Singh v. Gonzales, 03-74390.

• Decision Date: 12 June 2007
• Docket Number: No. 03-74390.,03-74390.
• Citation: 491 F.3d 1019
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Balwinder SINGH, Petitioner, v. Alberto GONZALES, United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent.

491 F.3d 1019

Balwinder SINGH, Petitioner, v. Alberto GONZALES, United States Attorney General,^* Respondent.

No. 03-74390.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 14, 2006.

Filed June 12, 2007.

Inna Lipkin, Law Office of Kuldip S. Dhariwal, Fremont, CA, for the petitioner.

Allen W. Hausman, & Blair T. O'Connor, United States Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A72 116 384.

Before: W. FLETCHER and JOHNNIE B. RAWLINSON, Circuit Judges, and THELTON E. HENDERSON,^** District Judge.

Opinion by Judge HENDERSON; Dissent by Judge RAWLINSON.

THELTON E. HENDERSON, District Judge:

Balwinder Singh, a Sikh citizen of India, petitions for review of a final order of deportation issued by the Board of Immigration Appeals ("BIA"), denying his applications for asylum and withholding of removal under the Immigration and Nationality Act sections 208 and 241(b)(3), 8 U.S.C. §§ 1158, 1231(b)(3). The immigration judge ("IJ") failed either to make an express credibility finding, or to analyze whether Singh's testimony and other evidence demonstrated he suffered past persecution and had a well-founded fear of future persecution on the basis of a political opinion imputed to him. Instead, the IJ drew an adverse inference from Singh's refusal to allow access to a Canadian immigration file under his name, and denied his applications on that basis. He erred in doing so. We hold that the inference alone is insufficient to support a denial of asylum. We remand, either for the IJ to make an explicit credibility determination, or for the IJ or the Board to accept Singh's testimony as true and determine whether he has met his burden of proving statutory eligibility for asylum.

Background

Petitioner Balwinder Singh (Singh) is a Sikh citizen of India. He entered the United States through Canada in 1993, and filed an application for asylum and withholding of removal shortly thereafter. In 1999, Singh was served with a Notice to Appear informing him he was subject to removal. Singh concedes he is removable.

Singh contends that he was persecuted in India because of his membership activities in the All India Sikh Student Federation (AISSF), which, among other things, advocates creation of an independent Sikh homeland called Khalistan. At his first asylum hearing, Singh testified that he joined the AISSF in January of 1989. As a member, he participated in demonstrations, distributed political materials, and supported political candidates who called for the creation of a separate Sikh country. He testified to four incidents of persecution which he attributed to his AISSF membership.¹

First, in June of 1989, Singh was arrested after he held a meeting at his farmhouse with other AISSF members. The police held him and the others at the police station for two days. They accused Singh of being "Khalistani" and of aiding militant separatists. He was beaten with batons, hit with straps, and had his legs pulled apart.

Singh was arrested again in October of 1989 after he participated in a rally organized by the AISSF. Police again called him "Khalistani." They beat him with batons and a chair, kicked him, hung him upside down from the ceiling, and forced him to stand on one leg. Police also tried to force him to implicate other AISSF members in crimes. He was held in police custody for 5 days, and released only with the help of members of his village.

The third arrest took place after a rally in April of 1991. Police accused Singh of being a "Khalistani" and of turning the populace against the government. They held him for seventeen days, again beating and torturing him. Singh was treated at a medical clinic for four or five days after his release.

Finally, in March of 1992, Singh was arrested a fourth time because he was wearing a saffron-colored turban (the color of the Khalistani flag) and an AISSF badge. After this arrest, he decided to leave India.

Singh testified that an AISSF agent, who was also an Indian government official, helped him enter the United States. The agent gave him a passport in the name of Sohan Lalf, which he used to leave India. He entered Canada on March 25, 1993. He was detained at the airport, where he was fingerprinted and signed documents. He testified that he was released from detention several days later after the AISSF agent paid his bond, and he crossed the border into the United States on foot several days after that.

At the conclusion of the hearing, the government requested an opportunity to check with Canadian immigration to verify Singh's story about his entry into Canada. The IJ noted that Singh had submitted no documents in support of his asylum application confirming his identity, and that corroborating evidence from Canadian immigration records might support his claim. The IJ granted the continuance.

