Singh v. Eric H. Holder Jr.

• Citation: 638 F.3d 1264
• Decision Date: 03 May 2011
• Docket Number: No. 05–70722.,05–70722.
• Parties: Harminder SINGH, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

638 F.3d 1264

11 Cal. Daily Op. Serv. 5201

2011 Daily Journal D.A.R. 6247

Harminder SINGH, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 05–70722.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 2, 2009.Filed May 3, 2011.

Ajai Mathew (argued), Law Office Ajai Mathew, and Manpreet Singh Gahra (briefed), Law Office of Manpreet Singh Gahra, Berkeley, CA, for the petitioner.Jason S. Patil, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A078–668–359.Before: J. CLIFFORD WALLACE, DIARMUID F. O'SCANNLAIN and ANDREW J. KLEINFELD, Circuit Judges.

OPINION

KLEINFELD, Circuit Judge:

We address the effect of lying in an asylum application and to an asylum officer on an adverse credibility finding.

FACTS

Harminder Singh is a native and citizen of India. He, his parents, and his sisters went to Canada, where they lived for two and a half years. They applied unsuccessfully for asylum in Canada. After the denial, they somehow entered the United States “without inspection,” and Singh applied for asylum here. The Immigration Judge (IJ) denied his claim, the Board of Immigration Appeals (BIA) affirmed without opinion, and Singh petitions for review. We deny the petition.

Singh's application for asylum in the United States, which he swore to be true, was, as he has subsequently acknowledged, a lie. He answered “no” to the question asking whether he had ever filed for or been granted or denied asylum by any other country, and claimed to have resided in India during the two and a half years he actually lived in Canada. He submitted numerous documents with the application, including a sworn affidavit stating that the affiant knew Singh's whole family was active in Sikh politics and he, his father, and his mother had been arrested several times, a statement by an Indian lawyer alleging the same thing, and a hospital certification indicating that Singh had been treated for a week for “multiple blunt injuries on [his] whole body.” Singh subsequently admitted that all these documents were fake, he was never arrested, his mother was never arrested, and Singh had been in Canada at the time of the supposed medical treatment in India.

The political persecution Singh claimed in his asylum application was for Sikh activism. He claimed that he, his father, and his mother had all been arrested repeatedly because of the family's participation in Sikh politics. The police, he said, had tortured both him and his father in the past and had continued their persecution until he left India in 2000. Subsequently, he admitted that he was in Canada from 1997 on, his mother had never been arrested, and Singh himself had never been arrested, nor had he been tortured or beaten by the police. Nor was his family engaged in Sikh activism. He had simply lied.

Singh had two asylum interviews. He testified that at the first one, he verified that everything in his false application was true because Avtar Singh Gill, who had prepared Singh's immigration application, accompanied him and told him to stick to his story. The second time, Gill was not present, but Singh was upset because of the recent death of his mother, and Gill had threatened to tell the government the truth, that he had been in Canada when he had claimed to be in India, so Singh again reaffirmed the truth of the false application.

Subsequently Singh filed what he called “corrections” to his asylum application and testified before the IJ about the falsehoods in it. He conceded that he had left India three years before coming to the United States. The “corrections” disclosed two and a half years' residence and his unsuccessful application for asylum in Canada. According to the new statement, his father had been a successful professional photographer at a tourist location in Kashmir (not the owner of a refrigeration and air-conditioning business as Singh had previously sworn), but had moved to Delhi in 1990 because of Muslim hostility to non-Muslims, and had subleased his Kashmir property to a Muslim. The police had arrested his father in 1996 on suspicion of aiding Kashmiri separatists (not Sikh activism), and after his father was released, the family moved to Canada. Far from being active in Sikh politics, Singh's father was not a member of any political group in India. Singh's new story had nothing of the Sikh activist claim that he had sworn to in the asylum application. Nor did the new story allege that Singh was beaten, or that he, his father, and his mother were arrested multiple times.

