Singh v. Immigration & Naturalization Serv.

• Decision Date: 21 July 1999
• Docket Number: SINGH-KAUR,No. 98-70864,98-70864
• Citation: 183 F.3d 1147
• Parties: (9th Cir. 1999) SATNAM, aka HARI SINGH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1147

183 F.3d 1147 (9th Cir. 1999)

SATNAM SINGH-KAUR, aka HARI SINGH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70864

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 16, 1999

Decided July 21, 1999

Alan M. Kaufman, San Francisco, California, for the petitioner.

Kurt Larson and John C. Cunningham, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A74-149-590.

Before: Thomas G. Nelson, Michael Daly Hawkins, and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber; Dissent by Judge Hawkins

GRABER, Circuit Judge:

In this immigration case, we are called on to decide whether the adverse credibility findings by the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) are supported by substantial evidence in the record. We hold that they are and, accordingly, deny the petition.

PROCEDURES BELOW

Petitioner entered the United States without inspection on May 1, 1995. The United States Immigration and Naturalization Service (INS) later charged Petitioner with being deport- able under former section 241(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. S 1251(a)(1)(B) (1994) (renumbered S 1227(a)(1)(B)). He conceded deportability but applied for asylum, withholding of deportation, and voluntary departure.

After a hearing, the IJ approved Petitioner's application for voluntary departure, a decision from which no appeal has been taken. However, she denied Petitioner's application for asylum and for withholding of deportation on the ground that Petitioner had not presented credible evidence in support of his claims. The BIA affirmed the IJ's order. Petitioner timely sought review of the BIA's final order, arguing that its adverse credibility finding is not supported by substantial evidence.

BURDEN OF PROOF

Under section 208(a) of the INA, 8 U.S.C. S 1158(a), the Attorney General has discretion to grant asylum to aliens who qualify as "refugees" under the INA. See INS v. Elias- Zacarias, 502 U.S. 478, 481 (1992). A "refugee" is a person who is unwilling to return to the home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. S 1101(a)(42).

An alien bears the burden of establishing eligibility for asylum. See Mejia-Paiz v. INS, 111 F.3d 720, 723 (9th Cir. 1997). An alien must show by credible, direct, and specific evidence an objectively reasonable basis for the claimed fear of persecution. See Prasad v. INS, 47 F.3d 336, 338 (9th Cir. 1995).

The Attorney General must grant withholding of deportation when an alien demonstrates a "clear probability" that, if the alien returns to the home country, the alien's "life or free- dom would be threatened" on account of race, religion, nationality, membership in a particular social group, or political opinion. INS v. Stevic, 467 U.S. 407, 429-30 (1984). As with asylum, an alien bears the burden of establishing eligibility for withholding of deportation. See Rebollo-Jovel v. INS, 794 F.2d 441, 448 (9th Cir. 1986). The burden of proof for withholding of deportation is higher than the burden of proof for asylum. See Prasad, 47 F.3d at 340. Therefore, if an alien fails to establish eligibility for asylum, then the alien necessarily fails to establish eligibility for withholding of deportation. See id.

STANDARD OF REVIEW

We review credibility findings of an IJ and the BIA under a "substantial evidence" standard. See Ramos-Vasquez v. INS, 57 F.3d 857, 861 (9th Cir. 1995). That standard is "extremely deferential." Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995). The court must uphold the BIA's findings unless the evidence presented would compel a reasonable finder of fact to reach a contrary result, see de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997); however, minor inconsistencies in the record are not an adequate basis for an adverse credibility finding, see Mejia-Paiz, 111 F.3d at 726. " `[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.' " Leon-Hernandez v. INS, 926 F.2d 902, 904 (9th Cir. 1991) (quoting American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981)).

When the BIA adopts an IJ's findings and reasoning, we review the IJ's opinion as if it were the opinion of the BIA. See Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir. 1995). Here, the BIA found that Petitioner's "testimony was not credible, based upon the reasons articulated in the Immigration Judge's decision." In addition to adopting her credibility findings, the BIA also adopted the IJ's reasoning. Accordingly, we apply the standard of review to the IJ's opinion.

