Shah v. INS

Decision Date11 February 2000
Docket NumberNo. 98-70845,98-70845
Citation220 F.3d 1062
Parties(9th Cir. 2000) VARSHA TUSHAR SHAH; FORUM T. SHAH; KUNAL T. SHAH, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Office of the Circuit Executive
CourtU.S. Court of Appeals — Ninth Circuit

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Garish Sarin, Los Angeles, California, for the petitioners.

Joan E. Smiley, Pauline Terrelonge, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

Petition for Review of an Order of the Board of Immigration Appeals; INS Nos. A70-945-916 A70-933-923 A70-933-924

Before: Harry Pregerson, Warren J. Ferguson, and Kim McLane Wardlaw, Circuit Judges.

FERGUSON, Circuit Judge:

Varsha Tushar Shah and her two children, Kunal and Forum, natives of India, petition for review of the Board of Immigration Appeals' (BIA) decision dismissing their appeal from the denial of their applications for asylum and withholding of deportation. Both the BIA and the Immigration Judge (IJ) based their denial of the Shahs' application on an adverse credibility finding. We have jurisdiction pursuant to 8 U.S.C. S 1105a (1996).1 We conclude that the adverse credibility determination rests on impermissible grounds. We deem the petitioners credible, and remand to the BIA.

I. FACTUAL BACKGROUND

The following factual background is drawn from the Shahs' application for asylum, Mrs. Shah's testimony at the asylum hearing, and the corroborating evidence they submitted. Mrs. Shah testified that members of the mainly Muslim and ruling Congress Party (CP) murdered her husband, Tushar Vi Shah, and repeatedly threatened to kill the rest of the immediate family because of their active involvement in the predominantly Hindu Bharatiya Janata Party (BJP).

Mr. and Mrs. Shah became involved in the BJP in 1984. As members, they raised funds for the party and organized rallies. Eventually, Mr. Shah became the BJP's paid employee and was very active in its campaign to win the 1991 election from the CP.

Members of the CP began to target the Shahs in July of 1991. In the time leading up to the 1991 election, Mr. Shah was repeatedly arrested, tortured, and ordered to stop working with the BJP. Although the CP threatened to kill Mr. Shah's family unless he left the BJP, he refused.

The CP's threats against the Shahs only got worse after the election. Its members attacked the family's home, leaving behind a threatening letter. When the Shahs reported the attack, the police refused to assist them. Ignored by the police, the Shahs turned to the BJP for protection. On July 7, 1991, a BJP leader responded in a letter to Mr. Shah's requests for help. In the letter, which the Shahs submitted as corroborating evidence, he reports to Mr. Shah that, "[w]e have asked the congress party to investigate this and are requesting special protection from police dept. or secret service." But he counsels the Shahs to go into hiding for two to three years until "there is safety to yourlife [sic] and that of your family." He adds, the "BJP is really proud of you and thank you for your support and dedication for the party. Since 1984 we have received your valuable time and you have dedicated your life for the spread of our party."

The mounting threats against the Shahs' lives persuaded Mr. Shah that escaping from India might be necessary. He and Mrs. Shah applied for visitors' visas from the United States Embassy, which they received in August of 1991. As Mrs. Shah testified, "he has thought up to obtain a visa and hold it in case of necessity I can -I can use it."

The CP murdered Mr. Shah on November 5, 1991. He had stopped his car at a red light when a truck suddenly smashed into the rear, killing him. The truck driver fled the scene in a getaway car. When Mrs. Shah asked the police for a report of the incident, they refused to give her one because of the family's affiliation with the BJP. In a letter to Mrs. Shah, dated November 21, 1991, which Mrs. Shah submitted as corroborating evidence, a BJP official wrote, "I think we all know who is behind this murder" and warned her that,"[y]ou and kids are the target of these killers and you have to go underground [sic]."

The threats and attacks against the family did not end with Mr. Shah's murder. The CP repeatedly harassed the children at school, until they were eventually forced to withdraw. Members of the CP appeared at the Shahs' house and threw stones. They called at all hours to threaten the family, warning Mrs. Shah that, "we have murdered your husband and we'll murder you and also children."

