Chawla v. Eric H. Holder Jr

• Citation: 599 F.3d 998
• Decision Date: 26 March 2010
• Docket Number: No. 05-74823.,05-74823.
• Parties: Satpal Singh CHAWLA; Jasbir Kaur; Inderpreet Singh Chawla, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

599 F.3d 998

Satpal Singh CHAWLA; Jasbir Kaur; Inderpreet Singh Chawla, Petitioners, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05-74823.

United States Court of Appeals

Ninth Circuit.

Argued and Submitted: Feb. 9, 2010.

Filed: March 26, 2010.

Christopher Stender, San Francisco CA, for the petitioner. Martin Avila Robles, San Francisco, CA, was on the briefs.

William Munick, U.S. Department of Justice, Washington, D.C., for the respondent. Marion E. Guyton, Trial Attorney Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., was on the brief.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A077-427-104, A077-427-105 A077-427-108.

Before DIARMUID F. O'SCANNLAIN STEPHEN S. TROTT and RICHARD A. PAEZ, Circuit Judges.

TROTT, Circuit Judge:

Satpal Singh Chawla ("Chawla"), his wife Jasbir Kaur, and his son Inderpreet Singh Chawla (collectively "Petitioners") petition for review of the Board of Immigration Appeals' ("BIA") decision affirming an immigration judge's ("IJ's") denial of Chawla's applications for asylum, withholding of removal, and Convention Against Torture ("CAT") relief. The BIA's decision was based on an adverse credibility finding. We grant the petition for review and remand for further proceedings consistent with this opinion.¹

I. BACKGROUND

Petitioners are a Sikh family from Delhi India. Chawla, who was the president of a local Young Sikh Association in India, claims he was persecuted by the Indian police on two occasions. According to Chawla, the first incident of persecution occurred on March 15, 1998, when he was arrested by Indian police at a rally attended by Sikhs protesting the implementation of a new helmet law. The helmet law required all Sikhs to wear helmets while driving or riding on two-wheeled vehicles unless they were wearing a turban. The Sikhs were protesting the law because wearing helmets is against the Sikh religion.² Chawla testified that while he was making a speech, rally participants began shouting anti-government slogans and the police began beating them with sticks. The police then arrested Chawla and detained him for seven days, during which time they kicked him, slapped him, beat him with sticks, tied him to a cart, pushed a stick into his mouth, and told him "now make a speech now against us.... Sikh's [sic] like you we are going to wipe them out." Chawla was released after his father paid the police a bribe of 10, 000 rupees.

The second incident of alleged persecution began on May 15, 1998, when Chawla was arrested following an explosion on the bus he was driving. Chawla testified he was driving the bus when a gas cylinder, which belonged to a passenger who sold balloons, exploded on the bus. The police stopped to investigate the explosion, arrested Chawla, and detained him for ten days. Chawla testified that during his detention, the police beat him, broke his right wrist, and accused him of having links with terrorists and deliberately causing the explosion. Chawla was released after his father and two others paid the police a bribe of 50, 000 rupees.

Chawla testified that after he was released, he went to Patiala, Pajabi, and stayed at his brother-in-law's house. He stayed there for only a few weeks, however, because his relatives asked him to leave after the police came looking for him at the house. Chawla testified that he then returned to Delhi and stayed in a Sikh temple for a few days, during which time his wife came to see him and told him that, on three or four occasions during the previous month, the police came to the family home looking for him. Chawla then moved to his father-in-law's house, where he stayed until he, his wife, and his child left India.

Petitioners entered the United States on non-immigrant visas. Prior to the expiration of his visa, Chawla applied for asylum, withholding of removal, and CAT relief. Chawla's wife and son are beneficiaries of the asylum application.

After three merits healings, the IJ found Chawla not credible and denied all forms of relief. The IJ further found that even if Chawla was credible, he had not established that he will suffer future persecution on account of a protected ground.

The BIA dismissed Petitioners' appeal of the IJ's decision. The BIA, citing In re Burbano, 20 I. & N. Dec. 872 (BIA 1994), adopted and affirmed the IJ's adverse credibility finding and thereby affirmed the IJ's denial of Chawla's application for asylum, withholding of removal, and CAT relief. However, the BIA did not adopt or affirm the portion of the IJ's decision finding that even if Chawla were credible, he failed to meet his burden for relief.