Before the IJ, Singh testified that his father was arrested on December 20, 1996, beaten and tortured, and then released on bail. Subsequently, the police repeatedly came to the Singh residence asking about the alleged Kashmiri separatists and threatening that if the family did not tell them, “they would take us into captivity and commit atrocities against us.” The following summer, the family moved to Canada. They remain in touch with their extended family and former neighbors in India.

At Singh's merits hearing, government counsel introduced the fraudulent documents for their bearing on Singh's credibility. Singh conceded that he had perjured himself previously, before the asylum officer, but asked that the IJ listen with an open mind to his testimony since he conceded previously testifying falsely. The IJ did so, rejecting the government's suggestion the past falsehoods alone made a hearing unnecessary. Since the only arrest, torture, and beating claimed was of Singh's father rather than Singh, the IJ asked where the father was. Singh's attorney said that the father was in the United States, but that the father's mental health had deteriorated since his wife's death and he would not be a competent witness. The IJ asked if there was medical evidence to support the claim of incompetence. Singh's counsel conceded that there was none. Counsel added, “[E]very time I speak to him and you mention his wife, he breaks down because of the events they went through.”

Government counsel suggested that Singh needed corroboration, particularly since Singh had previously lied and the only harm claimed was to the father. Since the father also had an asylum application pending, government counsel asked for a written waiver of confidentiality for the father's asylum file so that if he did testify, the father could be effectively cross examined. The asylum regulations limit disclosure of information in an asylum application “without the written consent of the applicant.” ¹ The IJ advised Singh's lawyer that Singh had the burden of proof, and it would be “much heavier in a situation like this where there is—he has completely changed his story and particularly where he admits to having lied under oath at the asylum office.” Because of this, the father's testimony might be crucial corroboration. If he was not going to testify because of incompetence, there should be something more than Singh's lawyer's opinion, such as a psychological evaluation. And if he was, he should be designated on the witness list, and absence of a written waiver might be a problem. After discussion of what dates would be mutually convenient for all counsel and the court, the hearing was adjourned for three and a half weeks, which Singh's attorney said would be fine. No testimony was taken at this first hearing. Testimony was put off until continuation of the hearing at the agreed upon later date.

At the next hearing, Singh's father was in court, though no witness list naming him had been filed. Though Singh's sisters lived with him in Hayward, California, Singh had not brought any of them to the hearing. Singh's counsel said that he still did not think the father was competent to testify, but he had no medical evidence, so the judgment on competence would be one for the court to make. Singh's lawyer proposed to ask the father about his own asylum application and offered an oral waiver of confidentiality. The IJ postponed deciding whether the father could testify until after hearing Singh's own testimony.

Singh then told his new story, about police suspicion that his family aided Kashmiri (not Sikh) separatists. He explained that he had previously given his false story because Gill had prepared his application with the false story and told him that he should not disclose his lengthy Canadian residency because “that's not good for our case.” Singh said that even though the application was in his own handwriting, he had copied from what Gill had written for him. But he feared returning to India, because “they are going to question me about my father, where my father is. If I do not tell them where my father is, they are going to kill me at that time, at that very instant.” He conceded that his father's pending asylum application also contained “errors”: falsely claiming persecution in India when he was actually in Canada, omitting the unsuccessful asylum application in Canada, and leaving out his son Singh in the blanks for “all your children.” Singh said he did not have his passport, because if the family had returned to the Canadian authorities to get their passports back, they would have been deported.

Counsel and the court discussed, both at the beginning and the end of Singh's testimony, what to do about testimony from his father, who was present in the courtroom. Singh's lawyer explained his earlier questioning of the father's competence to testify: “It's not like he's seeing a doctor or anything, but he suffers from severe anxiety attacks and he's most of the time [ ] not very coherent.” He said he had tried to get him medically evaluated Friday of the previous week at Kaiser Permanente (the hearing was on Monday), but it had not been possible. The father had separate counsel, who was not present, but Singh's lawyer said the father's lawyer did not...