Kaur v. Gonzales

• Decision Date: 11 August 2005
• Docket Number: No. 03-73285.,03-73285.
• Citation: 418 F.3d 1061
• Parties: Preet KAUR, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

418 F.3d 1061

Preet KAUR, Petitioner, v. Alberto R. GONZALES,^* Attorney General, Respondent.

No. 03-73285.

United States Court of Appeals, Ninth Circuit.

Submitted February 11, 2005.^**

Filed August 11, 2005.

Richard E. Oriahki, Roman & Singh, LLP, San Francisco, California, for petitioner-appellant Preet Kaur.

Ronald E. Lefevre, Department of Homeland Security, San Francisco, California, Michelle E. Gorden, Department of Justice, Washington, D.C., Thomas H. Tousley, Office of Immigration Litigation, Washington, D.C., for respondent-appellee Alberto R. Gonzales.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before WALLACE, RAWLINSON, and BYBEE, Circuit Judges.

BYBEE, Circuit Judge.

Preet Kaur ("Kaur") petitions for review of a decision of the Board of Immigration Appeals ("BIA"), affirming the Immigration Judge's ("IJ") decision denying her requests for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The IJ denied Kaur's application because he found her not credible. Kaur asserts that the IJ's adverse credibility determination was based upon impermissible grounds and was not supported by substantial evidence. Specifically, she argues that the IJ relied on inconsistencies that may have weakened her claim for asylum, but that had no bearing on her credibility.

The question presented here is significant: Must an IJ ignore repeated and blatant inconsistencies throughout an alien's hearing testimony and applications, simply because, when viewed individually, each inconsistency actually served to weaken her eligibility for relief? We conclude that nothing in our case law mandates such a technical approach to credibility determinations. Accordingly, we hold that, in light of the facts of this case, the IJ's adverse credibility determination was supported by substantial evidence. We deny the petition.

I. FACTS AND PROCEEDINGS BELOW

Petitioner Kaur, a native and citizen of India, entered the United States in March of 1993. Subsequently, in January 1995, Kaur applied for asylum, withholding of removal, and relief under the CAT. In her initial application, Kaur provided certain biographical information about herself, specifically representing that she was not married. She claimed that she was persecuted because her brother and father were members of the All India Sikh Student Federation ("Federation") and had been active in local political affairs. Kaur described in her application how, in December of 1991, more than 65 Punjabi police officers raided her home and arrested her brother and father. She also stated that she had personally campaigned for the boycott of the February 1992 state assembly election in the Punjab region of India. She recalled that she was arrested, in May of 1992, taken to a police station, and raped twice by a local police officer. She represented that she subsequently fled India by traveling first to Nepal, then to Singapore, Canada, and finally, the United States.

After submitting her application, an INS officer interviewed Kaur on February 15, 1995. During this interview, Kaur testified to the officer consistent with her original application. She also swore that the contents of her asylum application and the attached declaration were true.

At a hearing on the merits of her asylum application, Kaur submitted a revised application accompanied by another written declaration. In her second application, Kaur's recitation of her biographical information as well as the events leading up to her departure from India changed dramatically. Kaur now stated that she was not in fact single, but married with a child. Rather than actively campaigning for the February 1992 election boycott, Kaur now maintained that her political activities were limited to voting in the November 1989 elections. In addition, Kaur stated that instead of the 65-70 police officers she originally claimed raided her home in December of 1990, there were actually only 8-12 officers, and the year was 1991. Kaur went on to declare that it was her brother and grandfather, not her father, who were active in Indian politics and who had been arrested and beaten by the Punjabi police.

Importantly, in her second application, Kaur stated that, in fact, she was not raped during the May 1992 arrest, but only interrogated, threatened, and released to her family the next day. One of the few consistencies between the two written statements that Kaur offered was that she had fled India by way of Nepal, Singapore, and Canada before entering the United States. But even this minor point of agreement vanished during her oral testimony.

