Kataria v. Immigration & Naturalization Serv.

• Decision Date: 21 November 2000
• Docket Number: No. 99-70796,99-70796
• Citation: 232 F.3d 1107
• Parties: (9th Cir. 2000) PANKAJ KARAN SINGH KATARIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1107

232 F.3d 1107 (9th Cir. 2000)

PANKAJ KARAN SINGH KATARIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-70796

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 4, 2000

Filed November 21, 2000

[Copyrighted Material Omitted] Deborah L. Smith, Simmons, Ungar, Helbush, Steinberg & Bright, San Francisco, California, for the petitioner.

Cindy S. Ferrier, United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, D.C., for the respondent.

Petition for Review of a Decision of the Board of Immigration Appeals. INS No.A76-847-225

Before: Dorothy W. Nelson, David R. Thompson, and Stephen S. Trott, Circuit Judges.

THOMPSON, Circuit Judge:

Pankaj Karan Singh Kataria, a native and citizen of India, petitions for review of an order of the Board of Immigration Appeals ("BIA") dismissing his appeal of an immigration judge's ("IJ") denial of his application for asylum and withholding of removal. Kataria alleged past persecution and a well-founded fear of future persecution on account of his membership in the All India Sikh Student Federation, a group seeking the establishment of the independent Sikh state of Khalistan. We have jurisdiction pursuant to 8 U.S.C. S 1252(b)(1). We conclude that the BIA erred by denying Kataria's application on the ground that he failed to provide documentary evidence to corroborate his testimony. Accordingly, we grant the petition for review.

I.

Kataria is a 36-year-old native and citizen of India who entered the United States on July 18, 1997, with a non immigrant business visitor's visa. On March 23, 1998, he signed and swore to an application for asylum and withholding of removal alleging persecution on account of race, religion, nationality, membership in a social group and political opinion. By issuance of a notice to appear on April 6, 1998, the Immigration and Naturalization Service charged Kataria with removability under 8 U.S.C. S 1227(a)(1)(B) for overstaying his visa.¹

At his asylum hearing, Kataria testified that he is a Sikh and that he was raised in the Punjab.² In 1994, he joined the All India Sikh Student Federation ("AISSF"), a group seeking the establishment of the independent Sikh state of Khalistan in what is now the state of Punjab. According to his testimony, Kataria served as treasurer for the AISSF and his duties included procuring contributions to send poor children to school, arranging conferences, posting AISSF posters that advocated boycotting elections, and assisting girls from AISSF families to marry into good families. Kataria also stated that he used his personal wealth as the owner of a shopping complex to establish and maintain a sewing school with the purpose of giving widows and orphan girls a practical skill.

Kataria testified that the police were angry with him for raising money to benefit the families of Sikh extremists who had been killed by the police, and that the police warned him to cease his activities. In June 1995, Kataria was asked to report to the police station after returning home from a commemoration for those killed in the Indian police attack on the Sikh Golden Temple many years earlier. At the police station, Kataria was berated, slapped, and accused of helping extremists. He was detained for three to four hours. The police warned Kataria to stop working for the AISSF.

In August 1995, Indian police officers arrested Kataria a second time while he was attending the wedding of the sister of a murdered member of the AISSF. The expenses of the wedding were paid for by the AISSF and Kataria. According to his testimony, Kataria was arrested because the police had previously warned him not to associate with extremists and because the police believed that he, as treasurer of the AISSF, had information regarding how the bride and the bride's family had been able to afford such an elaborate and expensive wedding. Following his arrest, Kataria was tortured over the course of three days with beatings and electric shock. He was released after his father paid a bribe.

Fearing that the police would re-arrest him, Kataria then went into hiding. He changed his identity by cutting his hair and shaving off his beard. Ultimately, frightened of "elimination," Kataria obtained a visitor's visa to participate in a Punjabi conference to be held in Milwaukee, Wisconsin. He left India in July 1997, and came to the United States.

