Sidhu v. INS
| Decision Date | 04 May 2000 |
| Docket Number | No. 98-71363,98-71363 |
| Parties | (9th Cir. 2000) MANRAJ SINGH SIDHU, Petitioner, v. IMMIGRATION AND NATURALIZATIONSERVICE, Respondent. Office of the Circuit Executive |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: James R. Browning, Cynthia Holcomb Hall, and Barry G. Silverman, Circuit Judges.
Hilary A. Han, Law Office of Robert B. Jobe, San Francisco, California, for the petitioner.
Christine A. Bither, U. S. Department of Justice, Civil Division, Washington, D.C., for the respondent.
Petitioner Manraj Singh Sidhu is a citizen of India seeking asylum in the United States. On February 22, 1996, an Immigration Judge ("IJ") held a hearing on the merits of Petitioner's application and denied his asylum claim on the basis of an adverse credibility determination. The Immigration Judge also denied Petitioner's request for voluntary departure. On November 9, 1998, the Board of Immigration Appeals ("BIA") affirmed the IJ's denial of asylum, but reversed the IJ's determination that Petitioner is not entitled to voluntary departure. The BIA affirmed the adverse credibility finding after conducting a de novo review of the administrative record. Petitioner filed a timely petition for review by this Court. The BIA had appellate jurisdiction over the IJ's decision under 8 C.F.R. S 3.1(b)(2). We have jurisdiction over this petition pursuant to 8 U.S.C. S 1105a(a)(2), and grant it.
Petitioner is a 26-year-old Indian male who was born and raised in Chandiagarh, Punjab. Petitioner claims that he is a member of the Sikh faith, and belongs to a locally prominent, religious, Sikh family. Petitioner claims that he was persecuted both by Sikh separatists and by the Indian government. Petitioner's persecution claim mainly stems from an incident on his family's farm.
According to Petitioner's testimony, in mid-June, 1989, a group of five men came to the Sidhu home and asked for food and shelter. The men all wore orange clothes and blue or orange turbans, carried small ceremonial swords, and wore long beards. Petitioner's father refused their request for food and shelter. At that point, one of the men pointed a firearm at Petitioner's father and demanded assistance, explaining that the group was engaged in a violent struggle to end the torture being inflicted upon Sikhs in India. Petitioner protested to the militants, arguing that they should not be harassing his family. In response, one of the militants pointed a gun at Petitioner and urged him to help the militants in their cause.
Petitioner's family then complied with the militants' demands, providing them with food and shelter. As they were leaving, the militants stole one of the family's tractors. Petitioner's family could not report the theft to the police immediately because the phone lines were down, and it was evening. Shortly thereafter, the militants were involved in a skirmish with the Indian police. As a result, all the militants either were killed or fled. The following morning, four police officers arrived at the Sidhu farm, having traced the tractor to Petitioner's family.
The police placed Petitioner under arrest on suspicion of being a member of the militant Sikh group. At the nearby city's police station, the officers began interrogating Petitioner. During the course of the interrogation, they repeatedly beat and kicked Petitioner and denied him food. The officers also employed a "roller treatment" whereby the officers forced Petitioner to lie down on a bench while they pressed on a wooden bar that was placed over his legs. This "roller treatment" was quite painful and rendered Petitioner unable to walk for days. The police continually tried to prompt Petitioner to admit membership in the militant organization. Petitioner testified that the police were particularly interested in securing a confession from him so as to embarrass Petitioner's father, a prominent Sikh political activist. If Petitioner confessed to being part of a militant Sikh group, his father's position as a nonviolent, mainstream Sikh activists would be undermined. After nine or ten days, Petitioner's father paid a 50,000 rupee bribe to the police in order to secure his son's release. Nevertheless, the incident had caused the police to open a police file on Petitioner, and the police warned Petitioner's father that any time Petitioner came into the city he would be arrested. Petitioner testified that he felt that if he ever came across the police, they would stage a "false encounter" and use the excuse to kill him.
The following morning, Petitioner fled to New Delhi, where he resided with his uncle. Petitioner testified that he lived as a student in New Delhi, maintaining a very constrained lifestyle so as to avoid encountering police officers. About three months after his arrival, Petitioner had the misfortune of witnessing a kidnaping and getting a close look at the driver of the get-away car. Days later, Petitioner was spotted by one of the kidnapers, and was chased through the town. In light of his police record, Petitioner felt unable to go to the police for assistance. Constantly feeling endangered from the police and the kidnapers, Petitioner obtained a tourist visa to visit the United States and overstayed that visa. Petitioner's family also left India within the next few years.
After a hearing, an IJ denied Petitioner's asylum request on the basis of an adverse credibility finding. The BIA conducted an independent review of the record and also found Petitioner not credible.
Where, as here, the BIA conducts an independent review of the IJ's findings, this Court reviews the BIA's decision and not that of the IJ. See Perez v. INS, 96 F.3d 390, 392 (9th Cir. 1996). This Court must determine whether substantial evidence supports the BIA's adverse credibility finding. See de Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997).
Although the IJ based his adverse credibility determination on a number of factors, the BIA apparently saw only two valid reasons for viewing Petitioner as not credible. First, the BIA noted that Petitioner "gave varying answers regarding his father's date of entry into this country." Second, the BIA noted that Petitioner "did not have his father testify on his behalf, and provided an `explanation' for this failure that we simply do not find believable."
It is clear from the record and the case law that the BIA's first basis for finding Petitioner not credible does not constitute substantial evidence. During the INS's cross examination of Petitioner, the following exchange occurred:
Q. Where does your father live?
A. He is -at present he is in the United States.
Q. What is his immigration status?
A. Same as mine.
Q. When did he come to the United States?
A. I don't remember the exact date. I think it was two or three years back.
Q. Two or three years ago. Approximately what year, sir?
A. '94 -93. I don't have the exact date.
Q. Approximately when?
Petitioner's counsel then objected, stating that the question had been asked and answered. The judge overruled the objection, stating that Petitioner had been "so precise on dates and years on direct examination it's appropriate to further recall on cross." Petitioner then answered the question:
A. '93.
Q. When in 1993?
A. September.
Shortly thereafter, INS counsel pointed out to Petitioner that at his November 14, 1994, asylum interview, he had told his interviewer that his father was living safely on his farm [in India] at that time. Upon hearing this account, Petitioner corrected his earlier testimony, stating that his father came to the United States very shortly after the interview. Petitioner subsequently testified on two separate occasions that his father had indeed come to the United States after his asylum interview, and that he had earlier been forced to guess incorrectly that September 1993 was the date of his father's arrival in the United States. A reading of the record reveals that Petitioner merely made an erroneous guess when asked about the date of his father's arrival, that Petitioner had no incentive to lie about the date, and that Petitioner on several occasions tried to correct his testimony in a manner consistent with his earlier statement at his asylum interview. Moreover, other than INS's desire to catch Petitioner in a lie, it is altogether unclear why the date of his father's arrival in the United States was in any way relevant to Petitioner's claim. No one disputes that Petitioner's father was in India at the time of the alleged persecution.
Under Ninth Circuit law, the discrepancy in the testimony described above is not a sufficient basis for an adverse credibility determination. See Campos-Sanchez v. INS , 164 F.3d 448, 450 (9th Cir. 1999) () (citation and internal quotation marks omitted); Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir. 1997) (); Vilorio-Lopez v. INS , 852 F.2d 1137, 1142 (9th Cir. 1988) () (citation omitted).
In short, the discrepancy between Petitioner's asylum interview and his testimony was based on his admittedly fuzzy recollection of that...
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