At a hearing before an IJ on the merits of her asylum application further inconsistencies emerged. Kaur testified first that her grandfather was a member of the Federation, but later represented only that it was "possible" that he was a member. She also changed the route by which she arrived in the United States. In contrast to her first and second asylum applications, Kaur testified at the hearing that she traveled first to Germany, then to Canada, and finally to the United States. Significantly, Kaur admitted to the IJ that she knowingly lied to the INS officer, in particular stating that she was single, for the express purpose of ensuring that her husband could file an asylum application if hers was denied.

Reviewing the numerous contradictions between her oral testimony and her asylum applications, the IJ ruled that Kaur was not credible. Accordingly, the IJ denied her applications for asylum, withholding of removal, and relief under the CAT. The BIA affirmed the IJ's decision without opinion and this timely petition for review followed.

II. STANDARD OF REVIEW

When the BIA affirms an IJ's decision without opinion, we review the IJ's decision as the final agency determination. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004). This court reviews an IJ's credibility determination for substantial evidence. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1102(9th Cir.2004). We accord special deference to an IJ's credibility determination, and will only exercise our power to grant a petition for review when the evidence "compel[s] a contrary conclusion." See Malhi v. INS, 336 F.3d 989, 993(9th Cir.2003). However, an IJ must provide specific and cogent reasons to support an adverse credibility determination. See He v. Ashcroft, 328 F.3d 593, 595 (9th Cir.2003).

III. ANALYSIS

In this case, the issue is not whether the IJ provided specific and cogent reasons to support his credibility determination, but rather whether the proffered reasons were based on impermissible grounds. We conclude that they were not.

It is well settled in our circuit that minor inconsistencies that do not go to the heart of an applicant's claim for asylum cannot support an adverse credibility determination. Akinmade v. INS, 196 F.3d 951, 954 (9th Cir.1999) (citing Martinez-Sanchez v. INS, 794 F.2d 1396, 1400(9th Cir.1986)). Additionally, in Damaize-Job v. INS, we first announced that "minor discrepancies in dates that are attributable to the applicant's language problems or typographical errors and cannot be viewed as attempts by the applicant to enhance his claims of persecution have no bearing on credibility." 787 F.2d 1332, 1337 (9th Cir.1986). See also Wang v. Ashcroft, 341 F.3d 1015, 1022 (9th Cir.2003) (observing that "minor discrepancies" on points incidental to the asylum applicant's claim of persecution — namely dates, normal work hours, and related details — could not support an adverse credibility determination); cf. Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir.1988) ("[D]iscrepancies in dates which reveal nothing about an asylum applicant's fear for [her] safety are not an adequate basis for an adverse credibility finding.").¹

Later cases have expanded the principle beyond dates, language problems and typographical errors, elevating its status to that of a general rule. See, e.g., Stoyanov v. INS, 172 F.3d 731, 736 (9th Cir.1999) (stating that where the inconsistency in the applicant's testimony lessens the degree of persecution she experienced, such inconsistency "generally does not support an adverse credibility determination") (emphasis added). The concern underlying each of our decisions in this arena has been to avoid premising an adverse credibility finding on an applicant's failure to remember non-material, trivial details that were only incidentally related to her claim of persecution. See, e.g., Osorio v. INS, 99 F.3d 928, 931(9th Cir.1996) ("[T]rivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible.") (quotations omitted); Vilorio-Lopez, 852 F.2d at 1142(observing that "[m]inor inconsistencies" that "reveal nothing about an asylum applicant's fear for his safety are not an adequate basis for an adverse credibility finding"). This concern is heightened where the alien receives the assistance of a translator to aid in the preparation of her asylum application. See, e.g., Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003) ("Inconsistencies due to an unscrupulous preparer, without other evidence of dishonesty. . . do not provide a specific and cogent basis for an adverse credibility finding.") (internal citation omitted) (emphasis added).

The petitioner in this case would have us ignore the mass of serious, repeated and blatant inconsistencies in her testimony, and instead focus on the singular fact that one of the most damaging of her contradictions — the revelation that she was not in fact raped by the police — only served to weaken her claim. In other words, Kaur argues that because she eventually settled upon a story far less dramatic than its precursors, we must ignore her inconsistencies altogether. It strains credulity to hold that the evidence presented at the asylum hearing compels us to find Kaur believable for the sole reason that she...