NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMANDEEP SINGH, No. 15-71343
Petitioner, Agency No. A088-716-329
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 15, 2017
San Francisco, California
Before: BERZON and FRIEDLAND, Circuit Judges, and SESSIONS,** District
Judge.
Amandeep Singh (“Singh”) petitions for review of the Board of Immigration
Appeals’ (“BIA”) denial of his applications for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
1. Singh claims that he is a member of the Shiromani Akali Dal, a political
party that promotes the establishment of a separate state for Sikhs in India. Singh
submits that he participated in rallies, demonstrations, and other politically
motivated activities, and as a result encountered three persecutory incidents: once
being beaten and threatened with death by civilians belonging to the Badal Party,
and twice being arrested, detained, and tortured by Punjabi Police. The
Immigration Judge (“IJ”) found Singh not credible, and the BIA upheld that
determination. The agency’s credibility determination is supported by substantial
evidence.
2. This Court reviews “denials of asylum, withholding of removal, and CAT
relief for substantial evidence and will uphold a denial supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Ling
Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014) (quoting Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2013)) (internal quotation marks omitted).
Specifically, we “review factual findings, including adverse credibility
determinations, for substantial evidence.” Yali Wang v. Sessions, 861 F.3d 1003,
1007 (9th Cir. 2017) (quoting Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014))
(internal quotation marks omitted). This means that the agency’s “findings of fact
are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “[O]nly the most extraordinary
2 15-71343
circumstances will justify overturning an adverse credibility determination.”
Bingxu Jin v. Holder, 748 F.3d 959, 964 (9th Cir. 2014) (quoting Shrestha v.
Holder, 590 F.3d 1034, 1041 (9th Cir. 2010)).
3. Under the REAL ID Act, “there is no presumption that an applicant for
relief is credible, and the IJ is authorized to base an adverse credibility
determination on ‘the totality of the circumstances’ and ‘all relevant factors.’”
Ling Huang, 744 F.3d at 1152–53 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Such
factors include the alien’s “demeanor, candor, or responsiveness.” 8 U.S.C. §
1158(b)(1)(B)(iii). Demeanor findings “should specifically point out the
noncredible aspects of the petitioner’s demeanor.” Shrestha v. Holder, 590 F.3d
1034, 1044 (9th Cir. 2010). The IJ may also consider inconsistencies between the
petitioner’s statements and other evidence in the record. 8 U.S.C. §
1158(b)(1)(B)(iii). “When an inconsistency is cited as a factor supporting an
adverse credibility determination, that inconsistency should not be a mere trivial
error such as a misspelling, and the petitioner’s explanation for the inconsistency,
if any, should be considered in weighing credibility.” Shrestha, 590 F.3d at 1044
(citations omitted). Regardless of the factors relied upon by the IJ, the IJ must
provide “specific and cogent reasons” to support an adverse credibility
determination. Id. at 1042.
3 15-71343
4. The BIA cited six specific findings made by the IJ that, in light of “the
totality of the circumstances,” the BIA believed supported the IJ’s adverse
credibility determination. 8 U.S.C. § 1158(b)(1)(B)(iii). The first two—Singh’s
secular appearance and his admission that he had not been baptized as a Sikh—are
speculative and unconvincing. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir.
2000) (“Speculation and conjecture cannot form the basis of an adverse credibility
finding.”). However, the other four are sufficient to support an adverse credibility
determination. First, Singh’s demeanor when testifying—notably his “stiffness,
crossed arms, and rote testimony”—was inconsistent with someone who suffered
the abuse detailed in his declaration. Second, Singh’s Shiromani Akali Dal
membership card appeared inauthentic due to the “crude pasting” of Singh’s
photograph over the seal. Third, Singh’s medical documentation was not
contemporaneously prepared and did not explain how the information was
retrieved. Finally, Singh’s father’s affidavit was written in English even though
his father is unable to read or write English and no certificate of translation was
attached.