In response to questions from the IJ about his commitment to the Sikh religion, Kataria testified that he currently wears only one of the five symbols of Sikh faith -a special undergarment known as a "kachch."³ Kataria stated that the "kara" he had been wearing had broken nearly two months before the hearing. Kataria did not explain why he does not wear the remaining three Sikh symbols, although he testified that he cut his hair, shaved his beard, and stopped wearing a comb in India between December 1995 and January 1996 in an effort to change his identity following his second arrest by the police.⁴

In response to questions from the IJ about why the Sikh name "Singh" appeared on his asylum application, but not on his passport or visa, Kataria explained that he did not use the name "Singh" on his passport or visa "because people are afraid that they won't be issuing me a passport."

In response to questions from the IJ about his membership in the AISSF, Kataria conceded that he had no evidence of his affiliation with the AISSF, but stated that he could produce a receipt of his membership "if it's available. " He added that he did not have a receipt of his membership because he was not able to carry documents with him when he left India.

Finally, in response to questions about why his asylum application stated that he resided in New Delhi from birth until he left India in July, 1997, when he had testified at the hearing that he had lived in the Punjab his entire life, Kataria explained that the application was typed for him and that "I just signed the application."⁵ Kataria further explained that he was raised in the village of Lallai Kalan in the Punjab.⁶ He attended school in Lallai Kalan until the tenth grade. Then, in order to pursue his education, he attended high school in neighboring Faridabad before returning to attend Punjab University in Chandigarh. Upon receiving his bachelor's degree from Punjab University, Kataria returned to Lallai Kalan where he managed the family's shopping complex located near his village. Kataria testified that the New Delhi address was listed on his asylum application because he received his visa in New Delhi and this was his last address before leaving India.

At the conclusion of Kataria's testimony, the IJ offered Kataria a continuance to give him an opportunity to obtain documentary support of his asylum claim. The IJ stated that he was concerned about mistakes in Kataria's application, and suggested that Kataria provide evidence pertaining to his addresses, residences and employment while in India, his association with the Sikh religion and his village in the Punjab, and the alleged arrests, injuries and medical treatment associated with Kataria's asylum claim.

A continued hearing was held two and a half months later. At that hearing, Kataria appeared without any additional documentation. He explained that, although his sister and mother still resided in India, his sister no longer maintained contact with his family after her marriage and his mother was too elderly and uneducated to provide assistance. Kataria also stated that he knew of no one who could assist him with his claim.

The IJ denied Kataria's application for asylum and withholding of removal, but granted him the privilege of voluntary departure on the condition that he post a $1000 bond and exhibit a valid Indian passport. Explaining his decision, the IJ discussed concerns about whether Kataria was in fact a Sikh, whether he actually lived in the Punjab, whether he was genuinely active in the AISSF, and whether he was treated for injuries sustained during his detention by police. The IJ then stated:

The Government in this particular case is correct. This case falls generally within the decisions of the Board of Immigration Appeals in In re S-M-J-, Int. Dec. 3303 (BIA 1997); In re M-D-, Int. Dec. 3339 (BIA 1998); and Int. Dec. In re B-B(BIA 1998). As the Board of Immigration Appeals has indicated, where corroborating evidence could reasonably be expected to be obtained, then the alien has the obligation and affirmative duty to corroborate his claim to the degree that he can or otherwise reasonably explain his failure to do so. [Kataria] has not done that. Since his testimony standing alone is not considered sufficiently credible to justify the relief which he seeks, the Court will find that he has [not] sustained his burden of proof both as to asylum and withholding of deportation as to India.

The BIA dismissed Kataria's appeal of the IJ's decision for the reasons stated therein and adopted the IJ's findings and conclusion.⁷ The BIA added:

[T]he regulations, our precedent, and precedent from the Ninth Circuit Court of Appeals provide that a respondent's testimony, if credible, "may be sufficient to sustain the burden of proof without corroboration" (emphasis added). 8 C.F.R. S 208.13(a). See also Matter of Mogharrabi, supra, at 445 (observing that the testimony of an applicant for asylum, standing alone, may suffice to establish his persecution claim "where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear"); Campos Sanchez v. INS, 164 F.3d 448 (9th Cir. 1999). We have also held, however, that where there are discrepancies in the record which are not sufficient to warrant an adverse credibility finding but that never the less raise questions about the respondent's claim, the respondent should resolve these problems by...