Singh v. Lynch, 08–74212.

• Decision Date: 21 September 2015
• Docket Number: No. 08–74212.,08–74212.
• Citation: 802 F.3d 972
• Parties: Pavittar SINGH, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

802 F.3d 972

Pavittar SINGH, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 08–74212.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 7, 2014.

Decided Sept. 21, 2015.

Monica Ganjoo, Ganjoo Law Offices, San Francisco, CA, filed the brief for petitioner.

Tony West, Assistant Attorney General, U.S. Department of Justice, Civil Division, Washington, DC, filed the brief for the respondent. With him on the brief were Stephen J. Flynn, Assistant Director, and Janette L. Allen, Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A098–501–520.

Before: SIDNEY R. THOMAS, Chief Judge, and DIARMUID F. O'SCANNLAIN and M. MARGARET McKEOWN, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide, in this asylum case under the REAL ID Act, whether an Immigration Judge's adverse credibility determination may be supported exclusively by background evidence in the record.

I

Pavittar Singh, a native and citizen of India, entered the United States on or about January 4, 2007, as a nonimmigrant visitor, with authorization to remain in the United States for six months. However, on April 19, 2007, the Department of Homeland Security served Singh with a Notice to Appear, charging him as removable for failure to comply with the conditions of his nonimmigrant status. Specifically, Singh was charged as non-compliant because he was employed for wages at a convenience store without authorization of Immigration and Customs Enforcement (“ICE”). Singh then sought relief from removal by applying for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

A

In due course, Singh appeared before an Immigration Judge (“IJ”) and testified that he had suffered persecution on account of his membership in the Nirankari sect of the Sikh faith. He asserted that on January 16, 1998, terrorists entered his family's shop in India, derided his Nirankari beliefs, and demanded money. Additionally, Singh testified that after he reported this incident, the police refused to investigate and instead accused him of harboring Sikh separatists. Singh claimed he suffered additional police harassment when, on January 19, 2005, he was arrested, accused of harboring terrorists at his wedding, and beaten while in custody. Singh also claimed that on October 16, 2006, he was yet again accosted by “Sikh terrorists,” who took his property and threatened to kill him if he supported the Nirankari mission. He testified that a few days later the police again arrested him, accused him of supporting “Sikh terrorists,” and beat him.

B

However, the IJ found Singh's testimony not credible and denied his applications for relief. While acknowledging that Singh testified consistently, the IJ relied on background evidence in the record to conclude that his testimony was implausible. The IJ noted that an Amnesty International report submitted by Singh not only failed to “support his claim that the armed opposition continues to operate,” but also, by showing that armed militants were no longer active, undermined his allegation that such militants recently attacked him. The IJ also found the reports submitted by the Government further suggested that militant activity had “ended years ago.” Thus, she found, Singh's claim that he was attacked by Sikh militants in 2005 and 2006 was not plausible.

The Board of Immigration Appeals (“BIA”) dismissed Singh's appeal from the IJ's decision, agreeing with her that his “account is implausible because the documentary evidence demonstrates that the armed opposition in Punjab ended in the 1990's.” Noting that the BIA must defer to IJ credibility findings “unless they are clearly erroneous” and that “[i]mplausible testimony can support an adverse credibility finding,” the Board agreed with the IJ's finding that Singh was not credible.

II

The only issue presented on appeal is whether the IJ's adverse credibility determination was supported by substantial evidence.

A

The standard of review of BIA determinations is well settled. As we have explained, “[w]hen the BIA conducts its own review of the evidence and law rather than adopting the IJ's decision, our review ‘is limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted.’ ” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.2010) (quoting Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) ). However, “when, as here, the BIA's ‘phrasing seems in part to suggest that it did conduct an independent review of the record,’ but the BIA's analysis on the relevant issues is confined to a ‘simple statement of a conclusion,’ we ‘also look to the IJ's oral decision as a guide to what lay behind the BIA's conclusion.’ ” Id. (quoting Avetova–Elisseva v. I.N.S., 213 F.3d 1192, 1197 (9th Cir.2000) ).

