403 F.3d 1081 (9th Cir. 2005), 02-74426, Singh v. Gonzales

Docket Nº:02-74426.
Citation:403 F.3d 1081
Party Name:Jarnail SINGH, Petitioner, v. Alberto R. GONZALES,[*] Attorney General, Respondent.
Case Date:April 13, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1081

403 F.3d 1081 (9th Cir. 2005)

Jarnail SINGH, Petitioner,

v.

Alberto R. GONZALES, [*] Attorney General, Respondent.

No. 02-74426.

United States Court of Appeals, Ninth Circuit.

April 13, 2005.

Argued and Submitted July 15, 2004

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[Copyrighted Material Omitted]

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George T. Heridis (argued) and Earle A. Sylva, Rai and Associates, San Francisco, CA, for the petitioner.

Dimple Gupta (argued) and Allen W. Hausman, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A73-220-243.

Before B. FLETCHER, LEAVY, and BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge.

Jarnail Singh, a native and citizen of India, entered the United States without inspection in June 1994. He applied for asylum in November 1996, citing persecution by the Indian police because he supported Sikh separatism. The Immigration Judge ("IJ") denied Singh's applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"), after making an adverse credibility determination. The Board of Immigration Appeals ("BIA") streamlined Singh's appeal and affirmed "the results of the decision below" pursuant to 8 C.F.R. § 1003.1(e)(4) (2002). We review the IJ's decision as the final agency determination, see Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir. 2003), grant the petition for review, and remand.

BACKGROUND

Singh's asylum application and testimony in support of his claims for relief from removal, taken together, stated the following: Singh was an active supporter of the Akali Dal Mann party and the All India Sikh Student Federation. On four occasions, the Indian police persecuted him because of his advocacy for a Sikh homeland of Khalistan. After his final arrest, he went into hiding. His wife and father were harassed and arrested because, while in hiding and going "to different places," Singh did not report to the police in accord with a condition of his last release from detention. In support of his applications for relief, Singh provided documentary evidence, including an affidavit from his father.

After Singh's removal hearing, IJ Anna Ho issued a written decision in which she made an explicit adverse credibility determination, specifying four grounds:

1) Singh omitted two details concerning his first arrest that were recounted in his father's supporting affidavit: a false charge of spousal abuse and a promise he

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made when he was released that he would not associate with Sikh separatists.

2) There were discrepancies between two sets of arrest dates, those that Singh reported to an asylum officer in his asylum interview and those contained in Singh's testimony.

3) There was an inconsistency concerning Singh's role in a 1992 election boycott between Singh's father's affidavit and Singh's testimony.

4) There was a conflict between the father's affidavit and Singh's testimony concerning when Singh's last arrest took place.

As an alternative to the adverse credibility determination based on these four grounds, the IJ held that "even if assuming arguendo, the respondent's testimony to be true, the conditions of India have changed since he left the country." The IJ did not make an explicit finding about whether Singh's testimony, if credible, established past persecution.

Singh appealed to the BIA. Singh's attorney provided explanations in the brief for the grounds relied upon by the IJ in making her adverse credibility determination, stating that:

[Singh] did not mention the false charge of spousal abuse because it was just that [--] a false charge created by the police to embarrass the respondent.... The respondent argues that he did not mention the charge because it did not deserve to be mentioned. ... Concerning the promise not to associate with the Khalistan movement, the respondent also did not consider it worthy of mention. It was a promise extracted from him by the police. He did not give it freely and did not believe that he was bound by it.

In addition, the brief stated "that [Singh] was nervous during his meeting with the asylum officer and that accounts for his errors [during the asylum interview]." On the issue of the election boycott, the brief "maintain[ed] that [Singh] was involved in the movement and that it was not, as the IJ argues, a single event, the boycott of the election.... The fact that he was in prison on the day of the election does not prove that he did not participate in the movement." Finally, the brief argued that the date inconsistency identified by the IJ with respect to Singh's last arrest was "minor."