At the next hearing, the government explained that it had contacted the Canadian refugee immigration board, and that the board had both a file and pending asylum application for a "Balwinder Singh" with the same birth date as the Petitioner here. Singh clarified that he had in fact entered Canada on his own passport; the AISSF agent had taken the Sohan Lalf passport from him during the journey from India, and given him his real passport to use to enter Canada. Asked whether he had filed for asylum in Canada, Singh testified through a translator that "I don't know about it. I don't know what they did" — only that officials at the Canadian airport made him sign papers and took his fingerprints.

The government reported it was unable to obtain the Canadian Balwinder Singh file, however. The Canadian agency refused to disclose the file without a waiver of confidentiality, and Singh had refused to sign the waiver.

At the hearing, Singh explained he refused to sign because he was afraid the AISSF agent who had helped him reach the United States would harm his family if he signed the waiver. "The agent who brought me here . . . told me, if I sign any paper or if I know [sic] anyone else about him, he threatened that he can get my family killed back home." Moreover, Singh testified that in 2000, almost seven years after he arrived in the United States, he received a telephone call from someone who identified himself as a Canadian immigration official. This person knew the name of the AISSF agent, and asked if Singh knew his whereabouts. Singh said he did not. Singh explained that because of the threat and the telephone call, he feared for his family's safety. Even though the American and Canadian authorities already knew the AISSF agent's name, he felt that "[i]f I sign the paper and he comes to know about it, then he would have my family killed."

The IJ denied Singh's application for asylum and his application for withholding of removal to India. The IJ noted Singh's testimony about his arrests by the Punjabi police, but denied relief because of Singh's refusal to allow access to the Canadian immigration file. He reasoned that the file might bolster the merits of Singh's asylum application by corroborating his use of the name Balwinder Singh and the date of his entry into Canada. On the other hand, the file might reveal claims of persecution or facts inconsistent with Singh's testimony.

Although Singh had testified about the AISSF agent's threat to harm his family, and the alleged phone call from Canadian authorities looking for the agent nearly seven years later, the IJ stressed he did not "see any connection" between the threat, the call, and Singh's refusal to sign a waiver.

[T]he only conclusion that the Court would draw in this case is that it must make a negative inference regarding the respondent's claim to asylum. That is, it appears to the Court that the respondent may be withholding information from the Court, namely, information that rests in the Canadian Immigration file.

The IJ used the "negative inference" to undermine all Singh's testimony and other evidence of persecution. He continued:

This negative inference must extend to the time the respondent states that he spent in Canada. If it extends so far, then it must extend to the date that the respondent gave as the date of his departure from India. If it extends so far, then it must extend to the reasons that might have necessitated, if they did so necessitate, the respondent's departure from India. Additionally, the negative inference must extend actually to the merits of the respondent's claim because, indeed, the Canadian immigration file may contain information contradictory to the information that the respondent has provided to the Court on the substance of his application for asylum.

The IJ then summarily concluded that "[f]or the foregoing reasons," Singh was not eligible for asylum.

The Board of Immigration Appeals affirmed the IJ's decision without opinion. Singh petitioned for review.

When the BIA performs no independent review of the IJ's decision and instead defers to the IJ, we review the IJ's decision as the final agency action. San Pedro v. Ashcroft, 395 F.3d 1156, 1156 (9th Cir.2005); He v. Ashcroft, 328 F.3d 593, 595-96 (9th Cir.2003). We review the IJ's decision that an alien has not established statutory eligibility for asylum or withholding of removal, including factual findings, under a "substantial evidence" standard. Zhang v. Gonzales, 408 F.3d 1239, 1246 (9th Cir.2005), citing I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.2004); Hartooni v. I.N.S., 21 F.3d 336, 340 (9th Cir.1994).

Discussion

We must decide whether substantial evidence supports the IJ's decision that Singh failed to prove his eligibility for asylum under 8 U.S.C. § 1101(a)(42)(A).² We hold that it does not. Singh testified at length about incidents of arrest and torture he allegedly suffered because police believed he...