In fear of their lives, Mrs. Shah and her children abandoned their home in Ahmadabad. At first, they fled to a city called Surat in February of 1992, but they stayed only two months because the CP continued to threaten them. At the urging of the BJP, Mrs. Shah and her two children escaped from India altogether, and arrived in Los Angeles as visitors for pleasure on August 12, 1992.

Mrs. Shah testified that the CP will kill her and her children if they are forced to return to India. Tensions between Muslims and Hindus, frequently erupting into rioting and bloodshed, have escalated. People from home have warned Mrs. Shah against returning. In a letter Mrs. Shah submitted as evidence, dated December 12, 1994, a BJP leader warned her, "[y]our life or that of children is still in great danger if you decide to come back." He advised her, "[d]o not call your family members and give your address to anybody. " She and her children applied for asylum on June 25, 1994. She explained in her asylum application that, "I being a widow of BJP worker will face the smae [sic] fate as that of my husband. Moreover I cannot go back to India as we all fear that we will be killed in India."

In addition to the letters from the BJP, Mrs. Shah introduced several affidavits into evidence to support her claim. The first affidavit, dated January of 1996, is written by a friend of Mr. Shah. It corroborates Mrs. Shah's testimony about the circumstances of her late husband's death stating that Mr. Shah died "due to rival political party had murdered him and managed to convert it into accidental death. " The friend also describes in his affidavit how Mrs. Shah and her children moved repeatedly after Mr. Shah's death until it became too dangerous for them to remain in India. The second affidavit, written by a close relation of the Shahs, corroborates Mrs. Shah's claim that her late husband was a BJP employee and that his death was no accident. The affiant further writes that Mrs. Shah and her children "are not safe and it is not advisable for them to stay in India." In another affidavit, Mrs. Shah's brother describes how Mr. Shah was murdered for political reasons. He adds that, after the murder, "his family had a great shock and suffered their life in dangerous position and they had left their house within short period . . . ."

Mrs. Shah also introduced her late husband's death certificate into evidence. It lists the date of his death as November 5, 1991, which is consistent with Mrs. Shah's testimony, the letters from the BJP, and the affidavits of friends and relatives.

II. IMMIGRATION PROCEEDINGS

The Shahs' asylum hearing was on March 18, 1996. That day, the IJ issued an oral decision denying the Shahs asylum and withholding of deportation on credibility grounds. He cited several reasons for deeming the Shahs not credible: (1) Mrs. Shah's corroborating evidence provided insufficient detail about the circumstances of Mr. Shah's death and why she feared returning to India; (2) Mr. Shah's death certificate listed the date of his death as November 5, 1991, while a stamp on the same document contained a date of April 1, 1991; (3) Mrs. Shah failed to adequately explain why the death certificate did not list the cause of Mr. Shah's death and why she did not present another death certificate which would; (4) the fact that the couple's passports listed Mr. and Mrs. Shahs' occupations as accountant and housekeeper respectively and not as political workers; (5) insufficient evidence of her involvement in the BJP and of the harm she would suffer in India; and (6) an inconsistency between her claim that she would suffer persecution in India as a BJP member and assertions in a State Department country report on India stating that the "BJP's many electoral successes belie the assertion that it is not possible for a BJP member to live peaceably in India. Nor is it credible to allege that . . . the Government systematically persecutes BJP members."

The BIA agreed with the IJ that the Shahs were not credible and it dismissed their appeal on this ground alone. It adopted only three of the six reasons the IJ used to deem them not credible: (1) its observation that the death certificate contained two separate dates; (2) the fact that Mr. Shah's passport identified him as an accountant, rather than a BJP employee; (3) and the State Department's suggestion that a BJP member who claimed that he could not live peaceably in India was not credible. The BIA then added four new bases for its adverse credibility holding: (1) Mrs. Shah's failure to explain why she did not provide the IJ with the records on which the death certificate was based; (2) her failure to authenticate letters from BJP leaders; (3) its belief that it "is unbelievable" that Mr. Shah could have worked for the BJP for more than ten years given the small number of letters the Shahs received; and (4) her failure to present more documentation given her claim that her husband was a BJP employee. Reasoning that its finding of adverse credibility "is dispositive for purposes of eligibility," the BIA did not determine whether the Shahs' evidence, if believed, could meet the asylum standard.

III. DISCUSSION
A. The BIA's Adverse Credibility Determination

We must uphold...

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