the BIA for its consideration of whether
Singh has a well-founded fear of future persecution.
Also, because the IJ denied relief under the Convention Against Torture
based at least in part on the adverse credibility finding, we remand the CAT claim
for further proceedings as well.
We GRANT the petition for review.