Barapind v. Rogers

• Decision Date: 15 May 1997
• Docket Number: No. 96-55541,96-55541
• Citation: 114 F.3d 1193
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Kulvir Singh BARAPIND, Petitioner-Appellant, v. Clifton ROGERS, District Director, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1193

114 F.3d 1193

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Kulvir Singh BARAPIND, Petitioner-Appellant, v. Clifton ROGERS, District Director, Respondent-Appellee.

No. 96-55541.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 6, 1997.

Decided May 15, 1997.

Before: BOOCHEVER, NOONAN and KOZINSKI, Circuit Judges

MEMORANDUM ^*

Kulvir Singh Barapind (Barapind) filed a petition for habeas corpus to challenge an order of deportation by an immigration judge (IJ) and the affirmance of the IJ by the Board of Immigration Appeals (Board). The district court remanded to the Board. Barapind appeals.

The case arises in the context of the conflict raging since 1983 in Punjab where Sikhs are agitating and fighting to create a new nation, Khalistan, and the horrors of civil strife, reinforced by religious differences, have multiplied. In the course of this conflict the government of India has resorted to gross disregard of human rights--torture of suspects; detention of suspects for months or years without trial; abduction of suspects by the police without acknowledgment by the police that the kidnappings have occurred; and murder of suspects by the police in "encounters" or "escapes" staged by the police. At the same time rebel Sikhs have themselves engaged in terrorism, including assassination, against the government of India and local collaborators. Amnesty International has given an evenhanded account of the violence on both sides, Amnesty International, AI Index ASA 20/11/91, India. Human Rights Violations in Punjab: Use And Abuse of the Law (May, 1991). We draw our summary of the situation from this report which was submitted by Barapind and used extensively by the Board in its opinion.

In this maelstrom where political activities can shade into armed revolt and dissident views can be mistaken for treason and where death can be the penalty lawlessly exacted for political opinion, the Board has the difficult task of discerning the asylum-seeker persecuted on account of political opinion from the terrorist wanted for crime. The closest attention to the evidence properly presented is essential to the performance of this task where human life may be at stake. It is with regard for this heavy responsibility that we modify and affirm the order of remand to the Board with an explanation of why remand is required.

PROCEEDINGS

On April 25, 1993 Barapind attempted to enter the country and was detained by the Immigration and Naturalization Service (INS), in whose custody he has remained. At exclusion proceedings at San Pedro, California, he conceded deportability and applied for asylum and withholding of deportation. Lauren Mathon, the IJ presiding over his hearing, denied his application and ordered him excluded. The Board affirmed. On August 3, 1994 Barapind filed this petition for writ of habeas corpus in the district court. The matter was referred to a magistrate judge, who recommended remand to the Board to decide the case in accordance with a proper understanding of the law. The district court accepted the recommendation and so ordered.

Barapind appeals the order of remand. The respondent argues that no remand is necessary and asks for affirmance of the order of exclusion.

ANALYSIS

The Board held that what it characterized as Barapind's "primary persecution claim" was not supported because the IJ had found Barapind's testimony to lack credibility. The Board referred in a conclusory way to the main reasons for the IJ's negative determination, in effect inviting us to examine the IJ's exposition of her reasons. See Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir.1994). We review the IJ's credibility finding to determine whether it is supported by specific and cogent reasons that are substantial and bear a legitimate nexus to the finding. Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir.1990); Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987).

The INS argues as a preliminary matter that Barapind waived any challenge to the adverse credibility finding by not raising the issue before the Board. We disagree. By challenging the IJ's ultimate finding on asylum and withholding of deportation Barapind sufficiently challenged the credibility finding that formed the basis for the IJ's determination. Murphy v. INS, 54 F.3d 605, 611 n. 2 (9th Cir.1995); Aguilera-Cota, 914 F.2d at 1383 n. 8.