Credibility determinations are findings of fact, which are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) ; Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir.2011) ; Singh–Kaur v. I.N.S., 183 F.3d 1147, 1149–50 (9th Cir.1999). Under 8 U.S.C. § 1252, our task “is to determine whether there is substantial evidence to support the BIA's finding, not to substitute an analysis of which side in the factual dispute we find more persuasive.” Molina–Morales v. I.N.S., 237 F.3d 1048, 1050 (9th Cir.2001) (quoting Marcu v. I.N.S., 147 F.3d 1078, 1082 (9th Cir.1998) ). Thus, a credibility determination will only be reversed if “the evidence not only supports [a contrary] conclusion, but compels it.” Rizk, 629 F.3d at 1087 (quoting I.N.S. v. Elias–Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) ) (alterations in original).

Singh concedes that because he filed his application after May 11, 2005, the REAL ID Act governs the determination of his credibility. See Shrestha, 590 F.3d at 1039.

B

Singh asserts that the adverse credibility determination is not supported by substantial evidence, because under the REAL ID Act his specific testimony cannot be discredited solely by reliance on background documents. Whether the REAL ID Act permits such background documents to serve as the sole basis for an adverse credibility finding appears to be a question of first impression. However, it is easily resolved by the clear language of the Act itself, which forecloses Singh's argument.

The two cases Singh relies on for support—Zheng v. Ashcroft, 397 F.3d 1139 (9th Cir.2005), and Singh v. Gonzales, 439 F.3d 1100 (9th Cir.2006), overruled on other grounds by Maldonado v. Lynch, 786 F.3d 1155, 1163–64 (9th Cir.2015) (en banc)—are pre-REAL ID Act cases that do not consider the Act's significant restriction of appellate review of credibility determinations.¹ See Bingxu Jin v. Holder, 748 F.3d 959, 964 (9th Cir.2014) (“The REAL ID Act ‘significantly restricted’ appellate review of adverse credibility findings,” and “ ‘only the most extraordinary circumstances will justify overturning an adverse credibility determination.’ ” (quoting Shrestha, 590 F.3d at 1041 )); Jibril, 423 F.3d at 1138 n. 1 ; Kaur v. Gonzales, 418 F.3d 1061, 1064 n. 1 (9th Cir.2005) ; see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165–68 (2d Cir.2008) (per curiam) (explaining that the “REAL ID Act freed an IJ” from the various requirements courts of appeals imposed on credibility determinations).

Moreover, the REAL ID Act explicitly allows the BIA and IJ to base their credibility determinations on background evidence in the record. “Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on,” among other things, “the inherent plausibility of [Singh's] account” and “the consistency of [Singh's] statements with other evidence of record (including the reports of the Department of State on country conditions) ... without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of [Singh's] claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) ; cf. Angov v. Lynch, 788 F.3d 893, 904 (9th Cir.2013) (explaining that this Court and the BIA permissibly rely upon State Department country reports “all the time” (citing 8 U.S.C. § 1158(b)(1)(B)(iii) )).

The IJ thus acted within the confines of the REAL ID Act by considering the totality of the circumstances and basing her credibility determination on the inherent implausibility of Singh's account and its inconsistency with record evidence, including the Amnesty International report. The IJ considered evidence submitted by Singh and the Government and found such evidence did “not support [Singh's] claim that the armed opposition continues to operate.” She noted that the Amnesty International report affirmatively indicated that the armed Sikh militancy ended in the 1990s. Ultimately, based on Singh's testimony and the documents submitted by both Singh and the Government, the IJ found implausible Singh's account that he was attacked by Sikh militants. The BIA similarly concluded that Singh's account was rendered implausible by the documentary evidence that “demonstrates that the armed opposition in Punjab ended in the 1990's.”²

Given the language of the REAL ID Act, the IJ's finding and the BIA's conclusion of implausibility based on record evidence is permissible.³

C

Our precedent also forecloses Singh's argument that the BIA's decision was based on speculation.

Though Singh is correct that an adverse credibility determination cannot be based on complete speculation and conjecture, here the IJ and BIA supported the determination with specific citations to record evidence. See Part II.A., supra; see also Shrestha, 590 F.3d at 1042 (requiring “that the IJ state explicitly the factors supporting his or her adverse credibility determination” and avoid “[b]oilerplate opinions” that “are devoid of statements that evidence an individualized review of the petitioner's contentions and...