5. Singh argues that the IJ’s demeanor findings were “arbitrary, capricious,
and are not evidenced on the record.” We disagree. The IJ’s “specific, first-hand
observations” are “precisely the kind of credibility cues that are the special
province of the factfinder.” See Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir.
4 15-71343
2017). Further, the IJ is not required to conduct a running commentary on an
alien’s credibility on the hearing record. Id. at 1264. In its demeanor findings, an
IJ can consider “the expressions of [the petitioner’s] countenance, how he sits or
stands, whether he is inordinately nervous, his coloration during critical
examination, the modulation or pace of his speech and other non-verbal
communication.” Ling Huang, 744 F.3d at 1153 (quoting Shrestha, 590 F.3d at
1042).
Singh also argues that it was unreasonable for the agency to discredit his
documentary evidence. There is sufficient evidence in the record, however, for
this court to “objectively verify [that] the IJ ha[d] a legitimate basis to distrust the
documents.” Lin v. Gonzales, 434 F.3d 1158, 1162 (9th Cir. 2006). Moreover, the
IJ is not required to accept Singh’s documentation as valid; “rather, the petitioner
has the burden to satisfy the trier of fact by offering credible and persuasive
evidence.” Yali Wang, 861 F.3d at 1007–08. In sum, the IJ’s demeanor findings
were sufficiently specific, and the IJ provided specific and cogent reasons for why
the questionable nature of Singh’s documentary evidence undermined his
credibility.
6. The BIA considered the totality of the record and concluded that the IJ’s
adverse credibility finding was not clearly erroneous. The BIA reasoned that
Singh’s lack of credibility “undermines all of his claims” and that “[i]n the absence
5 15-71343
of credible testimony, the record is not sufficient to meet his burden of proving he
suffered past persecution or has a well-founded fear of being persecuted in the
future.” The BIA therefore affirmed the IJ’s ruling denying Singh’s asylum and
withholding of removal claims. The BIA also held that the IJ’s finding that Singh
does not have a clear probability of being tortured if returned to India is not clearly
erroneous. The BIA therefore affirmed the IJ’s ruling denying Singh’s CAT claim.
7. There is no evidence that compels any reasonable fact-finder to conclude
that the agency’s adverse credibility determination was incorrect. See 8 U.S.C. §
1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). After
considering the totality of the circumstances, the agency reached a reasonable
conclusion that Singh’s was not credible. Singh’s lack of credibility undermines
all of his claims, and the record is not sufficient to meet his burden of proving he
suffered past persecution, has a well-founded fear of being persecuted in the future,
or that it is more likely than not that he would suffer torture by or with the
acquiescence of a government official in India. Because Singh was found not
credible, eligibility for CAT protection would have to be based exclusively on
State Department country reports. Based on those reports, there is no reason to
believe that Singh could not safely relocate to another region in India.
8. Accordingly, the agency’s adverse credibility determination is supported
by substantial evidence, and Singh cannot satisfy his burden of proving that he is
6 15-71343
eligible for asylum and withholding of removal. Similarly, the agency’s
determination that Singh is not entitled to protection under the CAT is supported
by substantial evidence. For the foregoing reasons, Singh’s petition for review of
the BIA’s decision is DENIED.
7 15-71343
FILED
Amandeep Singh v. Sessions, No. 15-71343
JAN 05 2018
Berzon, J., dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would grant the petition. Although there may be other bases for an adverse
credibility finding, the factors actually relied upon by the Immigration Judge (“IJ”)
and Board of Immigration Appeals (“BIA”) do not constitute substantial evidence
supporting the finding.1 And we must review the agency’s reasoning, not what it
might have said. See, e.g., Recinos De Leon v. Gonzales, 400 F.3d 1185, 1189 (9th
Cir. 2005).
First, as the majority recognizes, central reasons given by the BIA for
approving the adverse credibility determination should not have been considered.