Several of the IJ's reasons for the adverse credibility finding do not afford a basis for that determination. In particular, the IJ thought that Barapind's "stoic" demeanor as he testified to torture by the Indian police was a sign that he was lying. Such an inference appears to reflect cultural bias on the part of the IJ. In many cultures and for many human beings the stoic acceptance of misfortune is expected from persons of constancy and courage. Sikhs have long enjoyed the reputation of being "unsurpassed" as soldiers because of their "hardy and brave" nature. See, e.g., Lepel Griffin, Rajit Singh 36-37 (1892). There is no reason to equate a brave or even cheerful demeanor with absence of suffering. A lie is not proved or even suggested by the proverbial stiff upper lip.

The IJ also doubted Barapind's testimony because he said that he was 29 and she thought that he looked 40. We see no basis for the IJ to have thought her own sizing up of the physical appearance of an alien gave her a superior insight into the age of the Sikh before her; still less do we see how her hunch showed that Barapind was lying.

The IJ also attached importance to the fact that in his asylum application Barapind claimed that as a result of the police applying electric current to parts of his body the skin peeled off his penis. At the hearing Barapind corrected this statement to say application of the electricity made it feel as though the skin peeled off. The difference between these two statements, particularly as the inaccurate one was corrected at the hearing, was not such that one would conclude that the application was deliberately false. Compare Martinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986) (trivial errors and inconsistencies between asylum application and testimony regarding number of children alien had and precise date alien joined right-wing paramilitary group are not a valid ground on which to base adverse credibility finding), Damize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986) (discrepancy in dates of birth of alien's children trivial), and Zavala-Bonilla v. INS, 730 F.2d 562, 566 (9th Cir.1984), with Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir.1992) (discrepancies in number of times alien was arrested and incarcerated and whether persecutors broke alien's jaw were significant and were properly considered in assessing credibility), Estrada-Posadas v. INS, 924 F.2d 916, 919 (9th Cir.1991) (discrepancy concerning whether alien's brother was alive or had been killed by authorities was significant), Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.1991) (discrepancy over who persecuted alien, guerrillas or government, was significant), and Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir.1988) (unexplained failure to mention any encounters with guerrillas in asylum application significantly contradicted by testimony about several encounters). Barapind's explanation that it was a mistranslation of his Punjab is plausible. Whether in the original or the corrected form, his testimony points to a hideous invasion of his body. It is little better than pedantry to treat him as a liar because the written application failed to be precise. See Aguilera-Cota, 914 F.2d at 1382.

The IJ also doubted Barapind because he had remained four years in India after he had been arrested and tortured. Again, the inference by the IJ seems to reflect her own cultural bias. Bravery is not to be confused with absence of fear. Singh v. Moschorak, 51 F.2d 1031, 1034 (9th Cir.1995). A courageous person, committed to a political cause, will remain in the land of his birth as long as he believes he has a chance of advancing his cause.

The IJ also doubted that the Indian government would have twice arrested and detained Barapind but both times let him go if in fact he was a leader of the All India Sikh Student Federation (AISSF) as he claimed he was. Rather, these facts suggest that the Indian government did not possess evidence of criminal conduct by Barapind but did have occasion to want to discourage his political activities. See Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.1996) (the IJ's "personal conjecture" about what alien's persecutors would or would not do is "not a substitute for substantial evidence"); Del Valle v. INS, 776 F.2d 1407, 1413 (9th Cir.1985) (alien's release by persecutors may not be sole basis for concluding alien is unlikely to suffer persecution on return to home country). The IJ also found Barapind not credible because he offered no newspaper articles corroborating that he was a leader of the AISSF. On this point, the IJ was simply mistaken in her recollection of the facts. Barapind did offer an article from an Indian newspaper identifying him as "Secretary" of the organization. The IJ also took into account that Barapind did not provide corroboration of his brother-in-law being severely beaten in the Punjab in August 1992. But corroborating affidavits have "never been required to establish an applicant's credibility." Lopez-Reyes, 79 F.3d at 912. We also note that...