The BIA affirmed the results of the IJ's decision without opinion. See 8 C.F.R. § 1003.1(e)(4) (2002).

DISCUSSION

I

a. Conflict between Singh's testimony and his father's affidavit with regard to Singh's first arrest

The IJ's adverse credibility conclusion was based in part on her statement that:

Singh testified that he was arrested on April 3, 1990, taken to the police station and beaten. This testimony conflicts with the statement provided by the respondent's father, where the father wrote that the police filed a false charge of spousal abuse against the respondent. The respondent never mentioned this, nor did he mention that he had to promise that he would not associate with the Khalistan movement upon his release on April 3, 1990.

This ground for finding that Singh lied at his removal hearing is not supported by substantial evidence.

First, Singh was not asked about his father's statements regarding the false charges or the promise not to associate on cross-examination, and nothing he said at the hearing conflicted with those statements.

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Where an asylum applicant is "denied a reasonable opportunity to explain what the IJ perceived as an inconsistency in her testimony[, t]he IJ's doubt about the veracity of her story ... cannot serve as a basis for the denial of asylum." Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004). Second, Singh did mention the release condition and the false charge in the declaration he attached to his asylum application:

My father was able to secure our release ... on the condition that they will have no associations with the Federation or the Khalistan movement.... Nevertheless, the following month, the government of Haryana filed criminal charges against me alleging that I had mistreated my wife.... When our case was finally presented before a court, my wife explained that the charges were false.

Cf. Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001) ("The IJ must consider evidence contained in [an] application for asylum."). Third, nothing Singh said at the hearing conflicted with his father's statements; rather, Singh omitted two details. "[T]he mere omission of details is insufficient to uphold an adverse credibility finding." Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000). Moreover, Singh could not have had a nefarious reason for failing to testify to these matters, as they in no way detract from his eligibility for asylum: A false charge of spousal abuse is consistent with persecution on account of political opinion, as is the release condition mentioned by his father. See Shah v. INS, 220 F.3d 1062, 1068 (9th Cir. 2000) (stating that if "discrepancies cannot be viewed as attempts by the applicant to enhance his claims of persecution, [they] have no bearing on credibility" (citations and internal quotation marks omitted)). That Singh did not repeat in his testimony peripheral details that he had already provided to the agency and that his father included in a supporting affidavit provides no support at all for the conclusion that Singh was not "arrested on April 3, 1990, taken to the police station and beaten."

b. Discrepancies between dates of arrest presented at Singh's asylum interview and in his testimony

The IJ concluded that Singh:

testified that he was arrested on April 3, 1990, June 22, 1991, January, 1992, and December 29, 1993. This testimony is inconsistent with his testimony before the asylum officer, wherein he told the asylum officer that he was arrested on March 10, 1991, and in December, 1991.

This adverse credibility finding is based solely on an alleged discrepancy identified by the asylum officer in his "Assessment To Refer."1 For the following reasons, we find that this document cannot support the adverse credibility determination.

Singh represented in his asylum application, which he signed on November 8, 1996, that he was arrested in April 1990, June 1991, January 1992, and December 1993. At his asylum interview on October 14, 1998, according to the Assessment To Refer made that day by the asylum officer, Singh presented

testimony which was not consistent. Applicant's declaration indicates that his second and third arrest[s] were in June 1991 and January 1992; not as he testified on March 10, 1991 and December 1991. Applicant's testimony regarding his third arrest was also inconsistent, he testified that his third arrest was in December 1991, then January 1992, then December 1993 back to December 1991 and then January 15, 1992. Applicant determined that his third arrest was on

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January 15, 1992 after it was pointed out that he could not have been detained for one month [from] December 1991 to January 1992 and be released after the February 1992 elections as he had testified.

The IJ made only one--albeit imprecise--reference to the Assessment To Refer before she rendered her final decision of May 2, 2001, during a brief hearing on March 28, 2001, at which Singh's asylum application was admitted into evidence. There is no indication from the record that Singh received a copy of the...

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