Lack of adherence to Sikh practice and failure to be baptized are not probative of
whether petitioner was likely to support a political organization advocating for a
Sikh state. Sikhs, like other distinct groups, have ties to each other that go beyond
strict religious adherence; less religious members may well support the interests of
the more religious, or work to advance the cultural interests of the overall
community. See, for example, regarding the secular Jews who largely created the
1
Notably, the Attorney General’s brief implicitly recognizes that the BIA’s
reasoning does not stand up, as it relies heavily on factors not mentioned by the
agency. Commendably, the government attorney arguing before us acknowledged
before argument that this reliance in the brief on different reasoning than that
adopted by the BIA was improper.
State of Israel, Walter Laqueur, The History of Zionism 133, 170 (3rd ed. 2003);
Yaacov Yadgar, Sovereign Jews: Israel, Zionism, and Judaism 82, 103-04 (2017).
Second, and critically, neither the IJ nor the BIA relied on either the
membership card or the medical documentation as affirmative support for the
adverse credibility finding. Instead, the IJ, with BIA approval, declined to consider
the card as “persuasive corroboration of his supposed political activities in India,”
and “[did] not consider the medical documentation . . . as supporting the bona fides
of [Singh’s] past persecution claim.”2
As to the father’s affidavit, Singh offered an explanation concerning why the
document was in English—that Indian courts can translate Punjab statements into
English. The IJ did not comment on that explanation or state why it was
disbelieved. Without such comment, that factor is not evidence for an adverse
credibility finding. See, e.g., Ai Jun Zhi v. Holder, 751 F.3d 1088, 1092-93 (9th
Cir. 2014); Osorio v. INS, 99 F.3d 928, 933 (9th Cir. 1996) (holding that the
agency “must address in a reasoned manner” any explanations offered by
2
I note as well that there is nothing particularly odd about a medical doctor
having records regarding medical treatment provided four years before. And when
doctors issue reports on medical treatment, they do not usually explain how they
are “able to reconstruct the record of medication and treatment,” as the BIA would
require. That the doctor had not provided the patient with a written medical report
at the time of treatment is also not unusual; although many doctors in this country
now do so, that is a fairly recent practice.
2
petitioners for “perceived inconsistencies”).
That leaves, as supporting the adverse credibility finding, demeanor. As far
as I can determine, no Ninth Circuit case has approved reliance on demeanor alone
as substantial evidence for an adverse credibility finding. I would not do so here.
The demeanor assessment relied on the IJ’s impression that Singh’s
“demeanor was . . . inconsistent with someone who had undergone several arrests
and beatings,” because Singh “sat stiff” and crossed his arms, and because “[h]is
testimony was rote and appeared to have been rehearsed.” Of course, court
testimony is usually “rehearsed,” to a degree. The arrests and beatings were four
years before Singh testified, so any severe emotional impact could well have
passed. And, having read the testimony myself, it appears considerably more
coherent and responsive than is often the case.
Further, demeanor is often in the eyes of the beholder. And when the
beholder’s several other reasons for reaching an adverse credibility finding
otherwise must, as here, be disregarded, we should be particularly skeptical about
giving controlling weight to a demeanor assessment. Cf. Penasquitos Village Inc.
v. NLRB, 565 F.2d 1074, 1086 (9th Cir. 1977) (Duniway, CJ., concurring in part
and dissenting in part) (“I doubt if there are many cases in which the fact finder
relies on demeanor alone. There may not be any; I hope that there are none. . . .
3
Anyone who really believes that he can infallibly determine credibility solely on
the basis of observed demeanor is naive.”).
This skepticism is heightened, in my view, when some of the reasons given
are downright silly. The IJ here, for example, found the membership card
presented suspect because it said Singh was an “Active Member,” although he had
just joined. But many organizations have categories of membership that include
“active” status. A brand-new federal judge, for example, is an “active judge,” as
opposed to a “senior judge” or a “retired judge.”
I would hold that the agency’s adverse credibility finding is not based on
substantial evidence, grant the petition, and remand to the agency to consider
whether Singh met the one-year filing requirement for asylum, as well as to
determine whether he otherwise meets the requirements for asylum and
withholding of removal.3 I therefore respectfully dissent.
3
I concur in the denial of the petition with regard to the Convention Against
Torture claim.
4