II. STANDARDS OF REVIEW

Where the BIA conducts its own review of the evidence and law, appellate review "is limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted." Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (internal quotation marks and citation omitted).

Adverse credibility findings are reviewed under the substantial evidence standard and "will be upheld unless the evidence compels a contrary result." Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007) (emphasis omitted). The agency must articulate a legitimate basis to question the petitioner's credibility and must offer specific and cogent reasons for any stated disbelief. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002) (citation omitted). The articulated reasons "must be substantial and bear a legitimate nexus to the finding." Id. (internal quotation marks and citation omitted). "[W]hen each of the IJ's or BIA's proffered reasons for an adverse credibility finding fails, we must accept a petitioner's testimony as credible." Kaur v. Ashcroft, 379 F.3d 876, 890 (9th Cir.2004).

III. DISCUSSION

Our review is limited to the BIA's decision and the portion of the IJ's decision concerning the adverse credibility finding. We do not review the portion of the IJ's decision that found that Chawla failed to meet his burden of proof for relief even if he were credible because the BIA did not expressly adopt or affirm that holding. See Hosseini, 471 F.3d at 957.

The IJ articulated six reasons for finding Chawla not credible, and the BIA independently articulated a seventh reason. None of the reasons articulated by the IJ or BIA, considered either separately or in combination, provide a legitimate basis to question Chawla's credibility. Therefore, we hold that the adverse credibility finding is not supported by substantial evidence.

A. Submission of Differing Newspaper Articles

At the first merits hearing, Chawla testified that, at the March 15, 1998 rally Indian police beat protestors with sticks and arrested several protestors, including Chawla. Chawla also submitted Exhibit 4G, a newspaper article about the March 15, 1998 rally. The article is from "Current News Today, " a newspaper distributed throughout Delhi, India. The article specifically names Chawla and notes that he gave a speech at the rally, but it does not indicate that any arrests or violence occurred. The last lines of the article reads: "[T]he police headquarters and senior officers have guaranteed... that this law will not be enforced, that they will not issue tickets.... After that the demonstration was ended." ³

The IJ asked Chawla if Exhibit 4G was the only news report of the rally in question and if there were any news reports indicating that protestors were arrested. Chawla replied that he had read some news articles that reported the arrests, but that he did not currently have any of those articles in his possession. Chawla explained that he originally submitted Exhibit 4G to an asylum officer because the asylum officer had asked him for supporting documentation, and Exhibit 4G is whathe obtained through his father. When the IJ asked Chawla why Exhibit 4G did not indicate that anyone at the rally had been arrested, Chawla replied, "Maybe it's not written there, I don't know. There are some people who are against the Sikh's [sic]." When asked on cross-examination why Exhibit 4G indicates that the protestors "had a peaceful meeting with the police officials, " Chawla replied, "[E]ven the press is prone to lying about issues. What can I say about this?" When asked why he would submit Exhibit 4G, an "inaccurate" article, in support of his case, Chawla replied, "This was to prove basically the fact that the rally did in fact take place and so I was asked to furnish some kind of documentation that affected and this was not given to the court, this was submitted to the INS office."

At the end of the first merits hearing the IJ again asked Chawla if Chawla had any reports that might confirm his version of what happened. Chawla replied that he did not have any reports at the present time, but that he would ask his father.

At the second merits hearing, Chawla submitted Exhibit 13, a newspaper article from the "Evening Punjabi Samachar, " which is a newspaper distributed in an area inhabited by a large number of Sikhs. The last lines of Exhibit 13 read,

When Satpal Singh Chawla, president of Young Sikh Association was speaking, some Sikhs raised anti police and anti government slogans. Some of them started pro Khalistan slogans. On this the police force started mercilessly beating the Sikhs. In the rally, many Sikh men, women and children were injured. Satpal Singh Chawla and few other Sikhs arrested.

Although the IJ agreed with the government attorney that Exhibit 13 was "highly suspicious, " the IJ did not question the authenticity of Exhibit 13 in his decision. The IJ questioned Chawla's credibility based on Chawla's submission of Exhibits 4G and 13 because Chawla "never satisfactorily explained, if he did not agree with Exhibit 4G, why he presented it in the first place." The BIA characterized this as a "compelling aspect" of the IJ's decision and concluded that Chawla "should have contemporaneously clarified the article's inaccuracy."

Chawla's...