PETITIONER'S TESTIMONY

At his deportation hearing, Petitioner testified to the fol- lowing facts. Petitioner is a native and citizen of India, having been born on January 4, 1960, in the village of Bhan Mazara in the Punjab. He testified that his name is "Hari Singh" and that "Satnam" is not his true first name.

On January 17, 1993, Petitioner was elected sarpanche (leader of the village council) of his village. As sarpanche, he had organizational, administrative, and economic responsibilities. A village council of seven members, whom Petitioner appointed, assisted him with these responsibilities.

Petitioner testified that he came to the United States because the Indian police had arrested him twice and had mistreated him during both arrests. Petitioner stated that his first arrest was related to a police attack on a family's house in his village. That attack left one woman dead. The woman killed was the sister-in-law of Gurdial Singh, a member of the village council. The police accused Gurdial Singh's sister-in-law of harboring militants and holding political meetings in her home.

On July 4, 1993, Gurdial Singh was arrested by the police and taken to the police station. The police tortured Gurdial Singh so badly that he died two days after they released him. After Gurdial Singh's death, about 500 people protested at the police station, demanding that the officers responsible for Gurdial Singh's death be punished. Petitioner testified that he and other community leaders organized that demonstration.

Petitioner supplied the IJ with a newspaper clipping that recounted the events surrounding the demonstration. The newspaper article contained a photograph that Petitioner said shows him at the demonstration.

Petitioner testified that, despite the protest, the police did not immediately punish the officers who were involved in Gurdial Singh's death. However, the superintendent of police from Jalandhar later came to Petitioner's village to investigate the incident. Petitioner testified that the superintendent told him that justice would be done and asked Petitioner for the names of the officers involved in Gurdial Singh's death. Petitioner first testified that he gave the superintendent the names of those involved. Petitioner then testified that the superintendent gave Petitioner the names of the officers involved. After further questioning by the IJ, Petitioner testified that Gurdial Singh had given him the names before he died and that Petitioner then gave the names to the superintendent. Apparently, two officers eventually were suspended for their participation in the incident.

Petitioner testified further that, because he had given information to the superintendent of police regarding the identity of the officers who were responsible for Gurdial Singh's death, the local police arrested him on July 22, 1993. The police detained him for 18 days. During that time, Petitioner stated that the police beat him, hung him upside down by the ankles, pulled off one of his fingernails, and threatened to kill him. Although Petitioner was not affiliated with any political party, the police accused him of sheltering terrorists and speaking out against the police. Petitioner stated that, after his release, he spent about a month in a hospital.

The police arrested Petitioner a second time on October 12, 1993. Petitioner testified that, on that occasion, the police held him for about two months. During that time, Petitioner testified, the police beat him and hit him with a rod above his left knee, leaving a deep scar. Petitioner testified that the police told him that they arrested him the second time because he spoke out against the police and was harboring terrorists.

After Petitioner was released, he returned home, where he treated his injuries. He remained at home until February 22, 1995, when he left for Bombay. Petitioner stayed in Bombay for about a month before leaving for the United States. Although Petitioner came to the United States on May 1, 1995, he left his wife and two children in his home village in India. Petitioner testified that, since leaving India, he has had monthly or bi-monthly contact with his wife and that she indicates that the police are still asking about him.

THE IMMIGRATION JUDGE'S ASSESSMENT OF CREDIBILITY

The IJ's denial of relief from deportation was predicated on her finding that Petitioner had not presented credible evidence. In making her adverse credibility finding, the IJ analyzed four factors, which we consider in turn.

A. Demeanor

The IJ found that Petitioner's demeanor while testifying tended to show that he was not truthful:

With regard to [Petitioner's] demeanor, it should be noted that[,] although [he] appeared comfortable on direct examination with regard to questions for which he was prepared[,] both on cross examination and upon questioning by the Court when [Petitioner] was faced with difficult or challenging questions he began to literally jump around in his seat and to squirm rather uncomfortably while testifying.

We ...